What is administrative removal under INA § 238(b), and can it be challenged?

Removal by paperwork

INA § 238(b) authorizes DHS to remove certain people without ever setting foot in immigration court. The targets are non-citizens who are not lawful permanent residents and who have been convicted of an aggravated felony as defined in INA § 101(a)(43).

The process runs on forms. DHS serves a Form I-851, Notice of Intent to Issue a Final Administrative Removal Order, stating the charge and the conviction it rests on. The person has 10 days (13 if served by mail) to respond — to concede, to contest the allegations, or to request withholding-based protection. If the response does not defeat the charge, a DHS officer — not a judge — signs the Final Administrative Removal Order (Form I-851A). The officer who decides works for the same agency that brought the charge.

The two most common defects

Wrong classification. "Aggravated felony" is a term of art, and DHS gets it wrong with real frequency. Whether a state conviction actually matches the federal definition is analyzed under the categorical approach — a technical comparison of statutory elements that officers completing forms routinely miscall. A conviction labeled a felony by a state may not be an aggravated felony under the INA at all.

Wrong target. The procedure only applies to non-LPRs. It has been mistakenly used against lawful permanent residents and even citizens with derivative citizenship claims the person did not know they had.

Where the petition for review comes in

The I-851A is a final order of removal, and the exclusive path to a judge is a petition for review filed in the court of appeals within 30 days. There is no BIA appeal to exhaust — none exists in this process — so the petition goes straight from the DHS order to the circuit court. Legal questions, including whether the conviction is actually an aggravated felony, are reviewed de novo, and this is precisely the kind of question courts of appeals reverse on.

As with reinstatement, expressing fear of return triggers a reasonable-fear referral and possible withholding-only proceedings, which produce their own reviewable order on its own 30-day clock.

Why speed matters more here than anywhere

The 10-day response window on the I-851 is one of the shortest deadlines in immigration law, and what is written in that response shapes the record the court of appeals will later see. A § 238(b) notice should be treated as a five-alarm document from the moment it is served.