Summary Removal on Security and Related Grounds

 

Summary Removal on Security and Related Grounds

summary removalPursuant to INA § 235(c), if an immigration officer or immigration judge suspects that an arriving alien is inadmissible under certain security and related grounds found in INA § 212(a)(3)(A), (B), or (C), the officer or immigration judge shall order that the alien be removed and submit the order for review by the Attorney General. Of note, a returning LPR is not subject to this provision even if he or she is found to be inadmissible under one of the applicable security and related grounds.1

Applicable security and related grounds are for aliens who are known to be have engaged in or suspected to be entering to engage in:

  • Espionage, sabotage, or the intent to export sensitive information from the United States;
  • Activities to overthrow or control the U.S. Government;
  • Terrorist activities (there are general discretionary exceptions for terrorist-related inadmissibility grounds where there are reasonable grounds to believe the alien has renounced the activity causing the inadmissibility);
  • Inciting terrorist activities;
  • Membership in a terrorist organization (with an exception where the alien demonstrates by clear and convincing evidence that he or she did not know, and could not have reasonably known, that the organization was a terrorist organization);
  • Endorsing or espousing terrorist activities;
  • Receiving military-type training from a terrorist organization;
  • Where it is determined the alien's activities would cause serious adverse foreign policy consequences for the United States (except this cannot be the sole ground if the alien is a foreign government official and the statements or beliefs would be lawful within the United States);

If the Attorney General determines that the alien is inadmissible on one of the listed grounds on the basis of confidential information that would be prejudicial to the public interest, safety, or security, he or she may order the alien will be subject to summary removal without further inquiry or hearing [INA § 235(c)(2)(B)]. If the Attorney General does not order the alien's removal based upon non-disclosable confidential information, he or she will specify the next steps in the case. In either scenario, the alien or the alien's representative may submit additional written information for consideration by the Attorney General [INA § 235(c)(2)(C)].

Convention Against Torture Protection Against Summary Removal on Security and Related Grounds

Persons subject to final orders of removal under INA § 235(c) are permitted to request protection under Article 3 of the Convention Against Torture (prohibits the United States from returning an alien to a country where there is a high likelihood that the alien would be tortured) [8 C.F.R. § 208.18]. Pursuant to such a request, USCIS will review the case to ensure that the removal order would not violate the obligations of the United States under the Convention Against Torture [Id.].

Advice: Summary Removal on Security and Related Grounds

If an alien is subject to summary removal under INA § 235(c) and he or she is given the opportunity to respond to the charges in detail (where the Attorney General does not determine that the alien should be summarily removed without further hearing due to confidential information), it is imperative for the alien to retain an experienced immigration attorney in order to attempt to rebut the charges. In most cases, the alien will only be permitted to submit a written statement and other information for consideration. Depending on the ground of inadmissibility, the alien may seek to submit information demonstrating that he or she qualifies for an exception (e.g., has engaged in terrorist activities, but has renounced support for the terrorist group). The relevant evidence to rebut charges of inadmissibility under the listed provisions will be fact specific, and vary greatly from case to case. However, given the security risks that INA § 235(c) is designed to protect against; the alien will likely have a very high bar to clear. An experienced immigration attorney may, depending on the facts of the case, help be able to help fight removal pursuant to the Convention Against Torture if there are convincing grounds to believe that the alien would be tortured in his or her country of return.

  1. I. Kurzban, Kurzban's Immigration Law Sourcebook: A Comprehensive Outline and Reference Tool (AILA 14th Ed. 2014) 184, citing Rafeedie v. INS, 880 F.2d 506 (D.C. Cir. 1989); Rafeedie v. INS, 795 F.Supp. 13 (D.D.C. 1992)