An order of removal is the legal instrument that authorizes the government to remove a person from the United States. There is more than one kind, and the kind matters: it decides whether there was a hearing, whether it can be appealed or reopened, and how long the person is barred from returning.
Quick Facts
- Usual route: removal proceedings before an immigration judge, 8 U.S.C. § 1229a
- Appeal: to the Board of Immigration Appeals within 30 days
- Court review: petition for review in a court of appeals within 30 days of the final order
- Bars on return: 5, 10 or 20 years, or permanent, under 8 U.S.C. § 1182(a)(9)(A)
The kinds of removal orders
- Immigration judge order. Entered at the end of removal proceedings under 8 U.S.C. § 1229a, which begin with a Notice to Appear.
- In absentia order. Entered when a person does not appear for a hearing after written notice, if the government proves removability (8 U.S.C. § 1229a(b)(5)).
- Stipulated order. Entered without a hearing when the person agrees to removal (8 U.S.C. § 1229a(d)).
- Expedited removal order. Issued by an immigration officer, without a hearing before a judge, for certain people who arrive without valid documents or entered recently without inspection (8 U.S.C. § 1225(b)(1)).
- Reinstated order. A prior order revived by DHS when a person returns unlawfully after removal (8 U.S.C. § 1231(a)(5)).
- Administrative order. Issued by DHS for certain people who are not permanent residents and have aggravated-felony convictions (8 U.S.C. § 1228(b)).
Voluntary departure is the alternative to a removal order: permission to leave at one’s own expense within a set period, which avoids some of the consequences of removal if the person leaves on time (8 U.S.C. § 1229c).
When an order becomes final
An immigration judge’s order becomes final when the Board of Immigration Appeals dismisses the appeal, when appeal is waived, or when the 30-day period to appeal expires (8 C.F.R. §§ 1003.38(b), 1241.1). Finality matters because it starts the 30-day period for a petition for review in the court of appeals (8 U.S.C. § 1252(b)(1)) and the 90-day period for a motion to reopen.
Waiting in immigration court
Removal cases can take years to reach a final order, because the immigration courts carry very large dockets. Delays at the Board of Immigration Appeals can be similar. Whether a federal court can speed up a case pending before the immigration courts is a narrower question than for USCIS applications, because the statute channels most review of removal matters to the courts of appeals. That is covered in delays at the immigration courts and the Board.
After the order: detention and bars on return
Once an order is final, the government generally has 90 days to carry out the removal and detains the person during that period (8 U.S.C. § 1231(a)(1)–(2)). Detention after that period is limited: six months is presumptively reasonable, after which a person whose removal is not reasonably foreseeable can challenge continued detention in habeas (Zadvydas v. Davis, 533 U.S. 678 (2001)).
A removal order also bars return. Depending on the kind of order and the person’s history, the bar lasts 5, 10 or 20 years, or is permanent for people convicted of an aggravated felony (8 U.S.C. § 1182(a)(9)(A)). Permission to reapply for admission can be requested on Form I-212.