See, e.g., 8 U.S.C. § 1229a(c)(4). Generally, an immigration judge’s decision may be appealed to EOIR’s Board of Immigration Appeals and then, as authorized by statute, to federal court.

8 U.S.C. § 1252(d). It would be extraordinary and unwarranted for the Court to preempt a decision by the Immigration Judge as to Ahmed’s admissibility.24 23 We also note that a LPR does not have an unqualified right to a hearing under 8 U.S.C. § 1229a prior to being denied admission into the U.S. as plaintiff asserts. See United States ex rel.

42(c) and (d). Case 2:85-cv-04544-DMG-AGR Document 184 Filed 08/06/15 Page 28 of 60 Page ID #:2796 22 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 individual has been found to have a credible fear of persecution or torture and placed into standard removal proceedings, the authority for his or her detention normally shifts to the discretionary detention provisions of 8 U.S.C. § 1226(a).19 See Matter of X-K-, 23 I. & N. Dec. 731, 735-36 (BIA 2005) (holding that current Department of Justice regulations do not bar an immigration judge from making custody re- determinations of a person subject to expedited removal if he or she is determined to have a credible fear and placed in removal proceedings under 8 U.S.C. § 1229a, and if a bond is not otherwise precluded by 8 C.F.R. § 1003.19(h)(2)(i)).

Notably, however, the law requires that an alien in removal proceedings “shall have a reasonable opportunity to examine” any evidence—including an assessment to refer—that is offered against him or her in removal proceedings. See 8 U.S.C. § 1229a(b)(4)(B). In addition, Plaintiff Catholic Charities brings two claims of its own.

The IJ in his or her discretion may also allow the “consulted” person to be present during the review. If either the asylum officer or the IJ determines that the alien has established a credible fear of persecution or torture, expedited removal proceedings are terminated and the alien is granted a full hearing in non-expedited removal proceedings under 8 U.S.C. § 1229a. See 8 C.F.R. § 208.

See 8 U.S.C. §§ 1252(a)(5), (b)(9) & (d). Plaintiff was not entitled to appointed counsel, 8 U.S.C. § 1229a(b)(4)(A), and had to defend himself pro se while being allegedly mandatorily detained at a rural detention facility in upstate New York. The fact that Defendants’ case crumbled in the months after the Second Circuit appointed Mr. Watson counsel is probative evidence that the INA’s remedial scheme is wholly inadequate to address the rights of a U.S. citizen wrongfully subject to arrest, detention, and removal proceedings by Defendants.

42(d). Each Plaintiff has now been referred for a non- expedited removal proceeding under 8 U.S.C. § 1229a. See 8 C.F.R. § 208.

at 1690, and are not guaranteed legal representation (and are typically unrepresented). 8 U.S.C. § 1229a(b)(4)(A); 8 C.F.R. § 1240.3; Hon. Dana Leigh Marks & Hon. Denise Noonan Slavin, A View Through The 10 An immigration detainer "is a notice that [the Department of Homeland Security] issues to federal, state and local law enforcement agencies" to inform the agencies that "ICE intends to assume custody of an individual in the [agency's] custody."

[“[T]he structure of the immigration statutes makesit impossible for the State to determine which aliens are entitled to residence, and which eventually will be deported”’); id. at 226 (maj. opn. of Brennan, J.) [“In light of the discretionary federal powerto grantrelief from deportation, a State cannotrealistically determine that any particular undocumentedchild will in fact be deported until after deportation proceedings have been completed.”].) Notably, even an immigration judge’s issuance of a removal orderis not a conclusive determination regarding whether a noncitizen may remain, because Congress enabled individuals to seek reconsideration, reopening, and administrative and judicial review of their removal orders. (See 8 U.S.C. §§ 1229a(c)(6), (7) [motions to reconsider and reopen removal proceedings], 1252 [judicial review]; 8 C.F.R. §§ 1003.1(b) [administrative appeal] and 1003.2 [motions to reopen administrative appeal]; see generally Dada v. Mukasey, (2008) 554 U.S. 1, 18 [describing motions to reopen as an “important safeguard”of the noncitizen’s rights].) Further, some individuals with final removal orders who have exhaustedtheir appeals maystill be permitted to remain and work in the United States, such as personsreleased from detention because their removal is not reasonably 12 foreseeable.

Section 5 of SB 1070 contains restrictions related to the transportation of aliens “in furtherance of the illegal presence” of the alien in the United States. Based upon its ordinary and common meaning, the phrase “in furtherance of the illegal presence” 44 See also 8 U.S.C. § 1229a(e)(2) (defining “removable”). As SB 1070 makes clear, the federal government – not Arizona’s law enforcement officers – determines immigration violations and whether an alien is “removable.”