IFS Deportation & Removal Defense 5 — Questions and Answers
Question 1: Which statutory provision provides the authority to detain noncitizens during removal proceedings?
- INA § 236 (Correct answer)
- INA § 240
- INA § 245
- INA § 101
Correct answer: INA § 236
INA § 236 governs the arrest, detention, and release of noncitizens pending removal proceedings, including bond authority.
Question 2: What is the standard used at a bond hearing before an immigration judge for a non-mandatory detainee?
- Preponderance of the evidence that the person is removable
- Whether the person is a danger to the community or a flight risk (Correct answer)
- Proof beyond a reasonable doubt of criminal history
- Whether the person has a pending application for relief
Correct answer: Whether the person is a danger to the community or a flight risk
At a bond hearing, an immigration judge assesses whether the noncitizen poses a danger to the community or is a flight risk to determine whether to set bond.
Question 3: Which of the following is a ground of deportability under INA § 237 that does NOT apply as a ground of inadmissibility?
- Having a communicable disease
- Failure to register and notify change of address (Correct answer)
- Drug conviction at time of admission
- Unlawful presence
Correct answer: Failure to register and notify change of address
Failure to comply with alien registration and address notification requirements (INA § 237(a)(3)) is a deportability ground with no direct inadmissibility counterpart.
Question 4: What is 'adjustment of status' as a defense in removal proceedings?
- A request to reduce the severity of charges
- An application to become a lawful permanent resident filed before the immigration judge (Correct answer)
- A motion to transfer venue to federal court
- A request for prosecutorial discretion
Correct answer: An application to become a lawful permanent resident filed before the immigration judge
In some cases, a respondent in removal proceedings can apply for adjustment of status to LPR before the immigration judge as a form of relief from removal.
Question 5: What does it mean for a conviction to be 'vacated on the merits' in the context of immigration consequences?
- The conviction is sealed but remains on the record
- The conviction is overturned due to a legal or constitutional defect, eliminating it for immigration purposes (Correct answer)
- The sentence is reduced below 365 days
- The noncitizen receives a pardon from the Governor
Correct answer: The conviction is overturned due to a legal or constitutional defect, eliminating it for immigration purposes
A conviction vacated on the merits (due to a legal defect, not just for immigration purposes) is no longer considered a conviction for immigration law purposes.
Question 6: Which doctrine allows a noncitizen to seek reopening of an in absentia removal order by showing exceptional circumstances for failure to appear?
- The fugitive disentitlement doctrine
- The exceptional circumstances exception under INA § 240(b)(5)(C) (Correct answer)
- The equitable tolling doctrine under Artuz v. Bennett
- The abuse of discretion standard
Correct answer: The exceptional circumstances exception under INA § 240(b)(5)(C)
INA § 240(b)(5)(C) allows rescission of an in absentia order if the noncitizen demonstrates that failure to appear was due to exceptional circumstances such as serious illness or battery.
Question 7: Under the categorical approach, how do immigration judges determine whether a state criminal conviction is an aggravated felony?
- By reviewing the actual facts of the underlying offense
- By comparing the elements of the state offense to the generic federal definition, looking only at the statute of conviction (Correct answer)
- By interviewing the arresting officer
- By reviewing the plea colloquy transcript only
Correct answer: By comparing the elements of the state offense to the generic federal definition, looking only at the statute of conviction
Under the categorical approach established in Taylor v. United States, courts compare the elements of the statute of conviction to the generic federal definition without considering the actual conduct.
IFS Deportation & Removal Defense 5
Which statutory provision provides the authority to detain noncitizens during removal proceedings?