By Catherine Park
“Arriving” Noncitizens Under INA Section 235
The Immigration and Nationality Act (“INA” or “the statute”) designates as “arriving aliens” those noncitizens who seek to enter the United States at a port of entry (or who are interdicted in international or United States waters and brought to shore) who are inadmissible because of fraud or lack of documentation. INA § 235(b)(1)(A), 8 U.S.C. § 1225(b)(1)(A). The statute also gives the Department of Homeland Security (DHS) the sole and unreviewable authority to designate anyone else as “arriving” who has not been admitted or “paroled” into the United States (“parole” is a temporary admission for purposes of adjudicating an application for admission) and who has not affirmatively shown to the satisfaction of a Customs and Border Protection (CBP) officer that the noncitizen has been physically present in the United States for the two years immediately preceding the inspection. INA §§ 235(b)(1)(A)(iii)(I)-(II), 8 U.S.C. §§ 1225(b)(1)(A)(iii)(I)-(II).
The only exception to DHS’ designation authority is a native or citizen of a Western Hemisphere nation with which the United States does not have full diplomatic relations who arrives at a port of entry by aircraft. INA §§ 235(b)(1)(A)(iii)(I)-(II), (F), 8 U.S.C. §§ 1225(b)(1)(A)(iii)(I)-(II), (F). Such individuals are not subject to expedited removal. See Matter of M-S-, 27 I. & N. Dec. 509, 511 n.2 (B.I.A. 2019) (“'[T]he statutory provision categorically barring the use of expedited removal … no longer applies to Cuban nationals, as the United States and Cuba have reestablished full diplomatic relations.’ Eliminating Exception to Expedited Removal Authority for Cuban Nationals Encountered in the United States or Arriving by Sea, 82 Fed. Reg. 4902, 4904 (Jan. 17, 2017).”).
The INA requires an “arriving” noncitizen to be removed without further hearing or review in expedited proceedings unless the noncitizen indicates an intent to seek asylum or expresses a credible fear of persecution if returned to his home country. INA § 235(b)(1)(A)(i), 8 U.S.C. § 1225(b)(1)(A)(i).
Arriving noncitizens who are placed in expedited removal proceedings “shall be detained.” INA § 235(b)(1)(B)(ii), 8 U.S.C. § 1225(b)(1)(B)(ii), 8 C.F.R. §§ 235.3(b)(1)(i), (b)(2)(iii). If an arriving noncitizen claims to be a lawful permanent resident (“LPR” or “green card holder”), refugee, asylee, or U.S. citizen, DHS must try to verify the claim. 8 C.F.R. § 235.3(b)(5)(i). If the claim is not verified, but the noncitizen has made an oath regarding the asserted status under penalty of perjury, an expedited removal order still will be issued but must be reviewed by an Immigration Judge before it becomes final. INA § 235(b)(1)(C), 8 U.S.C. § 1225(b)(1)(C), 8 C.F.R. § 235.3(b)(5)(iv). If the Immigration Judge determines that the noncitizen never was admitted under, or never held, such status, the expedited removal order will be affirmed, and the noncitizen removed. 8 C.F.R. § 235.3(b)(5)(iv). There is no administrative appeal from the decision. Id.
Nor, by the terms of the INA, is judicial review available for an expedited removal order relating to arriving noncitizens. INA § 242(a)(2)(A), 8 U.S.C. § 1252(a)(2)(A). The only exception is a habeas corpus proceeding—to challenge detention—but the INA limits habeas review in this context to the following issues: whether the petitioner is an alien, whether he has been ordered removed, and whether he can prove by a preponderance of the evidence his status as an LPR, refugee, or asylee, and that he is entitled to further inquiry under the regulations. INA § 242(e)(2), 8 U.S.C. § 1252(e)(2).
Is there a constitutional problem here?
Not according to the U.S. Supreme Court, which reversed a decision of the U.S. Court of Appeals for the Ninth Circuit holding that the expedited removal provisions of INA § 242 infringed on an arriving noncitizen’s rights under the Suspension Clause of the U.S. Constitution, art. I, § 9, cl. 2 (“The privilege of the writ of habeas corpus shall not be suspended, unless when in cases of rebellion or invasion the public safety may require it.”):
Respondent’s Suspension Clause argument fails because it would extend the writ of habeas corpus far beyond its scope “when the Constitution was drafted and ratified.” Boumediene v. Bush, 553 U.S. 723, 746 (2008). Indeed, respondent’s use of the writ would have been unrecognizable at that time. Habeas has traditionally been a means to secure release from unlawful detention, but respondent invokes the writ to achieve an entirely different end, namely, to obtain additional administrative review of his asylum claim and ultimately to obtain authorization to stay in this country.
Respondent’s due process argument fares no better. While aliens who have established connections in this country have due process rights in deportation proceedings, the Court long ago held that Congress is entitled to set the conditions for an alien’s lawful entry into this country and that, as a result, an alien at the threshold of initial entry cannot claim any greater rights under the Due Process Clause. See Nishimura Ekiu v. United States, 142 U.S. 651, 660 (1892). Respondent attempted to enter the country illegally and was apprehended just 25 yards from the border. He therefore has no entitlement to procedural rights other than those afforded by statute.
Dep’t of Homeland Sec. v. Thuraissigiam, 140 S. Ct. 1959, 1964-64 (2020).
Arriving noncitizens who claim to have been lawfully admitted or paroled will be given a reasonable opportunity to convince the examining officer of his status and must show that it has not been terminated and that he is not deportable. 8 C.F.R. § 235.3(b)(5). Expedited removal orders entered against noncitizens who have not been admitted or paroled must be reviewed by a supervisor, along with any evidence and statements, including a check of all data systems, and additional investigation conducted as the supervisor deems appropriate before the order becomes final. 8 C.F.R. § 235.3(b)(8). The noncitizen has the burden of persuading the CBP of the claim of lawful admission or parole. Id.
Challenges to the validity of the expedited removal process may be filed in the U.S. District Court for the District of Columbia but are limited to challenging the constitutionality of the INA section or implementing regulation, or whether the regulation, or written policy directive, written policy guideline, or written procedure issued to implement the section is inconsistent with the INA or otherwise in violation of law. The action must be filed no later than 60 days after the date of first implementation of the challenged section, regulation, directive, guideline, or procedure. INA § 242(e)(3), 8 U.S.C. § 1252(e)(3).
Disputing the “Arriving” Designation
A noncitizen cannot challenge his designation as “arriving” through the administrative process. See 8 C.F.R. § 1003.19(h)(2)(ii). However, federal district courts have permitted challenges by noncitizens to their “arriving” status:
[A] detainee who is designated an arriving alien cannot have an immigration judge determine whether the detainee is properly included in that category. “[A]n immigration judge may not redetermine conditions of custody imposed by the Service with respect to [a]rriving aliens in removal proceedings….” 8 C.F.R. § 1003.19(h)(2)(i)(B). Although an immigration judge can determine whether a person is properly included within several categories, that of an arriving alien is not among them. Id. § 1003.19(h)(2)(ii). See Garza-Garcia v. Moore, 539 F. Supp. 2d 899, 902, 906-07 (S.D. Tex. 2007); In re Saint Fleury, 2008 WL 2783096 (B.I.A. June 12, 2008). Because Petitioner cannot raise his claim before the immigration judge, it follows that he cannot exhaust his claim in that fashion. Consequently, it is recommended that this Court decline to dismiss Petitioner’s claim as unexhausted.
For the reasons stated above, I recommend that this Court has jurisdiction to consider Velazquez’s § 2241 [habeas corpus] Petition and that [the Government’s] motion be denied insofar as it seeks dismissal on this basis. (footnote omitted)
Velazquez v. Moore, No. SA-08-CA-635-XR (NSN), 2008 U.S. Dist. LEXIS 91531, at *6-7 (W.D. Tex. Nov. 10, 2008).
Velazquez was an LPR admitted in 1990, who was convicted of an aggravated felony in Nebraska in 1995. In 2008, he was on a passenger bus from Mexico seeking entry at the Juarez Lincoln Bridge in Laredo, Texas. He could prove his LPR status but was charged as “arriving” because the aggravated felony (a non-family weapons felony) subjected him to the “arriving” designation under section 301 of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (“IIRIRA”). Since the conviction occurred in 1995, Velazquez argued that retroactive application of IIRIRA to his conviction was impermissible.
LPRs who violate the conditions of their status are at risk of being detained as “arriving” upon returning from abroad under IIRIRA § 301, codified at INA § 101(a)(13)(C), 8 U.S.C. § 1101(a)(13)(C):
An alien lawfully admitted for permanent residence in the United States shall not be regarded as seeking an admission into the United States for purposes of the immigration laws unless the alien [emphasis added]—
(i) has abandoned or relinquished that status,
(ii) has been absent from the United States for a continuous period in excess of 180 days,
(iii) has engaged in illegal activity after having departed the United States,
(iv) has departed from the United States while under legal process seeking removal of the alien from the United States, including removal proceedings under this Act and extradition proceedings,
(v) has committed an offense identified in section 212(a)(2) [“Inadmissible aliens”], unless since such offense the alien has been granted relief under section 212(h) [waivers for certain criminal conduct] or 240A(a) [“Cancellation of removal; adjustment of status”], or
(vi) is attempting to enter at a time or place other than as designated by immigration officers or has not been admitted to the United States after inspection and authorization by an immigration officer.
In Vartelas v. Holder, 566 U.S. 257 (2012) the U.S. Supreme Court held that IIRIRA would not be given retroactive effect for a 1994 conviction for attempt to counterfeit a security by an LPR who in 2003 traveled abroad for one week to visit his parents and was placed in removal proceedings upon his return. Nor is anti-retroactivity contingent upon the noncitizen’s detrimental reliance on pre-IIRIRA law, under Vartelas.
The Board of Immigration Appeals (BIA) has held that even a noncitizen who obtained LPR status unlawfully (e.g., through fraud or misrepresentation) is not properly designated as “arriving” upon returning from abroad; he must fall within one of the exceptions enumerated at INA § 101(a)(13)(C), 8 U.S.C. § 1101(a)(13)(C), to be considered “arriving.” Matter of Pena, 26 I. & N. Dec. 613 (B.I.A. 2015).
In Pena, the BIA remanded to permit DHS to charge the noncitizen as a deportable LPR (rather than an arriving noncitizen): “If necessary, the Immigration Judge may then determine whether the respondent lawfully obtained his permanent resident status and allow him to apply for any relief from removal for which he may be eligible [emphasis added].” Id. at 620.
DHS has the burden of proving by clear and convincing evidence that a returning LPR falls within one of the exceptions at INA § 101(a)(13)(C), 8 U.S.C. § 1101(a)(13)(C) and is therefore “arriving.” See, e.g, Matter of Rivens, 25 I. & N. Dec. 623, 625-26 (B.I.A. 2011). Rivens relies on longstanding case law holding that clear and convincing evidence is required before a returning LPR can be regarded as seeking admission, id. at 625-26, as well as the “absence of any evidence that Congress intended a different allocation or standard of proof to apply in removal cases arising under current section 101(a)(13)(C) ….” Id.
Caveat: The Government may parole a returning LPR into the United States (instead of detaining the LPR) for the limited purpose of proving at a later date (when clear and convincing evidence becomes available) that the LPR is “arriving” and therefore inadmissible. See, e.g., Matter of Valenzuela-Felix, 26 I. & N. Dec. 53 (B.I.A. 2012) (LPR indicted by grand jury for bulk cash smuggling was paroled for purposes of prosecution and a later removal proceeding where Government could carry burden of proving “arriving” noncitizen exception at INA § 101(a)(13)(C) by clear and convincing evidence); Romero v. Garland, 999 F.3d 656, 659 (9th Cir. 2021) (deferring to BIA’s reasoning in Valenzuela-Felix).
This type of parole, which occurs only in the context of inspection of “arriving” noncitizens, is discretionary with the Government and permitted only “when required to meet a medical emergency or is necessary for a legitimate law enforcement objective.” 8 C.F.R. § 235.3(b)(5)(i).
LPRs Designated As “Arriving” Are Not Subject to Expedited Removal
After enactment of IIRIRA in 1996, the regulations were amended to provide LPRs, even if designated as “arriving,” the full benefit of procedural protections under INA § 240 removal proceedings (instead of the expedited removal procedure). See 62 Fed. Reg. 10,312, 10,355 (Mar. 6, 1997). The post-1996 regulations provide that if an expedited removal order is entered against a person at a port of entry who claims to be an LPR, refugee, asylee, or U.S. citizen, and whose status cannot be verified but who swears to his status under penalty of perjury, an Immigration Judge must review the order, as follows:
If the immigration judge determines that the alien was once so admitted as a lawful permanent resident or as a refugee, or was granted asylum status, or is a U.S. citizen, and such status has not been terminated by final administrative action, the immigration judge will terminate proceedings and vacate the expedited removal order. The Service may initiate removal proceedings against such an alien, but not against a person determined to be a U.S. citizen, in proceedings under section 240 of the Act. During removal proceedings, the immigration judge may consider any waivers, exceptions, or requests for relief for which the alien is eligible [emphasis added].
8 C.F.R. § 235.3(b)(5)(iv).
DISCLAIMER: The opinions expressed herein are for informational purposes only and might not be applicable to your case or circumstances. If you need legal advice about a specific matter, consult an attorney.