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Expanded Expedited Removal Temporarily Blocked

On Behalf of | Nov 18, 2019 | Immigration |

Expedited removal is the process of removing a non-citizen from the United States without a hearing before an immigration judge. This is contrasted with normal removal proceedings which involve a hearing before an immigration judge to determine first the non-citizen’s removability and then, if removable, any eligibility for relief under the Immigration and Nationality Act (“INA”).


First, expedited removal should not be confused with “reinstatement of removal,” wherein a previously deported respondent is apprehended after returning unlawfully to the United States and removed without a hearing when their prior removal order is reinstated. Expedited removal is also not stipulated removal, where a respondent in removal proceedings agrees to their own removal and waives their right to a hearing. Expedited removal applies only to a certain class of non-citizens discussed below. While its use has historically been limited, the Department of Homeland Security (“DHS”) announced in July 2019 a significant expansion of expedited removal.

The Illegal Immigration Reform and Immigrant Responsibility Act (“IIRIRA”) codified in Section 235(b)(1) of the INA created the expedited removal process. The act was signed by then President Bill Clinton and went into effect April 1, 1997. This new law allowed legacy Immigration and Naturalization Service (“INS”) the power to immediately remove certain non-citizens without further administrative hearing those deemed inadmissible by an immigration officer. At the time of implementation it allowed immediate removal under INA §§ 212(a)(6)(C) and (a)(7), those seeking admission at a port of entry who lacked valid entry documents or were attempting to enter the United States through fraud or misrepresentation. The statute authorized the expedited removal of non-citizens inadmissible on these same grounds who were found inside the United States and had been physically present for less than 2 years.


The application of expedited removal by DHS took a more limited approach than what was actually authorized by the statute, but over time this application has been gradually expanded. Prior to July 2019, expedited removal operated in accordance with a Notice published by DHS in October 2004 titled “Designating Aliens for Expedited Removal.”  This Notice stated the removal of non-citizens through the expedited removal process would be used only for those (1) apprehended at designated ports of entry; (2) arriving in the United States by sea without being admitted or paroled, and who had been physically present for less than two years; or (3) who were found in the United States within 100 miles of the border within 14 days of entering the country who had not been admitted or paroled. In addition, there are some notable exceptions that entitle certain non-citizens protection before being subject to expedited removal.


Those falling under the expedited removal statute but who are seeking asylum in the United States, or expressing a well-founded fear of persecution or torture, are not subject to expedited removal and will instead be scheduled for a credible fear interview with an asylum officer with U.S. Citizenship and Immigration Services (“USCIS”). If they are able to prove credible fear they will be referred to an immigration judge for regular removal proceedings. However, if they fail to prove credible fear they are subject to expedited removal. In addition to asylum seekers, those who claim under oath to be a U.S. citizen, permanent resident, or asylee or refugee will be referred to an immigration judge for an administrative hearing. Unaccompanied minors are also exempt from expedited removal. DHS has also used its discretion in some circumstances to allow certain entrants to “voluntarily return” after being denied entry at a valid port of entry in lieu of expedited removal.


On January 25, 2017, President Trump issued Executive Order 13767 “Border Security and Immigration Enforcement Improvements” directing DHS to expand its use of Expedited Removal to the full statutory intent, broadening the framework that had existed since 2004. On July 24, 2019 a Memorandum was released by the acting director of U.S. Immigration and Customs Enforcement (“ICE”) titled “Implementation of July 2019 Designation of Aliens Subject to Expedited Removal.” According to the memorandum, this expanded expedited removal would begin September 1, 2019 and authorize the removal of non-citizens inadmissible under INA §§212(a)(6)(C) and (a)(7) who are found anywhere in the United States–as opposed to 100 miles from the border within 14 days of entry–and who have been physically present in the country for less than 2 years.


The significance of this change is that any non-citizen stopped by ICE or U.S. Customs and Border Protection (“CBP”) anywhere in the United States will have the burden of proving they are not subject to expedited removal or that they have been physically present in the country for at least 2 years. Essentially, the geographical limitation and time constraints have been erased from the prior application of expedited removal. Asylum-seekers, unaccompanied minors, and those claiming status remain exempt under expanded expedited removal. However, others who entered without inspection and have been in the United States for less than 2 years would be summarily removed from the country despite any U.S. citizen children or other strong ties that may have entitled them to relief. The Office of Information Statistics reported that in 2017, of the roughly 460,000 noncitizens apprehended by DHS, 103,704 noncitizens (or 22.5% of all those apprehended) were removed through expedited removal.


The speed in which this process happens does not provide any real opportunity to compile documentary supporting evidence. For example, criminal defendants who are unable to be released on bond due to an ICE hold will be immediately transferred to immigration custody upon conclusion of their criminal case, and will have to rely on any outside help to assist them. This is likely to result in the erroneous removal of those not subject to expedited removal, and has brought criticism from several civil rights organizations and immigration advocacy groups. Based on a lawsuit filed by several organizations in the U.S. District Court for the District of Columbia, a 126-page order was entered on September 27, 2019 by Judge Ketanji Brown holding that DHS is preliminarily enjoined from enforcing expanded expedited removal as outlined in the July 24, 2019 memorandum, pending the full outcome of the litigation before the court.


The order cited the failure of DHS to follow the “notice and comment” requirement for governmental agencies undertaking rule making, as well as the failure of DHS to take into account preexisting flaws in the expedited removal process before expanding it to a broader category of non-citizens. The ruling states that it is likely the plaintiffs will be able to prove the change was “arbitrary and capricious” and therefore unlawful. Due to this injunction, expanded expedited removal is temporarily on hold, and until this challenge is resolved the application of expedited removal by DHS will revert to its 2004 guidance.