Crimes of Moral Turpitude

(C)  For Non-LPR Aggravated Felons.[168]  If the noncitizen is not a lawful permanent resident, or a conditional resident, and is convicted of an aggravated felony, s/he is subject to expedited administrative removal by the DHS directly, without ever appearing before an immigration judge.[169]  A noncitizen in this situation is conclusively presumed to be deportable from the United States,[170] and is ineligible for all forms of discretionary relief.[171]  The noncitizen may be subjected to this process even if the aggravated felony conviction occurred prior to “admission” into the United States,[172] and even if the noncitizen was never admitted.[173]  These decisions are nearly unreviewable.[174]  Several courts have rejected challenges to this statute.[175]

            Once regular removal proceedings have begun before an immigration judge, the DHS does not appear to have the authority to compel the judge to terminate those proceedings so that the DHS can begin expedited removal proceedings.  The DHS has the authority to terminate expedited removal proceedings and initiate regular removal proceedings, rather than expedited proceedings, for aggravated felons.[176]

[168] For more on this, see Merlin, Nicholas, Comment, Immigration policy and the expedited removal rule: “equality for some, justice for none,” 16 St. Thomas L. Rev. 163-185 (2003).

[169] INA § 238(b), 8 U.S.C. § 1228(b).

[170] INA § 238(c), 8 U.S.C. § 1228(c).

[171] INA § 238(c)(5), 8 U.S.C. § 1228(c)(5).  The only form of immigration relief made available under the regulations is withholding of removal, INA § 241(b), 8 U.S.C. § 1231(b).  8 C.F.R. § 238.1(f)(3).  Relief under the Convention Against Torture should also be available, as this is not a form of “discretionary” relief.

[172] Bamba v. Elwood, 252 F.Supp.2d 195 (E.D.Pa. Mar. 27, 2003) (expedited removal under INA § 238(b), 8 U.S.C. § 1228(b) applies to one convicted of aggravated felony prior to admission to the United States).

[173] United States v. Hernandez-Vermudez, 356 F.3d 1011 (9th Cir. Jan. 26, 2004); Bazan-Reyes v. INS, 256 F.3d 600, 605 (7th Cir. 2001).

[174] See INA § 242(e), 8 U.S.C. § 1252(e).

[175] See, e.g., Flores-Ledezma v. Gonzales, 415 F.3d 375 (5th Cir. June 27, 2005) (rejecting claim that Attorney General’s statutory discretion to choose between expedited removal proceedings and general removal proceedings violates due process); United States v. Rangel De Aguil, 308 F.3d 1134 (10th Cir. 2002) (lack of neutral adjudicator does not violate due process).

[176] 8 C.F.R § 238(d)(2)(iii).