7.4 - Limited Proceedings

(a) In General — Certain noncitizens can be removed from the United States without being placed into removal proceedings.  However, in some circumstances, these individuals may be afforded limited proceedings, including credible fear review, reasonable fear review, claimed status review, asylum-only proceedings, and withholding-only proceedings.

(b) Classes of Noncitizens — The following noncitizens can be removed from the United States without being placed into removal proceedings.  These noncitizens are afforded limited proceedings as described below.

          (1) Expedited removal under INA § 235(b)(1) — The following noncitizens are subject to “expedited removal” under INA § 235(b)(1):

• noncitizens arriving at a port of entry without valid identity or travel documents, as required, or with fraudulent documents
• noncitizens interdicted at sea (in international or U.S. waters) and brought to the United States

• individuals who have not been admitted or paroled into the United States and who have been continuously present in the United States for fewer than 14 days
• individuals paroled into the United States after April 1, 1997, and whose parole has since been terminated

(A) Exceptions — The following noncitizens are not subject to expedited removal under INA § 235(b)(1):

• lawful permanent residents
• noncitizens granted refugee or asylee status
• noncitizens seeking asylum while applying for admission under the visa waiver program
• minors, unless they have committed certain crimes

(B) Limited proceedings afforded — As described below, noncitizens subject to expedited removal under INA § 235(b)(1) are afforded the following proceedings:

• if the noncitizen expresses a fear of persecution or torture, the noncitizen is placed into “credible fear proceedings,” as described in subsection (d), (below)
• if the individual claims to be a United States citizen or a lawful permanent resident, or that they have been granted refugee or asylee status, the individual is allowed a “claimed status review,” as described in subsection (f), (below)

          (2) Expedited removal under INA § 238(b) — Noncitizens who are not lawful permanent residents and who have been convicted of aggravated felonies are subject to “expedited removal” under INA § 238(b).  If such a noncitizen expresses a fear of persecution or torture, the noncitizen is placed into “reasonable fear proceedings.”  See subsection (e), below.

          (3) Reinstatement of prior orders under INA § 241(a)(5) — Under INA § 241(a)(5), noncitizens who are subject to reinstatement of prior orders of removal are not entitled to removal proceedings.  If such a noncitizen expresses a fear of persecution or torture, the noncitizen is placed into “reasonable fear proceedings.” See subsection (e), below.

          (4) Stowaways — If a stowaway expresses a fear of persecution or torture, they are placed into credible fear proceedings.  See INA § 235(a)(2),  subsection (d), below.

          (5) Others — In certain circumstances, the noncitizens listed below may be placed into asylum-only proceedings.  See subsection (g), below.

• stowaways with a credible fear of persecution or torture
• crewmembers (D visa applicants)
• certain cooperating witnesses and informants (S visa applicants)
• visa waiver applicants and visa waiver overstays
• noncitizens subject to removal under INA § 235(c) on security grounds

(c) Custody in Limited Proceedings — A noncitizen subject to limited proceedings may be detained during the proceedings.  Immigration judges have no jurisdiction over custody decisions for these noncitizens.

(d) Credible Fear Proceedings — Credible fear proceedings involve stowaways and noncitizens subject to expedited removal under INA § 235(b)(1).  See subsections (b)(1), (b)(3), above.  If such a noncitizen expresses a fear of persecution or torture to the Department of Homeland Security (DHS) immigration officer upon being detained by DHS or applying to enter the United States, then the noncitizen is interviewed by a United States Citizenship and Immigration Services (USCIS) asylum officer who evaluates whether the noncitizen possesses a credible fear of persecution or torture.  See generally INA § 235(b)(1)(B).

           (1) Credible fear standard — “Credible fear of persecution” means that there is a significant possibility that the noncitizen can establish eligibility for asylum under INA § 208 or withholding of removal (“restriction on removal”) under INA § 241(b)(3).  The credibility of the noncitizen’s statements in support of the claim, and other facts known to the reviewing official, are taken into account.  8 C.F.R. §§ 208.30(e)(2), 1003.42(d).

          “Credible fear of torture” means there is a significant possibility that the noncitizen is eligible for withholding of removal (“restriction on removal”) or deferral of removal under the Convention Against Torture pursuant to 8 C.F.R. §§ 208.16 or 208.17.  8 C.F.R. §§ 208.30(e)(3), 1003.42(d).

          (2) If the USCIS asylum officer finds credible fear — 

 (A) Stowaways — If the USCIS asylum officer finds that a stowaway has a credible fear of persecution or torture, the stowaway is placed in asylum-only proceedings before an immigration judge.  See 8 C.F.R. § 208.30(f).  In asylum-only proceedings, the stowaway can apply for asylum, withholding of removal (“restriction on removal”) under INA § 241(b)(3), and protection under the Convention Against Torture.  See subsection (g), below.

(B) Noncitizens subject to expedited removal under INA § 235(b)(1) — If the USCIS asylum officer finds that a noncitizen subject to expedited removal under INA § 235(b)(1) has a credible fear of persecution or torture, USCIS may, at its discretion, conduct further proceedings to evaluate the noncitizen’s eligibility for asylum.  If USCIS does so, the written record of the noncitizen’s positive credible fear finding is deemed by USCIS to be an application for asylum.  USCIS schedules an asylum merits interview for the noncitizen with an asylum officer and, following the interview, decides whether to grant the noncitizen’s asylum application.  If USCIS decides not to grant the asylum application, the noncitizen is placed into streamlined removal proceedings, as described further in Chapter 7.6.  See 8 C.F.R. §§ 208.3(a)(2), 208.14(c)(1), 208.30(f), 1240.17.

          If—subsequent to a credible fear finding—USCIS chooses not to consider the noncitizen’s eligibility for asylum further, then USCIS will place the noncitizen in removal proceedings before an immigration judge.  See 8 C.F.R. § 208.30(f).  In removal proceedings, the noncitizen has the same rights, obligations, and opportunities for relief as any other noncitizen in removal proceedings.  See Chapter 4 (Hearings before Immigration Judges).

          (3) If the USCIS asylum officer does not find credible fear — If the USCIS asylum officer finds that the noncitizen does not have a credible fear of persecution or torture, the noncitizen may request that an immigration judge review this finding.  See 8 C.F.R. § 208.30(g).

          (4) Credible fear review by an immigration judge — The credible fear review is conducted according to the provisions in (A) through (I), below.  See generally INA § 235(b)(1)(B), 8 C.F.R. § 1003.42.

(A) Timing — The credible fear review must be concluded no later than 7 days after the date of the USCIS asylum officer’s decision.  If possible, the credible fear review should be concluded 24 hours after the decision. 8 C.F.R. § 1003.42(e).

(B) Location — If possible, the credible fear review is conducted in person.  However, because of the time constraints, the credible fear review may be conducted by video or telephone conference. 8 C.F.R. § 1003.42(c); see Chapter 4.7 (Hearings by Video or Telephone Conference).

(C) Representation — Prior to the credible fear review, the noncitizen may consult with a person or persons of the noncitizen’s choosing. 8 C.F.R. § 1003.42(c). In the discretion of the immigration judge, persons consulted may be present during the credible fear review.  However, the noncitizen is not represented at the credible fear review.  Accordingly, persons acting on the noncitizen’s behalf are not entitled to make opening statements, call and question witnesses, conduct cross examinations, object to evidence, or make closing arguments.

(D) Record of Proceedings — DHS must give the complete record of the USCIS asylum officer’s credible fear determination to the immigration court.  This record includes any notes taken by the USCIS asylum officer.  The immigration judge creates a record, which is kept separate from the Record of Proceedings in any subsequent immigration court proceeding involving the noncitizens.  

(E) Conduct of hearing — A credible fear review is not as exhaustive or in-depth as an asylum hearing in removal proceedings.  Rather, a credible fear review is simply a review of the USCIS asylum officer’s decision.  Either the noncitizen or DHS may introduce oral or written statements, and the court provides an interpreter if necessary.  Evidence may be introduced at the discretion of the immigration judge.  The hearing is recorded.  Parties should be mindful that all requests for continuances are subject to the statutory time limits.  See (A), above.

          (5) If the immigration judge finds credible fear — 

(A) Stowaways — If the immigration judge finds that a stowaway has a credible fear of persecution or torture, the stowaway is placed in asylum-only proceedings.  See 8 C.F.R. § 1208.30(g)(2)(iv)(C).  In asylum-only proceedings, the stowaway can apply for asylum, withholding of removal (“restriction on removal”) under INA § 241(b)(3), and protection under the Convention Against Torture.  See subsection (g), below.

(B) Noncitizens subject to expedited removal under INA § 235(b)(1) — If the immigration judge finds that a noncitizen subject to expedited removal under INA § 235(b)(1) has a credible fear of persecution or torture, USCIS may, in its discretion, conduct further proceedings to consider the noncitizen’s eligibility for asylum.  If USCIS does so, it deems the written record of the noncitizen’s positive credible fear finding as an application for asylum.  USCIS then schedules an asylum merits interview for the noncitizen with an asylum officer and, following the interview, decides whether to grant the noncitizen’s asylum application.  If USCIS decides not to grant the asylum application, the noncitizen is placed into streamlined removal proceedings, as described in Chapter 7.6 (Streamlined Removal Proceedings).  See 8 C.F.R. §§ 208.3(a)(2), 208.14(c)(1), 1208.30(f), 1240.17.

 If—subsequent to a credible fear finding—USCIS chooses not to consider the noncitizen’s eligibility for asylum further, then USCIS will place the noncitizen in removal proceedings.  See 8 C.F.R. §§ 1003.42(f), 1208.30(g)(2)(iv)(B).  In removal proceedings, the noncitizen has the same rights, obligations, and opportunities for relief, including the opportunity to apply for asylum, as any other noncitizen in removal proceedings.  See Chapter 4 (Hearings before Immigration Judges).

          (6) If the immigration judge does not find credible fear — If the immigration judge does not find credible fear of persecution or torture, the noncitizen is returned to DHS for removal.  Neither party may appeal an immigration judge’s ruling in a credible fear review.  However, after providing notice to the immigration judge, DHS may reconsider its determination that a noncitizen does not have a credible fear of persecution.  See 8 C.F.R. § 1208.30(g)(2)(iv)(A).

          (e) Reasonable Fear Proceedings — Reasonable fear proceedings involve noncitizens subject to expedited removal under INA § 238(b)  and noncitizens subject to reinstatement of prior orders of removal under INA § 241(a)(5).  See subsections (b)(2), (b)(3), above.  If such a noncitizen expresses a fear of persecution or torture to the Department of Homeland Security (DHS) immigration officer, the noncitizen is interviewed by a DHS asylum officer who evaluates whether the noncitizen has a “reasonable fear of persecution or torture.”  See generally 8 C.F.R. § 1208.31.

          (1) Reasonable fear standard — “Reasonable fear of persecution or torture” means a reasonable possibility that the noncitizen would be persecuted on account of their race, religion, nationality, membership in a particular social group, or political opinion, or a reasonable possibility that the noncitizen would be tortured if returned to the country of removal.  The bars to eligibility for withholding of removal (“restriction on removal”) under INA § 241(b)(3)(B) are not considered.  8 C.F.R. § 1208.31(c).

          (2) If the USCIS asylum officer finds reasonable fear — If the USCIS asylum officer finds that the noncitizen has a reasonable fear of persecution or torture, the noncitizen is placed in withholding-only proceedings before an immigration judge.  See 8 C.F.R. § 208.31(e).  In withholding-only proceedings, the noncitizen can apply for withholding of removal (“restriction on removal”) under INA § 241(b)(3) and protection under the Convention Against Torture.  See subsection (h), below.

          (3) If the USCIS asylum officer does not find reasonable fear — If the USCIS asylum officer finds that the noncitizen does not have a reasonable fear of persecution or torture, the noncitizen may request that an immigration judge review this finding.  See 8 C.F.R. § 208.31(f).

(4) Reasonable fear review by an immigration judge — The reasonable fear review is conducted according to the provisions in (A) through (E), below.  See generally 8 C.F.R. § 1208.31.

          (A) Timing — In the absence of exceptional circumstances, the reasonable fear review is conducted within 10 days after the case is referred to the immigration court. 8 C.F.R. § 1208.31(g).

          (B) Location — If possible, the reasonable fear review is conducted in person.  However, because of the time constraints, the reasonable fear review may be conducted by video or telephone conference.  See Chapter 4.7 (Hearings by Video or Telephone Conference).

          (C) Representation — Subject to the immigration judge’s discretion, the noncitizen may be represented by a practitioner of record during the reasonable fear review at no expense to the government.  8 C.F.R. § 1208.31(c).

          (D) Record of Proceedings — DHS must file the complete record of the USCIS asylum officer’s reasonable fear determination with the immigration court.  This record includes any notes taken by the USCIS asylum officer. 8 C.F.R. § 1208.31(g). The immigration judge creates a record, which is kept separate from the Record of Proceedings in any subsequent immigration court proceeding involving the noncitizen.

          (E) Conduct of hearing — A reasonable fear review hearing is not as comprehensive or in-depth as a withholding of removal hearing in removal proceedings.  Rather, it is a review of the USCIS asylum officer’s decision.  Either party may introduce oral or written statements, and the court provides an interpreter if necessary.  Evidence may be introduced at the discretion of the immigration judge.  The hearing is recorded.  Parties should be mindful that all requests for continuances are subject to the statutory time limits.  See (A), above.

          (5) If the immigration judge finds reasonable fear — If the immigration judge finds that the noncitizen has a reasonable fear of persecution or torture, the noncitizen is placed in withholding-only proceedings.  See 8 C.F.R. § 1208.31(g)(2).  In withholding-only proceedings, the noncitizen can apply for withholding of removal (“A restriction on removal”) under INA § 241(b)(3) and protection under the Convention Against Torture.  See subsection (h).

          (6) If the immigration judge does not find reasonable fear — If the immigration judge does not find a reasonable fear of persecution or torture, the noncitizen is returned to DHS for removal.  There is no appeal from an immigration judge’s ruling in a reasonable fear review.  See 8 C.F.R. § 1208.31(g)(1).  

          (f) Claimed Status Review — If an individual is found by a Department of Homeland Security (DHS) immigration officer to be subject to expedited removal under INA § 235(b)(1), but claims to be a United States citizen or lawful permanent resident, or to have been granted asylum or admitted to the United States as a refugee, the DHS immigration officer will attempt to verify that claim.  If the claim cannot be verified, the individual is allowed to make a statement under oath.  The case is then reviewed by an immigration judge in a “claimed status review.”  See generally 8 C.F.R. § 1235.3(b)(5).

          (1) Timing — Claimed status reviews are scheduled as expeditiously as possible, preferably no later than 7 days after the case was referred to the immigration court and, if possible, within 24 hours.  Claims to United States citizenship may require more time to permit the noncitizen to obtain relevant documentation.

          (2) Location — If possible, the claimed status review is conducted in person.  However, because of the time constraints, the claimed status review may be conducted by video or telephone conference.  See Chapter 4.7 (Hearings by Video or Telephone Conference).

          (3) Representation — Prior to the claimed status review, the individual subject to the review may consult with a person or persons of their choosing.  In the discretion of the immigration judge, persons consulted may be present during the claimed status review.  However, the individual subject to the review is not represented during the review.  Accordingly, persons acting on their behalf are not entitled to make opening statements, call and question witnesses, conduct cross examinations, object to evidence, or make closing arguments.

          (4) Record of Proceedings — The immigration judge creates a Record of Proceedings.  If an individual subject to a claimed status review is later placed in removal proceedings, the Record of Proceedings for the claimed status review is merged with the Record of Proceedings for the removal proceedings.

          (5) Conduct of hearing — Either party may introduce oral or written statements, and an interpreter is provided if necessary.  Though the claimed status review is limited in nature, claims to status, particularly claims to United States citizenship, can be complicated and may require extensive evidence.  Therefore, the immigration judge has the discretion to continue proceedings to allow DHS and the person making the claim to collect and submit evidence.  The hearing is recorded.

          (6) If the immigration judge verifies the claimed status — If the immigration judge determines that the individual subject to the review is a United States citizen or lawful permanent resident, or that they have been granted asylum or refugee status, the expedited removal order is vacated, or cancelled, and the proceedings are terminated.

Unless the immigration judge determines that the person in proceedings is a United States citizen, DHS may elect to place them in removal proceedings.  In removal proceedings, the individual has the same rights, obligations, and opportunities for relief as any other noncitizen in removal proceedings.  See Chapter 4 (Hearings before Immigration Judges).

          (7) If the immigration judge cannot verify the claimed status — If the immigration judge determines that the subject of a claimed status review is not a United States citizen or lawful permanent resident, and that they have not been granted asylee or refugee status, the individual is returned to DHS for removal.  There is no appeal from an immigration judge’s ruling in a claimed status review.

          (g) Asylum-Only Proceedings — Asylum-only proceedings are limited proceedings in which the immigration judge considers applications for asylum, withholding of removal (“restriction on removal”) under INA § 241(b)(3), and protection under the Convention Against Torture.

          (1) Beginning asylum-only proceedings — Asylum-only proceedings are commenced as follows, depending upon the status of the noncitizen.

(A) Stowaways with a credible fear of persecution or torture — When a USCIS asylum officer or an immigration judge finds that a stowaway has a credible fear of persecution or torture, the stowaway’s matter is referred to the immigration court for an asylum-only proceeding.  See 8 C.F.R. §§ 208.30(f)1208.2(c)(1)(ii), 1208.30(g)(2)(iv)(C).

(B) Crewmembers (D visa applicants) — When a noncitizen crewmember expresses a fear of persecution or torture to a DHS immigration officer, they are removed from the vessel and taken into DHS custody.  The crewmember is then provided an Application for Asylum and for Withholding of Removal (Form I-589), which must be completed and returned to DHS within 10 days unless DHS extends the deadline for good cause.  The application is then referred to the immigration court for an asylum-only proceeding.  See 8 C.F.R. §§ 1208.2(c)(1)(i), 1208.5(b)(1)(ii).

(C) Visa waiver applicants and overstays — When a noncitizen who has applied for admission, been admitted, or overstayed their admission under the visa waiver program expresses a fear of persecution or torture to a DHS immigration officer, or applies for asylum with DHS, the matter may be referred to the immigration court for an asylum-only proceeding.  See 8 C.F.R. §§ 1208.2(c)(1)(iii), 1208.2(c)(1)(iv).

(D) Certain cooperating witnesses and informants (S visa applicants) — When a noncitizen who has applied for admission, or been admitted, with an S visa expresses a fear of persecution or torture to a DHS immigration officer, or applies for asylum with DHS, the matter is referred to the immigration court for an asylum-only proceeding.  See 8 C.F.R. § 1208.2(c)(1)(vi).

(E) Persons subject to removal under INA § 235(c) on security grounds — When a DHS immigration officer or an immigration judge suspects that an arriving noncitizen appears removable as described in INA § 235(c), the noncitizen is ordered removed, and the matter is referred to a DHS district director.  A DHS regional director may then order the case referred to an immigration judge for an asylum-only proceeding.  See 8 C.F.R. §§ 1208.2(c)(1)(v), 1235.8.  

          (2) Scope of the proceedings — Asylum-only proceedings are limited to applications for asylum, withholding of removal (“restriction on removal”) under INA § 241(b)(3), and protection under the Convention Against Torture.  Neither the noncitizen nor DHS may raise any other issues, including issues of admissibility, deportability, eligibility for waivers, and eligibility for any other form of relief.  See 8 C.F.R. § 1208.2(c)(3)(i).

          (3) Conduct of the proceedings — Asylum-only proceedings are conducted under the procedures governing removal proceedings.  See 8 C.F.R. § 1208.2(c)(3).  See also Chapter 4 (Hearings before Immigration Judges).

          (4) Appeals — Decisions by immigration judges in asylum-only proceedings may be appealed to the Board of Immigration Appeals.

(h) Withholding-Only Proceedings — Withholding-only proceedings are limited proceedings involving noncitizens subject to expedited removal under INA § 238(b) and noncitizens subject to reinstatement of prior orders of removal under INA § 241(a)(5), who have a reasonable fear of persecution or torture.  See 8 C.F.R. § 1208.2(c)(2).  In withholding-only proceedings, the immigration judge considers applications for withholding of removal (“restriction on removal”) under INA § 241(b)(3) and protection under the Convention Against Torture.

          (1) Beginning withholding-only proceedings — When a DHS asylum officer or immigration judge finds that a noncitizen subject to expedited removal under INA § 238(b) or a noncitizen subject to reinstatement of a prior order of removal under INA § 241(a)(5) has a reasonable fear of persecution or torture, the matter is referred to the immigration court for a withholding-only proceeding.  See 8 C.F.R. §§ 208.31(e), 1208.31(g)(2).

          (2) Scope of the proceedings — Withholding-only proceedings are limited to applications for withholding of removal (“restriction on removal”) under INA § 241(b)(3) and protection under the Convention Against Torture.  Neither the noncitizen nor DHS may raise any other issues, including issues of admissibility, deportability, eligibility for waivers, and eligibility for any other form of relief.  8 C.F.R. § 1208.2(c)(3)(i).

          (3) Conduct of the proceedings — Withholding-only proceedings are conducted under the procedures governing removal proceedings.  See 8 C.F.R. § 1208.2(c)(3).  See also Chapter 4 (Hearings before Immigration Judges).

          (4) Appeals — Decisions by immigration judges in withholding-only proceedings may be appealed to the Board of Immigration