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Illegal removal of people from the United States

From EverybodyWiki Bios & Wiki


File:US Immigration and Customs Enforcement arrest.jpg
Officer of the U.S. Immigration and Customs Enforcement (ICE) arresting a person (c. 2004).

Under the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA), illegal removal of people from the United States[1] violates the United Nations Convention against Torture (CAT) and other international law.[2][3]

Legal background[edit]

Further information: Miscarriage of justice

Before the enactment of IIRIRA, then-U.S. President Bill Clinton had issued a presidential directive in which he stated the following:

Our efforts to combat illegal immigration must not violate the privacy and civil rights of legal immigrants and U.S. citizens. Therefore, I direct the Attorney General... and other relevant Administration officials to vigorously protect our citizens and legal immigrants from immigration-related instances of discrimination and harassment....[4]

To adequately prevent an illegal removal from ever occurring (and protect people from it), especially those who have been admitted as stateless refugees,[5][6] Congress added in the Immigration and Nationality Act (INA) the following explicit statement:

In the proceeding the Service has the burden of establishing by clear and convincing evidence that, in the case of an alien who has been admitted to the United States, the alien is deportable. No decision on deportability shall be valid unless it is based upon reasonable, substantial, and probative evidence.[7][3]

Inside the U.S. Supreme Court in Washington, D.C.

The above two-sentenced statement of Congress did not exist anywhere in the INA before the enactment of IIRIRA in 1996.[8] Since then, it has been well recognized by the United States Department of Homeland Security (DHS) and Board of Immigration Appeals (BIA), including by all the federal courts.[9] Prior to the enactment of IIRIRA, the language of section 1229a(c)(3)(A) only existed in federal regulations, which is adaptation of immigration-related Supreme Court holdings from the 1940s to 1960s.[10] There have been cases in which the Service (now the DHS) has removed lawfully admitted people from the United States without fulfilling its burden under section 1229a(c)(3)(A).[11][12][13][14][6] Some people have been removed from the country while their cases were still pending, and even a stay of removal had been granted in each case.[15]

Appropriate relief for legal immigrants and nationals of the United States[edit]

Further information: Legal remedy

Cases that involve illegal removal of people from the United States can be reopened and investigated at any time.[16][3][17][18][19] Not only from within the United States, they can be reopened from anywhere on Earth.[20] In such cases, if one federal court of appeals becomes deliberately indifferent and refuses any service or a remedy then the victim may simply file his or her case in another federal court of appeals,[21][22] until all the legal and factual issues are properly resolved.[23] Alternatively, a victim of illegal removal from the United States may simultaneously take his or her case directly to the Supreme Court.[24][25]

See also[edit]

Notes and references[edit]

This article in most part is based on law of the United States, including statutory and latest published case law.

  1. ↑ "Tomczyk v. Garland, ___ F.4th ___, No. 16-72926". Ninth Circuit. Casetext.com. December 14, 2021. pp. 8–9. At the time IIRIRA was enacted, Black's Law Dictionary defined 'illegal' to mean '[a]gainst or not authorized by law.'
  2. ↑ "Article 3". Office of the United Nations High Commissioner for Human Rights. No State Party shall expel, return ('refouler') or extradite a person to another State where there are substantial grounds for believing that he would be in danger of being subjected to torture.
  3. ↑ 3.0 3.1 3.2 "Alabama v. Bozeman, 533 U.S. 146 (2001)". U.S. Supreme Court. Harvard Law School. June 11, 2001. p. 153. The word 'shall' is ordinarily the language of command. (internal quotation marks omitted)
  4. ↑ "Presidential Documents: Anti-Discrimination" (PDF). Federal Register, Vol. 60, No. 28. U.S. Government Publishing Office. February 10, 1995. p. 7888. (emphases added)
    • "Zuniga-Perez v. Sessions, 897 F.3d 114". Second Circuit. Harvard Law School. July 25, 2018. p. 122. The Constitution protects both citizens and non-citizens.
    • "Calderon-Rosas v. Attorney General, 957 F.3d 378". Third Circuit. Casetext.com. April 27, 2020. p. 385. The Supreme Court has explained that the Fifth Amendment entitles aliens to due process of law in deportation proceedings... because the Due Process Clause applies to all persons within the United States, including aliens, whether their presence here is lawful, unlawful, temporary, or permanent. (citations and quotation marks omitted)
    • "Serrano-Alberto v. Attorney General, 859 F.3d 208". Third Circuit. Harvard Law School. June 12, 2017. p. 213. In other words, petitioners must receive 'a full and fair hearing that allows them a reasonable opportunity to present evidence on their behalf, and a decision on the merits of their claim by a 'neutral and impartial arbiter.' (citations omitted)
  5. ↑ "Romanishyn v. Attorney General, 455 F.3d 175". Third Circuit. Harvard Law School. July 20, 2006. p. 185. That the INA addresses termination of refugee status in only one provision—8 U.S.C. § 1157(c)(4)—might suggest, as Mr. Romanishyn argues, that refugee status persists indefinitely unless it is terminated pursuant to that provision. (emphasis added)
    • "Matter of N-V-G-, 28 I&N Dec. 380". Board of Immigration Appeals. U.S. Dept. of Justice. September 17, 2021. A person who enters the United States as a refugee and later adjusts in the United States to lawful permanent resident status is not precluded from establishing eligibility for a waiver of inadmissibility under section 212(h) of the [INA], 8 U.S.C. § 1182(h) (2018), based on a conviction for an aggravated felony, because he or she has not 'previously been admitted to the United States as an alien lawfully admitted for permanent residence' under that provision.
    • "Matter of Michel, 21 I&N Dec. 1101" (PDF). Board of Immigration Appeals. U.S. Dept. of Justice. January 30, 1998. An alien who has not previously been admitted to the United States as an alien lawfully admitted for permanent residence is statutorily eligible for a waiver of inadmissibility under section 212(h) of the [INA] (to be codified at 8 U.S.C. § 1182(h)), despite his conviction for an aggravated felony.
    • "Matter of H-N-, 22 I&N Dec. 1039" (PDF). Board of Immigration Appeals. U.S. Dept. of Justice. October 13, 1999. p. 1040. Pursuant to section 209 of the Act, an alien admitted into the United States as a refugee under section 207 of the Act, 8 U.S.C. § 1157 (1994 & Supp. II 1996), may have his or her status adjusted to that of a lawful permanent resident. In making such a determination, it is clear from the statute that the Attorney General has the power to grant a waiver of inadmissibility to an alien who may be inadmissible. (emphases added)
  6. ↑ 6.0 6.1 "Vartelas v. Holder, 566 U.S. 257 (2012)". U.S. Supreme Court. Harvard Law School. March 28, 2012. p. 262. Congress made 'admission' the key word, and defined admission to mean 'the lawful entry of the alien into the United States after inspection and authorization by an immigration officer.'
    • "Posos-Sanchez v. Garland, 3 F.4th 1176". Ninth Circuit. Casetext.com. July 7, 2021. p. 1182-83. The INA generally defines the words 'admission' and 'admitted' as 'the lawful entry of the alien into the United States after inspection and authorization by an immigration officer.'
    • "Matter of D-K-, 25 I&N Dec. 761" (PDF). Board of Immigration Appeals. U.S. Dept. of Justice. April 12, 2012. p. 766. With regard to refugees, the language of both the Act and the regulations states that they are 'admitted' to the United States.
  7. ↑ 8 U.S.C. § 1229a(c)(3)(A) (emphasis added)
    • 8 C.F.R. 1240.8(a) ("A respondent charged with deportability shall be found to be removable if the Service proves by clear and convincing evidence that the respondent is deportable as charged.")
    • 8 C.F.R. 1240.46(a) ("A determination of deportability shall not be valid unless it is found by clear, unequivocal, and convincing evidence that the facts alleged as grounds for deportation are true.")
  8. ↑ "Subtitle A—Revision of Procedures for Removal of Aliens: Sec. 304(a)(3)... Removal Proceedings" (PDF). Illegal Immigration Reform and Immigrant Responsibility Act of 1996. U.S. Congress. p. 593.
  9. ↑ See, e.g.,
    • "Rumierz v. Gonzales, 456 F.3d 31". First Circuit. Harvard Law School. August 3, 2006. p. 36. 8 U.S.C. § 1229a provides that the burden of proof is on the Department of Homeland Security (DHS) of establishing by clear and convincing evidence that, in the case of an alien who has been lawfully admitted to the United States, the alien is deportable.
    • "Francis v. Gonzales, 442 F.3d 131". Second Circuit. Harvard Law School. March 27, 2006. p. 138. In this case, however, because Francis is a permanent resident, the government bears the burden of proof, which it must meet by adducing 'clear, unequivocal, and convincing evidence that the facts alleged as grounds for deportation are true.'
    • "United States v. Thompson-Riviere, 561 F.3d 345". Fourth Circuit. Harvard Law School. March 26, 2009. p. 349. To convict him of this offense, the government bore the burden of proving beyond a reasonable doubt that (inter alia) he is an 'alien,'
    • "Ward v. Holder, 733 F.3d 601". Sixth Circuit. Harvard Law School. August 15, 2013. p. 605. In addition to the Ninth Circuit and our Circuit, the First, and the Fifth Circuits have faced the same fact pattern and have held that the government must prove inadmissibility by clear, unequivocal, and convincing evidence.
    • "Mondaca-Vega v. Lynch, 808 F.3d 413". Ninth Circuit. Harvard Law School. December 15, 2015. p. 417. We ... hold that 'clear, unequivocal, and convincing' is the familiar intermediate standard used in civil cases when particularly important individual interests are at stake.
  10. ↑ See, e.g.,
    • "Berenyi v. District Director, INS, 385 U.S. 630 (1967)". U.S. Supreme Court. Harvard Law School. January 23, 1967. p. 636. When the Government seeks to strip a person of citizenship already acquired, or deport a resident alien and send him from our shores, it carries the heavy burden of proving its case by 'clear, unequivocal, and convincing evidence.' (footnotes omitted)
    • "Woodby v. INS, 385 U.S. 276 (1966)". U.S. Supreme Court. Harvard Law School. December 12, 1966. p. 286. We hold that no deportation order may be entered unless it is found by clear, unequivocal, and convincing evidence that the facts alleged as grounds for deportation are true.
    • "Chaunt v. United States, 364 U.S. 350 (1960)". U.S. Supreme Court. Harvard Law School. November 14, 1960. pp. 353–56.
    • "Kwong Hai Chew v. Colding, 344 U.S. 590 (1953)". U.S. Supreme Court. Harvard Law School. February 9, 1953. p. 596-97. It is well established that if an alien is a lawful permanent resident of the United States and remains physically present there, he is a person within the protection of the Fifth Amendment. He may not be deprived of his life, liberty or property without due process of law. (emphasis added)
    • "Bridges v. Wixon, 326 U.S. 135 (1945)". U.S. Supreme Court. Harvard Law School. June 18, 1945. p. 149. [D]etention under an invalid order of deportation is established where an alien is ordered deported for reasons not specified by Congress.
      • "Sewak v. INS, 900 F.2d 667". Third Circuit. Harvard Law School. April 6, 1990. p. 670 n.7. The Supreme Court has held that the burden of proof is upon the INS to show the facts supporting deportability by clear, unequivocal and convincing evidence.
        • "Matter of Pichardo, 21 I&N Dec. 330" (PDF). Board of Immigration Appeals. U.S. Dept. of Justice. April 23, 1996. p. 333. In fact, this conviction may support a finding of deportability under section 241(a)(2)(C) of the Act, but only if the record contains clear, unequivocal, and convincing proof that possession of a firearm was an integral element of the offense that the respondent was convicted of committing.... In other words, the evidence of record must establish that the respondent was, in fact, convicted of criminally possessing a firearm within the meaning of section 241(a)(2)(C) of the Act.
  11. ↑ "Medina-Lara v. Holder, 771 F.3d 1106". Ninth Circuit. Harvard Law School. October 10, 2014. p. 1119. The government has failed to carry its burden to show by clear and convincing evidence that Medina has been convicted of an aggravated felony or a controlled substance offense. Similarly, Supreme Court case law issued subsequent to the agency action reviewed here has foreclosed on the government's contention that Medina had been convicted of a firearm offense.
  12. ↑ "United States v. Aguilera-Rios, 769 F.3d 626". Ninth Circuit. Harvard Law School. June 17, 2014. p. 629.
  13. ↑ "United States v. Ochoa, 861 F.3d 1010". Ninth Circuit. Harvard Law School. July 3, 2017. p. 1013.
  14. ↑ "Ahmadi v. Attorney General, 842 F. App'x 777". Third Circuit. Casetext.com. April 7, 2021. p. 778.
  15. ↑ See, e.g.,
    • "Singh v. USCIS, 878 F.3d 441". Second Circuit. Harvard Law School. December 22, 2017. p. 443. The government conceded that Singh's removal was improper given the Ninth Circuit's stay.
    • "Orabi v. Attorney General, 738 F.3d 535". Third Circuit. Harvard Law School. January 2, 2014. p. 543. The judgment of the BIA will therefore be reversed, with instructions that the Government, pursuant to its August 12, 2013 letter, be directed to return Orabi to the United States in accordance with the ICE regulations cited.
    • "Addo v. Barr, 982 F.3d 1263". Tenth Circuit. Casetext.com. December 14, 2020. p. 1268 n.4. We note that Petitioner's removal has not mooted his petition for review because, 'in the event this court grants his petition, [Immigration and Customs Enforcement] would facilitate his return to the United States pursuant to its Facilitation of Return Policy.'
      • "Avalos-Palma v. United States, Civil Action No. 13-5481(FLW)". U.S. District Court for the District of New Jersey. Casetext.com. July 16, 2014. p. 3. On June 2, 2012, approximately 42 months after the improper deportation, ICE agents effectuated Avalos-Palma's return to the United States.
        • "Matter of Diaz-Garcia, 25 I&N Dec. 794" (PDF). Board of Immigration Appeals. U.S. Dept. of Justice. May 14, 2012. p. 795. In its brief on appeal, the DHS admits that the respondent has been removed from the United States to Mexico 'in error.'
  16. ↑ 8 C.F.R. 1003.2 ("(a) General. The Board may at any time reopen or reconsider a case in which it has rendered a decision on its own motion solely in order to correct a ministerial mistake or typographical error in that decision or to reissue the decision to correct a defect in service.... The time and numerical limitations set forth in paragraph (c)(2) of this section shall not apply to a motion to reopen proceedings:...
    (v) For which a three-member panel of the Board agrees that reopening is warranted when the following circumstances are present, provided that a respondent may file only one motion to reopen pursuant to this paragraph (c)(3): (A) A material change in fact or law underlying a removability ground or grounds specified in section 212 or 237 of the Act that occurred after the entry of an administratively final order that vitiates all grounds of removability applicable to the alien; and (B) The movant exercised diligence in pursuing the motion to reopen;
    (vi) Filed based on specific allegations, supported by evidence, that the respondent is a United States citizen or national....") (emphases added)
  17. ↑ "Hamer v. Neighborhood Hous. Servs. of Chi., 138 S. Ct. 13 (2017)". U.S. Supreme Court. Harvard Law School. November 8, 2017. p. 20 n.9. In determining whether Congress intended [section 1252(b)(1)] to be jurisdictional, we consider context, including this Court's interpretations of similar provisions in many years past, as probative of Congress' intent... we have made plain that most statutory time bars are nonjurisdictional. (brackets, citations and quotation marks omitted)
  18. ↑
    • "Balbuena v. Sullivan, 980 F.3d 619". Ninth Circuit. Casetext.com. August 17, 2020. p. 638. Under Rule 60(b), a party may seek relief from a final judgment under limited circumstances, including fraud, mistake, newly discovered evidence, or any other reason that justifies relief.
    • "Baxter v. Bressman, 874 F.3d 142". Third Circuit. Harvard Law School. October 18, 2017. p. 149. Rule 60 has no applicability where, as here, a party requests relief from a final judgment in response to an opponent's alleged fraud on the court.
    • "Luna v. Bell, 887 F.3d 290". Sixth Circuit. Harvard Law School. April 5, 2018. p. 294. Under Rule 60(b)(2), a party may request relief because of 'newly discovered evidence.' The movant needs to show by clear and convincing evidence (1) that it exercised due diligence to obtain the evidence and (2) that the evidence is material, i.e., would have clearly resulted in a different outcome.
    • "United States v. Handy, No. 18-3086". Tenth Circuit. Casetext.com. July 18, 2018. p. 5. [W]hen Rule 60(b)(4) is applicable, 'relief is not a discretionary matter; it is mandatory.' And the rule 'is not subject to any time limitation.' (citation omitted)
    • "United States v. Sierra, No. 17-12418". Eleventh Circuit. Casetext.com. January 29, 2018. p. 6-7.
    • Hague, David R. (March 2016). "Fraud on the Court and Abusive Discovery, 16 Nev. L.J. 707 (2016)". Nevada Law Journal. William S. Boyd School of Law. 16 (2): 725.
  19. ↑ "Rosales-Mireles v. United States, 138 S. Ct. 1897 (2018)". U.S. Supreme Court. Harvard Law School. June 18, 2018. p. 1906. Although Rule 52(b) is permissive, not mandatory, it is well established that courts 'should' correct a forfeited plain error that affects substantial rights if the error seriously affects the fairness, integrity or public reputation of judicial proceedings. (citations and quotation marks omitted)
    • "Howell v. Superintendent Albion SCI, 978 F.3d 54". Third Circuit. Casetext.com. October 21, 2020. p. 59. The overarching question in this case is whether Howell has made a sufficient showing of actual innocence to gain relief under Rule 60(b)(6) – relief that would serve as a gateway past the procedural default of his having untimely filed his habeas petition, thus allowing the petition to be considered.
    • "Vosgien v. Persson, 742 F.3d 1131". Ninth Circuit. Harvard Law School. February 13, 2014. p. 1134. A federal habeas petitioner can overcome a procedural default, including a failure to comply with the statute of limitations, by demonstrating actual innocence of the crime underlying his conviction.
    • "Alaimalo v. United States, 645 F.3d 1042". Ninth Circuit. Harvard Law School. February 28, 2011. p. 1047. A petitioner is actually innocent when he was convicted for conduct not prohibited by law.
  20. ↑ "Rubalcaba v. Garland, 998 F.3d 1031". Ninth Circuit. Casetext.com. June 2, 2021. p. 1034. [W]e conclude that the departure bar does not apply in the context of sua sponte reopening.
  21. ↑ 8 U.S.C. § 1252(d) ("A court may review a final order of removal only if—(1) the alien has exhausted all administrative remedies available to the alien as of right, and (2) another court has not decided the validity of the order, unless the reviewing court finds that the petition presents grounds that could not have been presented in the prior judicial proceeding or that the remedy provided by the prior proceeding was inadequate or ineffective to test the validity of the order.") (emphasis added)
  22. ↑ "Bibiano v. Lynch, 834 F.3d 966". Ninth Circuit. Harvard Law School. August 19, 2016. p. 969. We join the noncontroversial holding—shared by the nine other circuits which have addressed this issue in detail—that § 1252(b)(2)'s venue provision is not jurisdictional.
  23. ↑ 8 U.S.C. § 1252(a)(1) ("Judicial review ... is governed only by chapter 158 of title 28, except as provided in subsection (b)....")
    • 28 U.S.C. § 2344 ("The petition shall contain a concise statement of—(1) the nature of the proceedings as to which review is sought; (2) the facts on which venue is based; (3) the grounds on which relief is sought; and (4) the relief prayed.") (emphasis added)
      • "Mata v. Lynch, 135 S. Ct. 2150 (2015)". U.S. Supreme Court. Harvard Law School. June 15, 2015. p. 2154. The INA, in combination with a statute cross-referenced there, gives the courts of appeals jurisdiction to review 'final order[s] of removal.'
      • "Guerrero-Lasprilla v. Barr, 140 S. Ct. 1062 (2020)". U.S. Supreme Court. Harvard Law School. March 23, 2020. p. 1072. The statutory history and precedent, as well as the legislative history, thus support the conclusion that the statutory term 'questions of law' includes the application of a legal standard to established facts.
  24. ↑ See, e.g.,
  25. ↑ "Correctional Services Corp. v. Malesko, 534 U.S. 61 (2001)". U.S. Supreme Court. Harvard Law School. November 27, 2001. p. 74. [I]njunctive relief has long been recognized as the proper means for preventing entities from acting unconstitutionally.

External links[edit]


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