Department of Justice News Release on Expansion of the Institutional Hearing Program

On March 30, 2017, Attorney General Jeff Sessions announced that the Department of Justice (DOJ) would move to expand and modernize the Institutional Hearing Program (IHP) [link].

The DOJ explains in its news release that the IHP identifies removable aliens incarcerated in federal correctional facilities and provides for in-person and video teleconference (VTC) removal proceedings for such aliens. Under the IHP, if an alien is found to be removable after hearings in a federal correctional facility, he or she will be removed at the completion of his or her sentence rather than transferred to a United States Immigration and Customs Enforcement (ICE) facility for detention and immigration proceedings. The DOJ explains that the IHP “saves time and resources and speeds hearings.”

The IHP is administered by the Executive Office for Immigration Review (EOIR), the Bureau of Prisons (BOP), and the ICE.

The news release explains that the modernization of the IHP will include the following (paraphrased):

1. The ICE, BOP, and EOIR will expand the number of active facilities with the IHP to a total of 14 BOP and 6 BOP contract facilities;
2. The EOIR and BOP will increase each included facility’s VTC capabilities and update existing infrastructure to aid in the ability to conduct removal proceedings; and
3. The EOIR and ICE will finalize a new uniform intake policy. An agreement between the EOIR and ICE is expected to be finalized by April 6, 2017.

The DOJ news release includes the following statement from Attorney General Sessions on the expansion:

We owe it to the American people to ensure that illegal aliens who have been convicted of crimes and are serving time in our federal prisons are expeditiously removed from our country as the law requires. This expansion and modernization of the Institutional Hearing Program gives us the tools to continue making Americans safe again in their communities.

Background Information

Section 238(a) of the Immigration and Nationality Act (INA) allows for removal proceedings to be conducted in certain circumstances for aliens while they are incarcerated in federal, state, and local correctional facilities. In his January 25, 2017 Executive Order 13768 titled “Enhancing Public Safety in the Interior of the United States” [83 FR 8799], President Donald Trump called for new measures to buttress interior enforcement against aliens in the United States without legal authorization. In a Department of Homeland Security (DHS) Memorandum regarding the implementation of Executive Order 13768, Secretary of Homeland Security John Kelly instructed the ICE to work with the EOIR to expand the use of the IHP. Thus, the new guidance from the DOJ on expanding and modernizing the IHP can be seen as a step in fully implementing President Trump’s Executive Order 13768.

Please see the relevant section of our article on the Trump Administration’s enforcement priorities to learn more about the initiative as discussed in the DHS Memorandum [see section].

Conclusion

It is important to note that Attorney General Sessions’ announcement only affects certain federal prisons and contract prisons. The same immigration laws apply to an alien whose hearings occur under the IHP as an alien whose hearings occur when he or she is not incarcerated. Any alien who has been convicted of a criminal offense should consult with an experienced immigration attorney for guidance on how to proceed and ensure that his or her rights and interests are protected in potential immigration proceedings.