The FrameworkBackground
Congress merged exclusion and deportation into removal.
Removal proceedings are the unified enforcement mechanism Congress established to determine whether an alien may lawfully remain in the United States. Prior to 1996, immigration law separated enforcement into exclusion proceedings under INA § 236 and deportation proceedings under INA § 242. Through the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA), Congress abolished that distinction and created a single adjudicatory framework—removal proceedings under INA § 240 (8 U.S.C. § 1229a).
Under this unified structure, removal proceedings are designed to adjudicate both inadmissibility and deportability. Inadmissibility is governed by INA § 212 (8 U.S.C. § 1182) and addresses defects at the time of entry or admission, including unlawful entry, fraud, or ineligibility at inception. Deportability is governed by INA § 237 (8 U.S.C. § 1227) and applies where an alien was lawfully admitted but later violated the terms of admission or committed a removable offense. Congress expressly authorized immigration judges to consider both grounds in a single proceeding to ensure that all defects in an alien’s admission or continued presence are resolved in one forum.
This structure is particularly significant in fraud cases. Where an alien obtained admission or adjustment of status through fraud or misrepresentation, the admission is legally defective, permitting DHS to charge inadmissibility notwithstanding an apparent admission. DHS may also plead inadmissibility and deportability in the alternative, consistent with INA § 240. By allowing overlapping or alternative charges, removal proceedings prevent procedural loopholes, avoid serial litigation, and preserve Congress’s intent that immigration enforcement operate as a final and comprehensive adjudication rather than a fragmented administrative process.
CitationsLaw & Policy
Statutes
- 8 U.S.C. § 1226 – Apprehension and detention of aliens
- 8 U.S.C. § 1226(a) – Mandatory detention
- 8 U.S.C. § 1227 – Deportable aliens
- 8 U.S.C. § 1228(a) – Expedited removal of aliens convicted of committing aggravated felonies
- 8 U.S.C. § 1229 – Initiation of removal proceedings
- 8 U.S.C. § 1229a – Removal proceedings
- 8 U.S.C. § 1229b – Cancellation of removal; adjustment of status
- 8 U.S.C. § 1229c – Voluntary departure
- 8 U.S.C. § 1231 – Detention and removal of aliens ordered removed
Regulations
- 8 C.F.R. § 236 – Apprehension and Detention of Inadmissible and Deportable Aliens; Removal of Aliens Ordered Removed
- 8 C.F.R. § 238 – Expedited Removal of Aggravated Felons
- 8 C.F.R. § 239 – Initiation of Removal Proceedings
- 8 C.F.R. § 240 – Voluntary Departure, Suspension of Deportation and Special Rule Cancellation of Removal
- 8 C.F.R. § 241 – Apprehension and Detention of Aliens Ordered Removed
Policies
Executive Orders
Trump II Administration
- April 28, 2025 – E.O. 14287 – Protecting American Communities From Criminal Aliens
- January 20, 2025 – E.O. 14159 — Protecting the American People Against Invasion
Biden Administration
- January 20, 2021 – E.O. 13993 – Revision of Civil Immigration Enforcement Policies and Priorities (Biden)
Trump I Administration
- January 25, 2017 – E.O. 13768 – Enhancing Public Safety in the Interior of the United States (Trump)
- January 25, 2017 – E.O. 13767 – Border Security and Immigration Enforcement Improvements (Trump)
Memoranda
- April 3, 2022 – ICE – Kerry E. Doyle, Guidance to OPLA Attorneys Regarding the Enforcement of Civil Immigration Laws and the Exercise of Prosecutorial Discretion
- September 30, 2021 – DHS – Alejandro N. Mayorkas, Guidelines for the Enforcement of Civil Immigration Law (see also Supreme Court decision
- January 20, 2021 – DHS – David Pekoske, Review of and Interim Revision to Civil Immigration Enforcement and Removal Policies and Priorities
- June 28, 2018 – USCIS – PM-602-0050.1 – Guidance for making referrals for deportation
- June 17, 2011 – ICE – John Morton, Exercising Prosecutorial Discretion Consistent with the Civil Immigration Enforcement Priorities of the Agency for the Apprehension, Detention, and Removal of Aliens
- March 2, 2011 – ICE – John Morton, Civil Immigration Enforcement Priorities for the Apprehension, Detention, and Removal of Aliens
- November 7, 2007 – ICE – Julie L.Myers, Prosecutorial and Custody Discretion
- October 24, 2005 – ICE – William J. Howard, Prosecutorial Discretion
- May 17, 2001 – INS – Bo Cooper, Motions to Reopen for Considerations of Adjustment of Status
- November 17, 2000 – INS – Doris Meissner, Exercising Prosecutorial Discretion
- July 11, 2000 – INS – Bo Cooper, INS Exercise of Prosecutorial Discretion
- July 15, 1976 – INS – Sam Bernsen, Legal Opinion Regarding Service Exercise of Prosecutorial Discretion
Forms
DHS
- Form I-862, Notice to Appear