EXPEDITED REMOVAL: WHAT HAS CHANGED SINCE EXECUTIVE ORDER NO. 13767, BORDER SECURITY AND IMMIGRATION ENFORCEMENT IMPROVEMENTS (ISSUED ON JANUARY 25, 2017)
What is expedited removal, and who does it apply to now?
Expedited removal is a procedure that allows a Department of Homeland Security (DHS) official to summarily remove a noncitizen without a hearing before an immigration judge or review by the Board of Immigration Appeals (BIA).
Application At Border/Port of Entry
Under the Immigration and Nationality Act (INA), any individual who arrives at a port of entry in the United States and who is inadmissible under either 8 U.S.C. § 1182(a)(6)(C) (misrepresentations and false claims to U.S. citizenship) or § 1182(a)(7) (lack of valid entry documents), is subject to expedited removal.
Application At Border/Port of Entry
The Secretary of DHS has the authority to apply expedited removal to any individual apprehended at a place other than a port of entry, who is
- inadmissible under either of those grounds (misrepresentations and false claims to U.S. citizenship OR lack of valid entry documents),
- has not been admitted or paroled, and
- cannot show that he or she has been continuously present in the United States for two or more years.
8 U.S.C. §§ 1225(b)(1)(A)(i), (iii).
To date, DHS has limited its application of expedited removal to noncitizens inadmissible for one of the above-stated grounds who either arrive at a port of entry or are apprehended within 14 days of their arrival and within 100 miles of an international land border. While the Executive Order instructs the Secretary of DHS to take action to implement the expansion, to date DHS has not yet implemented any expansion of expedited removal. In a February 20, 2017 memorandum, DHS Secretary John Kelly stated that he would publish a notice in the Federal Register designating who would be subject to expedited removal.
After someone is arrested by DHS, how can she show that she must receive an immigration court hearing, rather than be subject to expedited removal?
It is too early to know how DHS will implement an expansion of expedited removal. As noted above, DHS has discretion to elect between issuing an expedited removal order, allowing withdrawal of an application for admission pursuant to 8 U.S.C. § 1225(a)(4), or issuing a Notice to Appear and placing the individual in removal proceedings before an immigration judge. Requesting that DHS exercise its prosecutorial discretion to either allow withdrawal of an application for admission or issue a Notice to Appear is advisable. Furthermore, the INA provides that an individual may be subject to expedited removal only if she or he “has not affirmatively shown, to the satisfaction of an immigration officer, that [she or he] has been physically present in the United States continuously for the 2-year period immediately prior to the date of the determination of inadmissibility.” 8 U.S.C. § 1225(b)(1)(A)(iii)(II); see also 8 C.F.R. § 235.3(b)(1)(ii). Therefore, DHS officers are obligated to put an individual into immigration court proceedings, rather than expedited removal, if that person provides proof that she or he has been present in the United States for two years (or a lesser amount of time depending upon the scope of any expansion of expedited removal). 8 However, there are pros and cons to carrying documents demonstrating length of residency.
Please be aware there are potential risks associated with carrying documents, such as:
- To the extent that the documents may contain proof of the individual’s alienage or lack of lawful immigration status, DHS could then use that proof against the individual, or others mentioned in the documents, in removal proceedings (or, potentially, criminal proceedings).
- Even if the documents do not contain such proof on their face, immigration officials may treat individuals who choose to carry such documents as implicitly conceding their undocumented status, regardless of whether it is lawful to do so.
- Depending on their content, documents turned over to DHS that contain proof than an individual worked without authorization potentially could be used in criminal prosecutions against the employer or even the individual if, for example, the documents contained proof that he or she used a false social security number.
- To the extent that individuals carry the original versions of documents proving their length of presence, they risk losing those documents, including to DHS officers who may fail to return them.
If a person chooses to carry documents establishing proof of presence in the United States, what types of documents should they carry?
In other contexts, to prove length of residency and/or presence in the United States, DHS and the immigration courts previously have relied upon photocopies of documents from individuals’ schools, places of work, utility bills, churches, children’s birth certificates proving child born in USA, and banks, among others. However, at this time, DHS has not indicated what types of documents the agency would consider sufficient to establish length of presence or whether providing photocopies of documents that establish presence would be acceptable. If you or someone you know is detained, be sure to have a person to call and get a lawyer and be able to show two years of continuous presence in US.
While this policy only applies to individuals who entered the US without inspection or parole, we recommend that all our clients carry on their person copies of documents evidencing status such as valid I-94 (if you recently entered USA on a visa you can download yours at https:https://i94.cbp.dhs.gov/), USCIS Receipt (if you have pending change of status application), or other proof of status (EAD, Greencard, etc). Also, do not drive without a valid license!