7.4 - Limited Proceedings

(a) In General

Certain aliens can be removed from the United States without being placed into removal proceedings.  However, in some circumstances, these aliens may be afforded limited proceedings, including credible fear review, reasonable fear review, claimed status review, asylum-only proceedings, and withholding-only proceedings.

(b) Classes of Aliens

The following aliens can be removed from the United States without being placed into removal proceedings.  These aliens are afforded limited proceedings as described below.

     (1) Expedited removal under INA § 235(b)(1) - The following aliens are subject to “expedited removal” under INA § 235(b)(1):

• those arriving at a port of entry without valid identity or travel documents, as required, or with fraudulent documents;
• those interdicted at sea (in international or U.S. waters) and brought to the United States;
• those paroled into the United States after April 1, 1997, and whose parole has since been terminated;
• those who did not arrive by sea, who are apprehended anywhere in the United States more than 100 air miles from a U.S. international land border, and who have been continuously present in the United States for less than two years; and
• those who did not arrive by sea, who are apprehended within 100 air miles from a U.S. international land border, and who have been continuously present in the United States for at least 14 days but for less than two years.

Each alien placed in expedited removal under this designation bears the affirmative burden to show to the satisfaction of an immigration officer that the alien has been present in the United States continuously for the relevant period.

This designation does not apply to aliens who arrive at U.S. ports of entry, because those aliens are already subject to expedited removal

          (A) Exceptions - The following aliens are not subject to expedited removal under INA § 235(b)(1):

• lawful permanent residents
• aliens granted refugee or asylee status
• aliens seeking asylum while applying for admission under the visa waiver program
• minors, unless they have committed certain crimes

          (B) Limited proceedings afforded - As described below, aliens subject to expedited removal under INA § 235(b)(1) are afforded the following proceedings:

• if the alien expresses a fear of persecution or torture, the alien is placed into “credible fear proceedings,” as described in subsection (d), (below)
• if the alien claims to be a United States citizen or a lawful permanent resident, or that he or she has been granted refugee or asylee status, the alien is allowed a “claimed status review,” as described in subsection (f), (below)

     (2) Expedited removal under INA § 238(b) - Aliens who are not lawful permanent residents and who have been convicted of aggravated felonies are subject to “expedited removal” under INA § 238(b).  If such an alien expresses a fear of persecution or torture, the alien is placed into “reasonable fear proceedings.”  See subsection (e), below.

     (3) Reinstatement of prior orders under INA § 241(a)(5) - Under INA § 241(a)(5), aliens who are subject to reinstatement of prior orders of removal are not entitled to removal proceedings.  If such an alien expresses a fear of persecution or torture, the alien is placed into “reasonable fear proceedings.”  See subsection (e), below.

     (4) Stowaways - If a stowaway expresses a fear of persecution or torture, he or she is placed into credible fear proceedings.  See INA § 235(a)(2), subsection (d), below.

     (5) Others - In certain circumstances, the aliens listed below may be placed into asylum-only proceedings.  See subsection (g), below.

• stowaways with a credible fear of persecution or torture
• crewmembers (D visa applicants)
• certain cooperating witnesses and informants (S visa applicants)
• visa waiver applicants and visa waiver overstays
• aliens subject to removal under INA § 235(c) on security grounds

(c) Custody in Limited Proceedings

An alien subject to limited proceedings may be detained during the proceedings.  Immigration Judges have no jurisdiction over custody decisions for these aliens.

(d) Credible Fear Proceedings

Credible fear proceedings involve stowaways and aliens subject to expedited removal under INA § 235(b)(1).  See subsections (b)(1), (b)(3), above.  If such an alien expresses a fear of persecution or torture to the Department of Homeland Security (DHS) immigration officer upon being detained by DHS or applying to enter the United States, then the alien is interviewed by a United States Citizenship and Immigration Services (USCIS) asylum officer who evaluates whether the alien possesses a credible fear of persecution or torture.  See generally INA § 235(b)(1)(B).

     (1) Credible fear standard - “Credible fear of persecution” means that there is a significant possibility that the alien can establish eligibility for asylum under INA § 208 or withholding of removal (“restriction on removal”) under INA § 241(b)(3).  The credibility of the alien’s statements in support of the claim, and other facts known to the reviewing official, are taken into account.  8 C.F.R. §§ 208.30(e)(2), 1003.42(d).

“Credible fear of torture” means there is a significant possibility that the alien is eligible for withholding of removal (“restriction on removal”) or deferral of removal under the Convention Against Torture pursuant to 8 C.F.R. §§ 208.16 or 208.17.  8 C.F.R. §§ 208.30(e)(3), 1003.42(d).

     (2) If the USCIS asylum officer finds credible fear 

          (A) Stowaways - If the DHS asylum officer finds that a stowaway has a credible fear of persecution or torture, the stowaway is placed in asylum-only proceedings before an Immigration Judge.  See 8 C.F.R. § 208.30(f).  In asylum-only proceedings, the stowaway can apply for asylum, withholding of removal (“restriction on removal”) under INA § 241(b)(3), and protection under the Convention Against Torture.  See subsection (g), below.

          (B) Aliens subject to expedited removal under INA § 235(b)(1) - If the USCIS asylum officer finds that an alien subject to expedited removal under INA § 235(b)(1) has a credible fear of persecution or torture, USCIS may, at its discretion, conduct further proceedings to evaluate the alien’s eligibility for asylum.  If USCIS does so, the written record of the alien’s positive credible fear finding is deemed by USCIS to be an application for asylum.  USCIS schedules an asylum merits interview for the alien with an asylum officer and, following the interview, decides whether to grant the alien’s asylum application.  If USCIS decides not to grant the asylum application, the alien is placed into streamlined removal proceedings, as described further in Chapter 7.6 (Streamlined Removal Proceedings). See 8 C.F.R. §§ 208.3(a)(2); 208.2(a)(2); 208.14(c)(1); 208.30(f); 1240.17. 

If—subsequent to a credible fear finding—USCIS chooses not to consider the alien’s eligibility for asylum further, then USCIS will place the alien in removal proceedings before an Immigration Judge.  See 8 C.F.R. § 208.30(f).  In removal proceedings, the alien has the same rights, obligations, and opportunities for relief as any other alien in removal proceedings.  See Chapter 4 (Hearings before the Immigration Judges).

     (3) If the USCIS asylum officer does not find credible fear - If the USCIS asylum officer finds that the alien does not have a credible fear of persecution or torture, the alien may request that an Immigration Judge review this finding.  See 8 C.F.R. § 208.30(g).

     (4) Credible fear review by an Immigration Judge - The credible fear review is conducted according to the provisions in (A) through (E), below.  See generally INA § 235(b)(1)(B), 8 C.F.R. § 1003.42.

          (A) Timing - The credible fear review must be concluded no later than 7 days after the date of the USCIS asylum officer’s decision.  If possible, the credible fear review should be concluded 24 hours after the decision. 8 C.F.R. § 1003.42(e).

          (B) Location - If possible, the credible fear review is conducted in person.  However, because of the time constraints, the credible fear review may be conducted by video or telephone conference.  8 C.F.R. § 1003.42(c); see Chapter 4.7 (Hearings by Video or Telephone Conference).

          (C) Consultation - Prior to the credible fear review, the alien may consult with a person or persons of the alien’s choosing.  8 C.F.R. § 1003.42(c). In the discretion of the Immigration Judge, persons consulted may be present during the credible fear review.  However, the alien is not represented at the credible fear review.  Accordingly, persons acting on the alien’s behalf are not entitled to make opening statements, call and question witnesses, conduct cross examinations, object to evidence, or make closing arguments.

          (D) Record of Proceedings - DHS must give the complete record of the USCIS asylum officer’s credible fear determination to the Immigration Court.  This record includes any notes taken by the USCIS asylum officer. The Immigration Judge creates a record, which is kept separate from the Record of Proceedings in any subsequent Immigration Court proceeding involving the alien.

          (E) Conduct of hearing - A credible fear review is not as exhaustive or in-depth as an asylum hearing in removal proceedings.  Rather, a credible fear review is simply a review of the USCIS asylum officer’s decision.  Either the alien or DHS may introduce oral or written statements, and the court provides an interpreter if necessary.  Evidence may be introduced at the discretion of the Immigration Judge.  The hearing is recorded.  Parties should be mindful that all requests for continuances are subject to the statutory time limits.  See (A), above.

     (5) If the Immigration Judge finds credible fear

          (A) Stowaways - If the Immigration Judge finds that a stowaway has a credible fear of persecution or torture, the stowaway is placed in asylum-only proceedings.  See 8 C.F.R. § 1208.30(g)(2)(iv)(C).  In asylum-only proceedings, the stowaway can apply for asylum, withholding of removal ("restriction on removal”) under INA § 241(b)(3), and protection under the Convention Against Torture.  See subsection (g), below.

          (B) Aliens subject to expedited removal under INA § 235(b)(1) - If the Immigration Judge finds that an alien subject to expedited removal under INA § 235(b)(1) has a credible fear of persecution or torture, USCIS may, in its discretion, conduct further proceedings to consider the alien’s eligibility for asylum.  If USCIS does so, it deems the written record of the alien’s positive credible fear finding as an application for asylum.  USCIS then schedules an asylum merits interview for the alien with an asylum officer and, following the interview, decides whether to grant the alien’s asylum application.  If USCIS decides not to grant the asylum application, then the alien is placed into streamlined removal proceedings as described in Chapter 7.6 (Streamlined Removal Proceedings).  See 8 C.F.R. §§ 208.3(a)(2); 208.2(a)(2); 208.14(c)(1); 208.30(f); 1240.17.

If—subsequent to a credible fear finding—USCIS chooses not to consider the alien’s eligibility for asylum further, then USCIS will place the alien in removal proceedings. See 8 C.F.R. §§ 1003.42(f); 1208.30(g)(2)(iv)(A)-(B). In removal proceedings, the alien has the same rights, obligations, and opportunities for relief, including the opportunity to apply for asylum, as any other alien in removal proceedings.  See Chapter 4 (Hearings before the Immigration Judges).

     (6) If the Immigration Judge does not find credible fear - If the Immigration Judge does not find credible fear of persecution or torture, the alien is returned to DHS for removal. Neither party may appeal an Immigration Judge’s ruling in a credible fear review.  However, after providing notice to the Immigration Judge, DHS may reconsider its determination that an alien does not have a credible fear of persecution.  See 8 C.F.R. § 1208.30(g)(2)(iv)(A).

(e)  Reasonable Fear Proceedings

Reasonable fear proceedings involve aliens subject to expedited removal under INA § 238(b) and aliens subject to reinstatement of prior orders of removal under INA § 241(a)(5).  See subsections (b)(2), (b)(3), above.  If such an alien expresses a fear of persecution or torture to the Department of Homeland Security (DHS) immigration officer, the alien is interviewed by a DHS asylum officer who evaluates whether the alien has a "A reasonable fear of persecution or torture.”  See generally 8 C.F.R. § 1208.31.

     (1) Reasonable fear standard - “Reasonable fear of persecution or torture” means a reasonable possibility that the alien would be persecuted on account of his or her race, religion, nationality, membership in a particular social group, or political opinion, or a reasonable possibility that the alien would be tortured if returned to the country of removal.  The bars to eligibility for withholding of removal (“restriction on removal”) under INA § 241(b)(3)(B) are not considered.  8 C.F.R. § 1208.31(c).

     (2) If the USCIS asylum officer finds reasonable fear - If the USCIS asylum officer finds that the alien has a reasonable fear of persecution or torture, the alien is placed in withholding-only proceedings before an Immigration Judge.  See 8 C.F.R. § 208.31(e).  In withholding-only proceedings, the alien can apply for withholding of removal (“restriction on removal”) under INA § 241(b)(3) and protection under the Convention Against Torture.  See subsection (h), below.

     (3) If the USCIS asylum officer does not find reasonable fear - If the USCIS asylum officer finds that the alien does not have a reasonable fear of persecution or torture, the alien may request that an Immigration Judge review this finding.  See 8 C.F.R. § 208.31(f).

     (4) Reasonable fear review by an Immigration Judge - The reasonable fear review is conducted according to the provisions in (A) through (E), below.  See generally 8 C.F.R. § 1208.31.

          (A) Timing - In the absence of exceptional circumstances, the reasonable fear review is conducted within 10 days after the case is referred to the Immigration Court. 8 C.F.R. § 1208.31(g). 

          (B) Location - If possible, the reasonable fear review is conducted in person.  However, because of the time constraints, the reasonable fear review may be conducted by video or telephone conference.  See Chapter 4.7 (Hearings by Video or Telephone Conference).  

          (C) Representation - Subject to the Immigration Judge’s discretion, the alien may be represented by a practitioner of record during the reasonable fear review at no expense to the government.

          (D) Record of Proceedings - DHS must file the complete record of the USCIS asylum officer’s reasonable fear determination with the Immigration Court.  This record includes any notes taken by the USCIS asylum officer.  8 C.F.R. § 1208.31(g). The Immigration Judge creates a record, which is kept separate from the Record of Proceedings in any subsequent Immigration Court proceeding involving the alien.

          (E) Conduct of hearing - A reasonable fear review hearing is not as comprehensive or in-depth as a withholding of removal hearing in removal proceedings.  Rather, it is a review of the USCIS asylum officer’s decision.  Either party may introduce oral or written statements, and the court provides an interpreter if necessary.  Evidence may be introduced at the discretion of the Immigration Judge.  The hearing is recorded.  Parties should be mindful that all requests for continuances are subject to the statutory time limits.  See (A), above.

     (5) If the Immigration Judge finds reasonable fear - If the Immigration Judge finds that the alien has a reasonable fear of persecution or torture, the alien is placed in withholding-only proceedings.  See 8 C.F.R. § 1208.31(g)(2).  In withholding-only proceedings, the alien can apply for withholding of removal ("A restriction on removal”) under INA § 241(b)(3) and protection under the Convention Against Torture.  See subsection (h).

     (6) If the Immigration Judge does not find reasonable fear - If the Immigration Judge does not find a reasonable fear of persecution or torture, the alien is returned to DHS for removal.  There is no appeal from an Immigration Judge’s ruling in a reasonable fear review.  See 8 C.F.R. § 1208.31(g)(1).

(f) Claimed status review

If an individual is found by a Department of Homeland Security (DHS) immigration officer to be subject to expedited removal under INA § 235(b)(1), but claims to be a United States citizen or lawful permanent resident, or to have been granted asylum or admitted to the United States as a refugee, the DHS immigration officer will attempt to verify that claim.  If the claim cannot be verified, the individual is allowed to make a statement under oath.  The case is then reviewed by an Immigration Judge in a “claimed status review.”  See generally 8 C.F.R. § 1235.3(b)(5).

     (1) Timing - Claimed status reviews are scheduled as expeditiously as possible, preferably no later than 7 days after the case was referred to the Immigration Court and, if possible, within 24 hours.  Claims to United States citizenship may require more time to permit the alien to obtain relevant documentation. 

     (2) Location - If possible, the claimed status review is conducted in person.  However, because of the time constraints, the claimed status review may be conducted by video or telephone conference.  See Chapter 4.7 (Hearings by Video or Telephone Conference).  

     (3) Representation - Prior to the claimed status review, the individual subject to the review may consult with a person or persons of his or her choosing.  In the discretion of the Immigration Judge, persons consulted may be present during the claimed status review.  However, the individual subject to the review is not represented during the review.  Accordingly, persons acting on his or her behalf are not entitled to make opening statements, call and question witnesses, conduct cross examinations, object to evidence, or make closing arguments.

     (4) Record of Proceedings - The Immigration Judge creates a Record of Proceedings.  If an individual subject to a claimed status review is later placed in removal proceedings, the Record of Proceedings for the claimed status review is merged with the Record of Proceedings for the removal proceedings.

     (5) Conduct of hearing - Either party may introduce oral or written statements, and an interpreter is provided if necessary.  Though the claimed status review is limited in nature, claims to status, particularly claims to United States citizenship, can be complicated and may require extensive evidence.  Therefore, the Immigration Judge has the discretion to continue proceedings to allow DHS and the person making the claim to collect and submit evidence.  The hearing is recorded.

     (6) If the Immigration Judge verifies the claimed status - If the Immigration Judge determines that the individual subject to the review is a United States citizen or lawful permanent resident, or that he or she has been granted asylum or refugee status, the expedited removal order is vacated, or cancelled, and the proceedings are terminated.

Unless the Immigration Judge determines that the person in proceedings is a United States citizen, DHS may elect to place him or her in removal proceedings.  In removal proceedings, he or she has the same rights, obligations, and opportunities for relief as any other alien in removal proceedings.  See Chapter 4 (Hearings before the Immigration Judges).

     (7) If the Immigration Judge cannot verify the claimed status - If the Immigration Judge determines that the subject of a claimed status review is not a United States citizen or lawful permanent resident, and that he or she has not been granted asylee or refugee status, the individual is returned to DHS for removal.  There is no appeal from an Immigration Judge’s ruling in a claimed status review.

(g) Asylum-Only Proceedings

Asylum-only proceedings are limited proceedings in which the Immigration Judge considers applications for asylum, withholding of removal (“restriction on removal”) under INA § 241(b)(3), and protection under the Convention Against Torture.

     (1) Beginning asylum-only proceedings - Asylum-only proceedings are commenced as follows, depending upon the status of the alien.

          (A) Stowaways with a credible fear of persecution or torture - When a USCIS asylum officer or an Immigration Judge finds that a stowaway has a credible fear of persecution or torture, the stowaway’s matter is referred to the Immigration Court for an asylum-only proceeding.  See 8 C.F.R. §§ 208.30(f), 1208.2(c)(1)(ii), 1208.30(g)(2)(iv)(C).

          (B) Crewmembers (D visa applicants) - When an alien crewmember expresses a fear of persecution or torture to a DHS immigration officer, he or she is removed from the vessel and taken into DHS custody.  The crewmember is then provided an Application for Asylum and for Withholding of Removal (Form I-589), which must be completed and returned to DHS within 10 days unless DHS extends the deadline for good cause.  The application is then referred to the Immigration Court for an asylum-only proceeding.  See 8 C.F.R. §§ 1208.2(c)(1)(i), 1208.5(b)(1)(ii).

          (C) Visa waiver applicants and overstays - When an alien who has applied for admission, been admitted, or overstayed his or her admission under the visa waiver program expresses a fear of persecution or torture to a DHS immigration officer, or applies for asylum with DHS, the matter may be referred to the Immigration Court for an asylum-only proceeding.  See 8 C.F.R.  §§ 1208.2(c)(1)(iii), 1208.2(c)(1)(iv).

          (D) Certain cooperating witnesses and informants (S visa applicants) - When an alien who has applied for admission, or been admitted, with an S visa expresses a fear of persecution or torture to a DHS immigration officer, or applies for asylum with DHS, the matter is referred to the Immigration Court for an asylum-only proceeding.  See 8 C.F.R. § 1208.2(c)(1)(vi).

          (E)  Persons subject to removal under INA § 235(c) on security grounds - When a DHS immigration officer or an Immigration Judge suspects that an arriving alien appears removable as described in INA § 235(c), the alien is ordered removed, and the matter is referred to a DHS district director.  A DHS regional director may then order the case referred to an Immigration Judge for an asylum-only proceeding.  See 8 C.F.R. §§ 1208.2(c)(1)(v), 1235.8.

     (2) Scope of the proceedings - Asylum-only proceedings are limited to applications for asylum, withholding of removal (“restriction on removal”) under INA § 241(b)(3), and protection under the Convention Against Torture.  Neither the alien nor DHS may raise any other issues, including issues of admissibility, deportability, eligibility for waivers, and eligibility for any other form of relief.  See 8 C.F.R. § 1208.2(c)(3)(i).

     (3) Conduct of the proceedings - Asylum-only proceedings are conducted under the procedures governing removal proceedings.  See 8 C.F.R. § 1208.2(c)(3).  See also Chapter 4 (Hearings before Immigration Judges). 

     (4) Appeals - Decisions by Immigration Judges in asylum-only proceedings may be appealed to the Board of Immigration Appeals.

(h) Withholding-Only Proceedings

Withholding-only proceedings are limited proceedings involving aliens subject to expedited removal under INA § 238(b) and aliens subject to reinstatement of prior orders of removal under INA § 241(a)(5), who have a reasonable fear of persecution or torture.  See 8 C.F.R. § 1208.2(c)(2).  In withholding-only proceedings, the Immigration Judge considers applications for withholding of removal (“restriction on removal”) under the Immigration and Nationality Act and protection under the Convention Against Torture.

     (1) Beginning withholding-only proceedings - When a DHS asylum officer or Immigration Judge finds that an alien subject to expedited removal under INA § 238(b) or an alien subject to reinstatement of a prior order of removal under INA § 241(a)(5) has a reasonable fear of persecution or torture, the matter is referred to the Immigration Court for a withholding-only proceeding.  See 8 C.F.R. §§ 208.31(e), 1208.31(g)(2).

     (2) Scope of the proceedings - Withholding-only proceedings are limited to applications for withholding of removal (“restriction on removal”) under INA § 241(b)(3) and protection under the Convention Against Torture.  Neither the alien nor DHS may raise any other issues, including issues of admissibility, deportability, eligibility for waivers, and eligibility for any other form of relief.  8 C.F.R. § 1208.2(c)(3)(i).

     (3) Conduct of the proceedings - Withholding-only proceedings are conducted under the procedures governing removal proceedings.  See 8 C.F.R. § 1208.2(c)(3).  See also Chapter 4 (Hearings before Immigration Judges).

     (4) Appeals - Decisions by Immigration Judges in withholding-only proceedings may be appealed to the Board of Immigration Appeals.