Expedited removal
Contrary to popular belief, not everyone whom the Government seeks to deport is entitled to a hearing before an Immigration Judge. Under the Immigration & Nationality Act, individuals who are neither permanent nor conditional residents and who have been convicted of “aggravated felonies” are not eligible for a hearing before the Immigration Judge and are instead subject to “expedited removal.” These proceedings are initiated by an agent of the Immigration Service, who issues a “Notice of Intent to Issue a Final Administrative Deportation Order” or “Notice of Intent” on Form I-851. The immigrant then has ten days to respond to the Notice of Intent in writing. In his reply, the immigrant may only contest the following: 1. the finality of the criminal conviction, for example, it may be on appeal 2. that he or she is a conditional or permanent resident and finally that the 3. conviction is not for an aggravated felony. The immigrant may not use his reply to raise such issues as the length of time he has been in the United States or the hardship his removal would cause his lawful resident or U.S. citizen relatives. These issues may only be raised when the immigrant is filing a waiver of deportation. In expedited removal cases the immigrants are not lawful residents of the United States and if they have been convicted of aggravated felons they are not entitled to any relief in the form of waivers that would allow them to make their case to remain in the U.S...
The Notice of Intent must state the factual allegations and the legal basis for deportability. It must also advise the immigrant of the right to counsel, although the government has no responsibility to provide or pay for such counsel. The Notice of Intent must also state that the immigrant has the right to inspect the government’s evidence, if not already provided and that the immigrant may also request withholding of removal. (In order to be granted withholding of removal, the immigrant must prove that his life or freedom would be threatened on account of race, religion, nationality, and membership in a particular social group or political opinion.)
Following the response period, the Immigration Service issues a final decision that must be based on clear, convincing and unequivocal evidence. There is no appeal process. As stated above, the only way to contest the Notice of Intent is to dispute the allegations of lawful permanent residence or the final conviction of an aggravated felon. In most cases, it is beneficial to hire counsel to determine if any of the above may be contested. Additionally, it may be appropriate to request withholding of removal or in certain cases the immigrant may be eligible for adjustment of status. Although the regulations do not provide the immigrant with the right to a hearing before the immigration judge to apply for adjustment of status, an attorney may be able to successfully argue for a termination of expedited removal proceedings and the Immigration Service may use its discretion to do so and place the case before the Immigration Judge.