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Expedited Removal

by Hamid R. Kashani, Attorney at Law
Nov 07, 2018

What is expedited removal?

Expedited removal is the process by which the U.S. Department of Homeland Security (DHS) may summarily deport certain nonimmigrants without a hearing before an immigration judge or an appeal before the Board of Immigration Appeals (BIA).

Who is subject to expedited removal?

Two groups of nonimmigrants are subject to expedited removal:

  • Nonimmigrants arriving at a port of entry who are inadmissible because they either have misrepresented themselves as U.S. citizens or lack required documents.
  • Nonimmigrants apprehended at a place other than a port of entry, who have not been admitted or paroled into United States and cannot show that they have been continuously and physically present in the United States for at least two (2) years.
     
    The Department of Homeland Security, however, has limited its activities to apprehensions within 100 miles of international land borders and within 14 days of arrival into the United States.  Note that DHS may change its own policy at any time and use the more stringent criteria prescribed by the INA. 

There are exceptions. The expedited removal does not apply to permanent residents or those already admitted as asylees or refugees, who attest to their status under penalties for perjury.  In addition, the expedited removal provisions do not apply to “a native or citizen of a country in the Western Hemisphere with whose government the United States does not have full diplomatic relations and who arrives by aircraft at a port of entry.”

What happens in expedited removal?

Expedited removal does not have the safeguards associated with removal proceedings.  In expedited removal, an immigration officer (usually a Customs and Border Patrol officer) questions the nonimmigrants and makes a decision regarding their admissibility to the United States.  The officer can summarily issue an order of removal and the nonimmigrant is often removed (deported) the same day.

What immigration remedies are available in expedited Removal?

In expedited removal, the only available remedy is for people who indicate a desire to apply for asylum or express fear of persecution if deported. Those whose fear is determined to be credible are placed in a regular removal proceeding, where they can apply for asylum as well as other remedies available in a regular removal proceeding.  Otherwise, they will be deported summarily.

How is “credible fear” evaluated in expedited removal?

A person, who claims fear of persecution will be referred to as an asylum officer, who would conduct a “credible fear interview” to determine whether the applicant is presenting a credible claim.  If the asylum officer finds the claim credible, the applicant will be moved out of expedited removal and will be placed in a regular removal proceeding, where he or she can pursue asylum, as well as other relief.

If the asylum officer finds the applicant's claim of fear of persecution not credible, the officer must provide a written record of his or her findings and determination. Thereafter, upon request, the applicant will be promptly presented to an immigration judge. If the immigration judge finds the claim credible, the applicant will be moved out of expedited removal and will be placed in a regular removal proceeding.

If the immigration judge finds the applicant's claim of fear not credible, the applicant will be remanded to the Department of Homeland Security to enforce the removal order.  At that point, upon request, an asylum officer may reconsider the matter and re-evaluate the applicant's fear of persecution. Where the applicant makes a reasonable claim that compelling new information exists, the asylum office may grant the applicant a second “credible fear interview.”

Are undocumented immigrants in expedited removal entitled to have an attorney?

The short answer is no. It is settled law that those who present themselves at a port of entry, and have not yet been admitted into the country, do not have the right to counsel.

This question, regarding the undocumented immigrants, who are apprehended inside the United States, has not been fully resolved. One court of appeals has held that those who are apprehended inside the United States and placed in expedited removal do not have the right to an attorney in expedited removal.

Are nonimmigrants in expedited removal eligible to be released on bond?

No. Individuals in expedited removal may not be released on bond.   They may be paroled only for a “medical emergency” or for a “legitimate law enforcement objective.”

Is judicial review or appeal available to those found removable in expedited removal?

Judicial review and appeals of orders of expedited removal are extremely limited.  Applicants for admission to the United States, who are subjected to expedited removal, may request federal court's habeas corpus review of the order, but that review will be limited to the following issues:

  • Whether the applicant is an alien;
  • Whether the applicant was ordered removed under INA § 235(b); or
  • Whether the applicant can prove, by a preponderance of the evidence, that he or she is a permanent resident, asylee, or refugee whose status has been terminated.

If the applicant prevails, the DHS shall place the applicant in a regular removal proceeding before an immigration judge.  Otherwise, within 30 days of an adverse decision by the federal district court, the applicant may appeal to the federal court of appeals and subsequently to the United States Supreme Court. The appellate courts are required to place those appeals on an expedited calendar.

Can nonimmigrants in expedited removal withdraw their application for admission to the United States and simply leave?

Nonimmigrants do not have the right to withdraw their application for admission to the United States but may request an opportunity to do so.  The immigration officers may also offer that opportunity to nonimmigrants found to be inadmissible.

Granting permission to withdraw an application for admission is within the discretion of immigration officials. In deciding whether to grant permission to withdraw, the immigration officers will consider the following facts:

  1. The seriousness of the immigration violation;
  2. Previous findings of inadmissibility against the alien;
  3. Intent on the part of the alien to violate the law;
  4. Ability to easily overcome the ground of inadmissibility (i.e., lack of documents);
  5. Age or poor health of the alien; and
  6. Other humanitarian or public interest considerations.

Customs & Border Patrol, Inspector's Field Manual § 17.2.

Nonimmigrants, whose request to withdraw their application for admission is granted, must immediately depart from the United States.

What are the consequences of expedited removal?

A non-citizen who has been removed pursuant to an expedited removal would be inadmissible for a number of years, depending on the circumstances. Typically, the bar would be for five (5) years.

Related Topics:

Undocumented Immigrants

Asylum

U.S. Immigration and Customs Enforcement (ICE)

Removal Proceedings

Grounds for Removal

Prosecutorial Discretion

 

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