The statute authorizing administrative removal states as a matter of law that someone in administrative removal proceedings is not eligible for discretionary relief even though a person may theoretically be eligible for some sort of relief, such as adjustment of status with a firearms trafficking aggravated felony. 8 U.S.C. 1228(b)(5). As to mandatory forms of relief, the regulations implementing the statute allow for some mechanism to apply for withholding of removal. See 8 CFR 238. A defendant who fears persecution, and who cannot read, could demonstrate that the proceedings are unfair and that the defendant suffered prejudice. Those same regulations allow a person to inspect evidence and challenge the propriety of subjecting him or her to removal on that ground. Judicial review is available for administrative removal, but several courts have rejected 8 U.S.C. 1326 challenges arguing that administrative removal proceedings are inherently unfair because there is no neutral adjudicator. See, e.g., United States v. Rangel De Aguil, 308 F.3d 1134 (10th Cir. 2002).

jurisdiction: 
Other

 

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