News & Insights

Key Differences Between Deportation and Exclusion Proceedings

Who They Apply To

• Deportation Proceedings: Apply to individuals already inside the U.S. who are alleged to have violated immigration laws.
• Exclusion Proceedings: Apply to individuals outside the U.S. or at a port of entry seeking admission.

Location of Proceedings

• Deportation: Typically held near the individual’s residence in the U.S.
• Exclusion: Usually conducted at or near the port of entry.

Notice Requirements

• Deportation: The government must provide 7 days’ notice of the charges.
• Exclusion: No advance notice is required. The Board of Immigration Appeals (BIA) has held that as long as the individual is informed of the issues during the hearing and given a reasonable opportunity to respond, no further notice is necessary (In re Salazar, 17 I&N Dec. 167 (BIA 1979)).

Appeals Process

• Deportation: Individuals can appeal directly to the U.S. Court of Appeals.
• Exclusion: Appeals can only be made through a writ of habeas corpus in federal court.

Substantive Rights

Deportation:

• The ability to designate the country of deportation.
• The option for voluntary departure, avoiding the stigma of deportation.
• Eligibility to seek relief such as suspension of deportation or cancellation of removal.

Exclusion:

• These rights are generally unavailable.

Legal Foundations

Immigration and Nationality Act (INA)

• Section 240: Governs deportation proceedings.
• Section 235: Covers exclusion and expedited removal processes.

Administrative Regulations

• Detailed in the Code of Federal Regulations (CFR), Title 8, under DHS and Department of Justice regulations.

Case Law

• In re Salazar, 17 I&N Dec. 167 (BIA 1979): Clarified the notice requirements for exclusion hearings.
• Shaughnessy v. Mezei, 345 U.S. 206 (1953): Highlighted the limited procedural rights of individuals in exclusion proceedings.

Practical Implications for Immigrants

• Deportation Proceedings: These provide more safeguards and due process protections, making it easier for individuals already in the U.S. to challenge removal orders or seek alternative remedies.
• Exclusion Proceedings: These are typically faster and provide fewer procedural protections, making it more challenging for individuals to argue their case, particularly if they are at a port of entry.

Authoritative Sources

• Immigration and Nationality Act (INA)
• Board of Immigration Appeals Decisions
• Code of Federal Regulations (CFR) – Title 8