Introduction to Administrative Removal for Persons Convicted of Aggravated Felonies

Section 238(b) of the Immigration and Nationality Act (INA) contains an administrative removal procedure for non-lawful permanent resident aliens (LPRs) who are deportable due to a conviction for an aggravated felony. The removal procedure in 238(b) is a form of summary removal and as such, unless the alien either rebuts the charges or establishes eligibility for withholding of removal, will not be entitled to a hearing before a judge. This article will explain the administrative removal process in section 238(b) and describe the ways in which an alien who is charged under 238(b) may seek to avoid administrative removal.

Who is Subject to Administrative Removal for an Aggravated Felony?

In order to be subject to administrative removal pursuant to section 238(b), an alien must:

Have been convicted of a crime that renders him or her deportable under section 237(a)(2)(A)(iii) of the INA (relating to “aggravated felonies [see article]” in immigration law);
Not be admitted into the United States as an LPR at the time removal proceedings commence [however, aliens admitted only as conditional permanent residents [see article] are subject to section 238(b)].

With respect to “aggravated felonies,” it is important to remember that the statute refers to an “aggravated felony” in immigration law and not an “aggravated felony” pursuant to state law. Thus, it is possible that a conviction that may not be for an “aggravated felony” under the laws of the state where it was adjudicated may be an “aggravated felony” in the immigration context. The list of aggravated felonies in immigration law is found in section 101(a)(43) of the INA. Please follow this link to read our comprehensive article about aggravated felonies in the immigration context.

Only non-LPRs are subject to administrative removal for an aggravated felony. If an alien who is served with an I-851, Notice of Intent to Issue Final Administrative Removal Order, is in fact an LPR or has a claim to U.S. citizenship, he or she should bring this to the attention of the immigration officer immediately. However, conditional permanent residents are explicitly subject to this administrative removal procedure by way of section 238(b)(2)(B). Multiple courts have found that this administrative removal procedure is applicable to parolees and aliens who enter without inspection despite that the statute appears to suggest that it only applies to aggravated felony convictions after admission.1

Administrative Removal Procedure

Pursuant to section 238(b)(3) of the INA, an alien who is issued a Form I-851 may not be removed until 14 calendar days have elapsed from the date that the order was issued. Under section 238(b)(4), the alien must be provided with reasonable notice of the charges of removability and with an opportunity, at no expense to the government, to consult with counsel. Furthermore, the alien must be provided with a reasonable opportunity to inspect all of the evidence and endeavor to rebut the charges. In the event that the alien provides compelling evidence to rebut the charges, the officer handling the case may issue a request for more evidence, place the alien in regular removal proceedings, or rescind the charges entirely [8 C.F.R. 238.1(d)(2)(ii)].

Pursuant to section 238(c) of the INA, conviction of an aggravated felony carries with it a presumption of deportability.

Process for Contesting Administrative Removal for Aggravated Felony Convictions

There are multiple grounds under which administrative removal for an aggravated felony conviction may be contested. If the alien requests to see the findings in order to respond, he or she will have 10 calendar days from the service of the Form I-851 to respond if the I-851 is delivered in person, and 13 calendar days if the I-851 is delivered by mail. Because of this short window, it is imperative that an alien seeking to avoid administrative removal act expeditiously.

If the alien is an LPR, he or she should provide evidence to this effect immediately as LPRs are not subject to administrative removal. If the alien has a claim to U.S. citizenship [see article], he or she should pursue this claim immediately. An alien may rebut on the ground that his or her conviction was not of a qualifying aggravated felony in immigration law. Whether this is a viable option depends on the specific conviction in question. In any scenario where the alien is rebutting aspects of the grounds for removal, he or she or his or her immigration counsel must identify which findings are being challenged and accompany the challenge with affidavits, documentary information, and/or other evidence supporting the challenge [8 C.F.R. 238.1(c)(2)].

Rather than contest the findings on the Form I-851, the alien may instead request withholding of removal on account of a fear of persecution or torture in his or her home country. If the alien requests withholding of removal, he or she will be granted an interview with an asylum officer upon issuance of a final order of removal for a reasonable fear determination [8 C.F.R. 238.1(f)(3)]. If a reasonable fear is established, withholding of removal may be granted. By treaty, the United States may not return an alien to a country where the alien faces a high likelihood of torture by a government official. However, it is important to note that a conviction for an aggravated felony may constitute a mandatory bar to asylum [see article].

Administrative Removal for Aggravated Felony Convictions Advice

Any person who intends to contest the findings on a Form I-851 should consult with an experienced immigration attorney immediately. Whether a compelling case against administrative removal exists will depend on the specific facts of the case (e.g., whether the alien is in fact an LPR, whether it may be demonstrated that the conviction in question is not for an aggravated felony, etc.). However, an experienced immigration attorney will be able to assess the situation and explore every possible avenue for relief from administrative removal that may exist.

In the case that an alien does not intend to challenge the findings on the Form I-851, he or she may state this in response to the charges and request to depart from the United States before the full 14-day period (from the service of the Form I-851 until the alien may be removed) elapses.

  1. I. Kurzban, Kurzban’s Immigration Law Sourcebook: A Comprehensive Outline and Reference Tool (AILA 14th Ed. 2014) 561, citing Bamba v. Riley, 366 F.3d 195 (3d Cir. 2004); U.S. v. Hernandez-Vermudez, 356 F.3d 1011 (9th Cir. 2004); Bazan-Reyes v. INS, 256 F.3d 600, 604-05 (7th Cir. 2001).

Resources and Materials:

Kurzban, Ira J. Kurzban’s Immigration Law Sourcebook: A Comprehensive Outline and Reference Tool. 14th ed. Washington D.C.: ALIA Publications, 2014. 561, 1101-1103, Print. Treatises & Primers.