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Chapter 7 - Other Proceedings Before Immigration Judges

7.2 - Deportation Proceedings and Exclusion Proceedings

(a) In General —

          (1) Replaced by removal proceedings — Beginning with proceedings commenced on April 1, 1997, deportation and exclusion proceedings have been replaced by removal proceedings.  See generally INA §§ 239, 240, 8 C.F.R. §§ 1003.12 et seq., 1240.1 et seq.  However, immigration judges continue to conduct deportation and exclusion proceedings in certain cases that began before April 1, 1997.

          (2) Compared with removal proceedings — The procedures in deportation and exclusion proceedings are generally similar to the procedures in removal proceedings.  See Chapters 2 (Appearances before the Immigration Court), 3 (Filing with the Immigration Court), 4 (Hearings before the Immigration Judges), (Motions before the Immigration Court), 6 (Appeals of Immigration Judge Decisions).  However, deportation and exclusion proceedings are significantly different from removal proceedings in areas such as burden of proof, forms of relief available, and custody.  Accordingly, parties in deportation and exclusion proceedings should carefully review the laws and regulations pertaining to those proceedings.  The information in this chapter is provided as a general guideline only.

(b) Deportation Proceedings — 

          (1) Order to Show Cause — Deportation proceedings began when the former Immigration and Naturalization Service (INS) filed an Order to Show Cause (Form I-221) with the immigration court after serving it on the respondent in person or by certified mail.  See former INA § 242B(a)(1), 8 C.F.R. § 1240.40 et seq.  See also Chapter 1.2 (Function of the Office of the Chief Immigration Judge).  Similar to a Notice to Appear (Form I-862), an Order to Show Cause (Form I-221) is a written notice containing factual allegations and charge(s) of deportability.

          (2) Hearing notification — In deportation proceedings, hearing notices from the immigration court are served on the parties, personally or by certified mail, at least 14 days prior to the hearing.

          (3) Grounds of deportability — The grounds for deportation that apply in deportation proceedings are listed in former INA § 241.  In some cases, those grounds are different from the grounds of deportability in removal proceedings.  Compare former INA § 241 (prior to 1997) with current INA § 237.

          (4) Forms of relief — For the most part, the same forms of relief are available in deportation proceedings as in removal proceedings.  However, there are important differences.  Parties in deportation proceedings should carefully review the relevant law and regulations.

          (5) Appeals  In most cases, an immigration judge’s decision in a deportation proceeding can be appealed to the Board of Immigration Appeals.  See Chapter 6 (Appeals of Immigration Judge Decisions).

(c) Exclusion Proceedings — 

          (1) Notice to Applicant Detained for Hearing — Exclusion proceedings began when the Immigration and Naturalization Service (INS) filed a Notice to Applicant for Admission Detained for Hearing before an Immigration Judge (Form I-122).  See former INA § 242(b), 8 C.F.R. § 1240.30 et seq.  The Form I-122 is a written notice containing the charge(s) of excludability.  Unlike the Order to Show Cause, the Form I-122 does not contain factual allegations. 

          (2) Hearing notification — In exclusion proceedings, the noncitizen must be given a reasonable opportunity to be present at the hearing.  Note that, in exclusion proceedings, notice to the noncitizen is not governed by the same standards as in deportation proceedings.  See Matter of Nafi, 19 I&N Dec. 430 (BIA 1987).

          (3) Closed to public — Exclusion hearings are closed to the public unless the applicant requests that the public be allowed to attend.

          (4) Grounds of excludability — The grounds for exclusion are listed in the former INA § 212.  In some cases, the grounds of excludability in exclusion proceedings are different from the grounds of inadmissibility in removal proceedings.  Compare former INA § 212 (prior to 1997) with current INA § 212.

          (5) Forms of relief — For the most part, the same forms of relief are available in exclusion proceedings as in removal proceedings.  However, there are important differences.  Parties in exclusion proceedings should carefully review the relevant law and regulations.

          (6) Appeals  An immigration judge’s decision in an exclusion proceeding can be appealed to the Board of Immigration Appeals.  See Chapter 6 (Appeals of Immigration Judge Decisions).