Entry vs. Admission

Until 1996 (when IIRIRA was enacted), foreign nationals who “entered” the U.S., even surreptitiously, by evading inspection, were subject to deportation grounds and procedures. Foreign nationals who had not entered the United States were subject to exclusion grounds and procedures. Foreign nationals in deportation proceedings had greater constitutional and procedural rights than foreign nationals in exclusion proceedings. This gave an advantage to those foreign nationals who had crossed the border illegally and successfully evaded inspection rather than abide by the law and seek admission at the border.

To eliminate this advantage, in 1996 Congress replaced the term “entry” with “admission” to mean the lawful entry of a foreign national into the country after inspection. See INA § 101(a)(13), 8 U.S.C. § 1101(a)(13). Thus, only “admitted” foreign nationals have greater rights than nonadmitted foreign nationals under U.S. immigration law.

The IIRIRA also consolidated exclusion and deportation proceedings into one “removal” proceeding. Although there is now only one type of proceeding, some differences remain that are functionally equivalent to pre-IIRIRA exclusion and deportation.

Consistent with pre-IIRIRA law, a foreign national who has not been admitted to the U.S. has the burden to prove admissibility. For example, a foreign national in removal proceedings who is seeking admission has the burden of proof to show “clearly and beyond doubt” that he or she is entitled to be admitted and is not inadmissible under INA § 212, 8 U.S.C. § 1182. By contrast, if a foreign national has been admitted to this country, the government has the burden to show deportability “by clear and convincing evidence” that the foreign national is deportable.

Grounds for Deportability

The ability to deport unwanted immigrants has been in the immigration law since 1798, when the President granted authority to deport any foreign national found “dangerous to the peace and safety of the U.S.” The U.S. Supreme Court has repeatedly sustained Congress's power to provide for the banishment of foreign nationals from the U.S. As discussed in the first chapter on immigration, the Court has justified this power as being inherent in our nation's sovereignty—the same basis as Congress' power to determine inadmissibility. The Court has rejected constitutional challenges to Congress's deportation authority, holding that deportation is a civil rather than a criminal sanction. In addition, today, the process is even swifter, due to the streamlined removal proceeding enacted with IIRIRA.

Removal Procedures

INA § 237, 8 U.S.C. § 1227, contains six broad categories of grounds for deportation, many with numerous subparts. Some grounds of deportability include:

• Smuggling;
• Marriage or document fraud;
• Committing a criminal offense, such as an aggravated felony or a crime involving moral turpitude;
• Drug offenses;
• Firearms offenses;
• Domestic violence; and
• Terrorist activities or activities involving a threat to national security.

Example: Jack entered the U.S. from Canada illegally a year ago. To gain permanent residency, he married a U.S. citizen. Their marriage was discovered to be a sham. As such, Jack is subject to removal.

Some but not all of these deportation grounds may be waived. A foreign national might seem safe from removal on some grounds after five years. However, if the foreign national leaves the country and then reenters, the reentry may activate the grounds of deportability again from the date of reentry.

Expedited Removal

“Expedited removal” is the term coined by the IIRIRA for the streamlined procedures by which immigration officers may summarily determine that a foreign national is not admissible to the U.S. This is also sometimes called “summary exclusion.” Under INA § 235(b), 8 U.S.C. § 1225(b), if an immigration officer determines that an arriving foreign national is inadmissible because he arrived with either no immigration documents or fraudulent documents, the officer may order the foreign national removed from the U.S. without a regular removal hearing. If, however, the foreign national indicates either a fear of persecution or an intention to apply for asylum, the officer must refer the foreign national for an interview by an asylum officer.

Most undocumented migrants stopped by immigration officials at a U.S. port-of-entry (POE) may find themselves inadmissible and thereby subject to expedited removal because they often come to the country with no documents or with false documents.

However, some of the individuals arriving at an Immigration POE without proper documentation are genuine asylum-seekers fleeing persecution in their home country. Because of the circumstances of their flight from their homes and departure from their countries, they may arrive in the U.S. with no documents or with fraudulent documents obtained as the only way out of their country. Any person subject to expedited removal who raises a claim for asylum—or expresses fear of removal—will be given the opportunity to explain his or her fears to an Asylum Officer.

The role of the Asylum Officer is as an Asylum Pre-Screening Officer (APSO) who interviews the person to determine if he or she has a “ credible fear of persecution or torture.” This is a standard that is broader—and the burden of proof easier to meet—than the “ well-founded fear of persecution” standard needed to obtain asylum. Those found to have a “credible fear” are referred to an Immigration Judge (“IJ”) to hear and then judge their asylum claims. This places the asylum seeker on the “defensive” path to asylum. Most individuals who are found to have a credible fear of these are almost immediately released to relatives or community groups, or on their own recognizance. Some are not released, however, and instead are detained while their asylum claims are pending with the IJ.

Relief from Removal

There are many forms of discretionary relief from removal or deportability and inadmissibility. One common kind of relief from removal is voluntary departure (“VD”). VD can be granted by the government for up to 120 days before removal proceedings, or for up to 60 days by an immigration judge at the end of removal proceedings.

The IIRIRA limited voluntary departure in several ways. For example, extensions of voluntary departure are no longer possible. Nor may a foreign national granted voluntary departure obtain work authorization. This limits the usefulness of voluntary departure to help foreign nationals who have fallen out of status.

The last chapter on immigration law will cover the details of changing immigration status to lawful permanent resident and the ultimate prize for some immigrations— U.S. citizenship through naturalization.