LAW & POLICY
Removal
Removal proceedings determine whether an alien is inadmissible or deportable under federal law.
Background
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.
Law & 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 TX court decision / 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