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Can Criminal Aliens Stay on a Technicality?

IRLI shows law is not a game of “gotcha” for DHS

WASHINGTON – Various classes of aliens – millions each year – are arrested by U.S. Immigration and Customs Enforcement (ICE). Many are in the country illegally, many have committed serious crimes. Today, in a friend-of-the-court brief filed with the Board of Immigration Appeals, the Immigration Reform Law Institute (IRLI) shows that, under the law, these aliens cannot avoid deportation merely because overworked ICE officers did not check boxes on their Notice to Appear forms that seek inessential information.

In its brief, IRLI shows again and again that, under the clear terms of multiple statutes, aliens need only be informed of a short list of items, such as the time and place of their removal hearings, for notice to be effective. It is not necessary that ICE check the box informing an alien, for example, that he crossed the border illegally, or that he committed an aggravated felony. Presumably, the alien knows these things already. In any case, ICE’s failure to fill in a government form completely cannot be used by aliens to create extra rights that are not in the governing statutes.

“Thankfully, our immigration laws are not set up for the convenience of criminal or illegal aliens,” said Dale L. Wilcox, executive director and general counsel of IRLI. “Due process under the Constitution for these aliens consists of the procedures Congress has afforded them in the law. And Congress did not create a law strewn with technicalities for immigration enforcement agents to trip up on, and for these aliens to exploit to stay here. We hope the Board reaffirms the rule of law – not rule by government form – in this case, and does not put yet further roadblocks in the way of solving our gigantic, decades-in-the-making immigration crisis.”

The case is Amicus Invitation No. 20-24-02 (BIA).


For additional information, contact:

Brian Lonergan • 202-232-5590 • blonergan@irli.org

IRLI is a supporting organization of the Federation for American Immigration Reform.

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