What steps did the government take to expand expedited removal?
The Department of Homeland Security (DHS) published a notice in the Federal Register on July 23 that dramatically expands the ability of Immigration and Customs Enforcement (ICE) and Customs and Border Protection (CBP) officers to remove certain noncitizens without ever seeing an immigration judge. Starting today, ICE and CBP agents will be permitted to ask anyone, anywhere in the United States to prove that they are not subject to expedited removal.
What is expedited removal?
Expedited removal is a process authorized by Immigration and Nationality Act (INA) § 235(b)(1) that allows DHS officers to summarily remove certain noncitizens from the United States without ever seeing an immigration judge. Expedited removal applies to certain individuals who are inadmissible under INA § 212(a)(6)(C) for making misrepresentations or § 212(a)(7) for not having proper entry documents. Until July 23, DHS had only issued expedited removal orders to noncitizens whom DHS encountered within 100 miles of the border and within 14 days of their entry.
Under the expedited removal process, if the noncitizen claims a fear of return to their country, the DHS officer must refer them for a Credible Fear Interview (CFI) with an asylum officer. If the noncitizen establishes a significant possibility of winning an asylum claim, they are placed into removal proceedings before an immigration judge. If the asylum officer does not find that the individual has a credible fear, the person can ask an immigration judge to review the asylum officer’s determination. Courts have generally not recognized a right of appeal from the immigration judge’s review, and the noncitizen in this posture can be removed without a full hearing on their asylum claim.
Are there exceptions to expedited removal?
People in the following categories should not be subject to expedited removal:
- United States citizens, lawful permanent residents, asylees and refugees
- Unaccompanied children
- Any noncitizen who has been admitted or paroled
- Any noncitizen who is not inadmissible for having entered the United States without proper entry documents or through misrepresentation under INA § 212(a)(6)(C) or 212(a)(7)
- Noncitizens who ARE inadmissible under INA § 212(a)(6)(C) or 212(a)(7), who have been physically present in the United States continuously for the two-year period immediately prior to the date of the inadmissibility determination by the DHS official
Why is the expansion announced in the notice so significant?
The U.S. government expanded expedited removal to cover the entire United States and to expand the timeframe to those otherwise subject to expedited removal who cannot prove they have been in the United States for at least two years. This means that any person who is stopped by ICE or CBP, anywhere in the country, has the burden of proving to the U.S. immigration official that they are not subject to expedited removal or that they have been physically present in the United States for two years, in order to avoid receiving an expedited removal order. For example, noncitizens lacking lawful status who entered without inspection can be legally removed without ever seeing an immigration judge if they have been continuously physically present for fewer than two years, even if they have U.S. citizen children or other strong ties to the United States.
Does the notice apply to visa overstays or others who have violated the terms of their visa?
No, the expanded expedited removal authorized in the notice only applies to noncitizens who have not been admitted or paroled following inspection by an immigration officer.
Does the expedited removal expansion apply to unaccompanied children?
No, unaccompanied children are exempt from the expedited removal provision of the INA.
Is DHS required to subject noncitizens to expedited removal under this expansion?
No. The notice says that DHS officials retain discretion to allow noncitizens: “to return voluntarily, withdraw their applications for admission, or be placed in full removal proceedings.” The notice gives as examples of when discretion may be appropriate, “aliens with serious medical conditions and aliens who have substantial connections to the United States.” The notice states that ICE will receive implementation guidance on the expanded use of expedited removal.
What if the U.S. official makes a mistake?
Under the notice, a DHS official determines whether someone is subject to expedited removal. The decision is only subject to review if the individual claims, under oath and subject to penalties of perjury, to be a U.S. citizen, lawful permanent resident, refugee, or asylee. Determining an individual’s immigration status, or whether they were previously admitted or paroled, can be a complex process, and having these determinations made by front-line officers rather than trained immigration judges could lead to erroneous decisions and improper removals. Likewise, noncitizens who have been in the United States for more than two years may not have access to the documentation they need to prove to a DHS official that they should not be subject to expedited removal.
What precautions should noncitizens take to avoid being subject to expedited removal?
Noncitizens should consider carrying proof that they are not subject to expedited removal or that DHS should exercise prosecutorial discretion. This proof could include:
- Proof of U.S. citizenship (a copy of a naturalization certificate, U.S. passport, or U.S birth certificate).
- Proof of lawful permanent residence, refugee status, or asylum status in the United States.
- Proof of having been lawfully admitted or paroled into the United States (such as a copy of an admission stamp in a passport; an I-94 card or print out).
- For those who entered without inspection,
- Proof of two years’ residence in the United States such as:
- A lease.
- Bills (phone bills, electricity bills, medical bills).
- School records (with parents’ name(s) if applicable).
- If the noncitizen entered without inspection and has been here fewer than two years, proof that could merit a favorable exercise of DHS prosecutorial discretion such as:
- Serious medical conditions.
- Substantial ties to the United States (such as, for example, a U.S. citizen child).
- A pending application with USCIS for lawful status.
- An intent to apply for asylum.
- Proof of two years’ residence in the United States such as:
When did expanded expedited removal take effect?
The expansion took effect immediately — July 23, 2019. The administration claims that public notice and comment “would be impracticable, unnecessary, and contrary to the public interest.” Further, because the government asserts the expansion is authorized by the INA, it has issued this dramatic change in policy via a notice. It is, however, accepting comments from the public for 60 days to “maintain a dialogue with interested parties.”
What authority does DHS claim for this notice?
DHS cites INA § 235(b)(1)(A)(iii) as authority for the expansion of expedited removal. DHS also cites to an executive order issued by the president on January 25, 2017.
Has anyone sued to stop the expansion of expedited removal?