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Immigration: The Removal Hearing

Posted by attorney C. Abbott

The Removal Hearing is a formal procedure that enables a non-US Citizen to be expulsed from the United States. US Immigration law states that for the alien to be subject to removal he or she must be within one or more of the statutory classes of deportable aliens.INA § 237 (a); 8 USCA § 1227(a). Once an alien is judged to be deportable, she or he will be removed from the United States unless relief was available.

An alien who has been removed from the United States faces the inability to return to the United State for a long period of time including the 5 or 10 year bar or even indefinitely. This bar can result in great hardship, especially if the alien has a family with small or sick children in America.

There are two main types of removal hearings. The first hearing, often labeled a deportation hearing, is for those aliens already within the United States. The second hearing, referred to as an inadmissibility hearing is a hearing for aliens who had wished to enter and are stopped at the border. The test to determine if a person had entered the United States has three components. First it is necessary to determine if the alien was physically inside of a territory of the US. Second, if the alien was physically present, then it was necessary to prove that the alien had inspected at a port of entry and granted admission. Thirdly, it was necessary that the alien be free from restraint. If the non-US Citizen a person met these three requirements, she or he would be subject to a deportation hearing. As a fallback, all other aliens would be exposed to a hearing to determine admissibility.

In 1996, Congress passed the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA) to restrict the rights of illegal aliens.110 Stat. 3009 (1996) § 308 (f). The IIRIRA simplified the test for determining if an alien entered the United States. IIRIRA changed the INA definition of admission to “ the lawful entry of the alien into the United States after inspection and authorization by an immigration officer." INA§ 101 (a) (13) (A); 8 USCA § 1101 (a) (13) (A) (1994)All aliens who had entered without inspection after IIRIRA would be classified as being inadmissible.

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