Are people in removal proceedings lawfully present?
A. AILA argues that they are, but so far the INS has not agreed. In fact, the June 17 Virtue Memorandum says that people with pending applications for cancellation of removal, for example, are not in a period of authorized stay. AILA argues that the time during which people are in removal proceedings should be considered a period of stay authorized by the Attorney General. We submit, in sum, that the INA and regulations authorize removal hearings, require respondents to appear for those hearings, and heavily penalize them for not appearing. Therefore, pursuit of removal proceedings is, at the least, “authorized” by the Attorney General. Further, if people in proceedings are accruing unlawful presence time, they will be forced to abandon claims that they are not removable and to sacrifice applications for relief from removal. This would raise constitutional questions about the denial of due process under the INA.
