Expedited Removal

expedited removal

 

Introduction to Expedited Removal

Under certain circumstances, an alien found inadmissible at the border may be subject to expedited removal. If an alien is subject to expedited removal, he or she will be removed without a hearing before an immigration judge. There are certain exceptions for aliens who would otherwise be subject to expedited removal if not for meeting the criteria for an exception. This article will discuss the grounds for expedited removal, the expedited removal process, and the circumstances in which an alien who would otherwise be subject to expedited removal may qualify for an exception.

Expedited Removal: Statutes and Regulations

Pursuant to section 235(b)(1)(A)(i) of the Immigration and Nationality Act (INA), an alien who is arriving in the United States under the following conditions will be subject to removal without further hearing (expedited removal):

The alien is arriving at the border without having been admitted or paroled into the United States and has not affirmatively demonstrated to the satisfaction of the immigration officer that he or she was continuously physically present in the United States for the 2-year period immediately prior to the determination of inadmissibility [INA § 235(b)(a)(A)(iii)(II)]; and
the alien is found to be inadmissible for grounds of misrepresenting a material fact in order to obtain an immigration benefit [INA § 212(a)(6)(C)(i)] or for falsely claiming citizenship [INA § 212(a)(6)(C)(ii)];1 or
the alien is found to be inadmissible for grounds of not being in possession of a valid document for admission or parole to the United States or[INA § 212(a)(7)];
Cubans arriving in the United States not subject to these expedited removal provisions pursuant to INA § 235(b)(1)(F).

Persons arriving by sea (except for Cubans) who cannot demonstrate 2 years of continuous physical presence prior to the determination of inadmissibility will be subject to expedited removal.2

In certain circumstances, aliens who are not “arriving aliens” may also be subject to expedited removal. Aliens who are found within 100 miles of a U.S. border, have not been admitted or paroled, and cannot affirmatively demonstrate continuous physical presence in the United States for the previous 14 days will be subject to expedited removal.3

There are certain exceptions that exist where an alien who would otherwise be subject to expedited removal under INA § 212(b)(1)(A)(i) will not be:

Arriving aliens who can establish a credible fear of persecution shall be referred for further consideration of eligibility for asylum [INA § 235(b)(1)(B)(ii)].
Persons paroled into the United States prior to April 1, 1997;4
Persons reentering the United States under a grant of advance parole [not considered “arriving aliens” for purpose of expedited removal];5
Lawful permanent residents (LPRs), U.S. citizens (USCs), and persons who have been granted asylee or refugee status [8 C.F.R. § 235.3(b)(5)];
Minors who have not engaged in activity that would qualify as an “aggravated felony” in the presence of a Department of Homeland Security (DHS) officer, has not been convicted or adjudicated delinquent of an aggravated felony within the United States or abroad, or has not been previously removed, excluded, or deported from the United States;6
Persons applying for admission under the Visa Waiver Program (VWP) who seek asylum;7
DHS exercises prosecutorial discretion to instead place the alien in regular removal proceedings.8

A person who attests to being a USC, LPR, refugee, or asylee is entitled to appear before an immigration judge if the immigration officer does not recognize the claim and issues an expedited removal order.9 However, even if the immigration judge rules favorably for the applicant, he or she may still be subject to regular removal proceedings unless he or she is a USC.10

Similar Provisions for Stowaways

Stowaways are inadmissible to the United States under INA § 212(b)(6)(D). Pursuant to INA § 235(a)(2), stowaways are similarly subject to removal and ineligible to apply for admission. However, similarly to aliens described in the first section, stowaways may indicate a desire to apply for asylum and attempt to establish a credible fear of persecution under INA § 235(b)(1)(B)(ii).

Expedited Removal Detention

Persons subject to expedited removal will be detained throughout the proceedings. However, DHS may parole the alien on account of a serious medical condition; if the alien is medically certified as pregnant; if the alien is a juvenile and can be released to a relative who is not in detention, a relative who is in detention, or a non-relative who arrived concurrently with the minor and is in detention (to be determined on a case-by-case basis); if the alien is a witness in an investigation or prosecution; or if it is determined that the continued detention of the alien is not in the national interest [8 C.F.R. § 212.5(b)]. In order to be paroled, the alien must demonstrate, to the satisfaction of immigration officials, that he or she will appear at all hearings and depart the United States if or when required to do so [8 C.F.R. § 212.5(d)].

Exception to Expedited Removal: Establishing a Credible Fear of Persecution

An alien who would otherwise be subject immediately to expedited removal who indicates an intention to apply for asylum or a fear of persecution shall be referred for an asylum interview [INA § 235(b)(1)(A)(ii)].11 Prior to the interview, the alien is entitled by statute to consult with a person or persons of his or her choosing (including immigration counsel) prior to the interview [INA § 235(b)(B)(iii)(IV)], and may have said person present at the interview [8 C.F.R. § 208.30(c)(4)]. However, this must be done at no cost to the government and may not unreasonably delay the interview [Id.]. Pursuant to 8 C.F.R. §§ 208.30(b)(1)-(2), a spouse or child of the alien who arrived concurrently may be included in the credible fear interview.

In order to support “credible fear,” the alien must, to the satisfaction of the interviewing officer or immigration judge, that “there is a significant possibility that the alien could establish eligibility for asylum” through the asylum application process.12 This credible fear may be fear of persecution or torture [8 C.F.R. § 208.30(e)(2)-(4)].

If the alien is not a stowaway and establishes credible fear of persecution or torture in the interview, he or she will be issued a Form I-862, Notice to Appear, and have full consideration his or her asylum and withholding of removal claim under INA § 240 proceedings [8 C.F.R. § 208.30(f)]. If the alien is a stowaway who demonstrated the same, he or she will be issued a Form I-863, Notice of Referral to Immigration Judge, for full consideration of the asylum or withholding of removal claim under INA § 208(c) [Id.].

If the alien establishes credible fear, but is subject to a bar to applying for asylum, he or she will be nevertheless be placed in INA § 240 proceedings (if not a stowaway) or INA § 208(c) proceedings (if a stowaway) for a full consideration of the claims. However, if the alien is subject to the bar to applying for asylum contained in INA § 208(a)(2)(A) [safe third country bar] on account of having first arrived in Canada, and is not eligible for an exception, the alien will be removed to Canada where he or she may pursue asylum claims [follow this link to learn more about this specific bar to applying for asylum].

Under old administrative guidance, persons who established credible fear were detained throughout the credible fear determination and asylum application process.13 However, under current policy, an alien who establishes credible fear will be interviewed within 7 days, and then within 7 days of the interview, will be eligible for parole provided that he or she can:

1. establish identity;
2. demonstrate that he or she is not a flight risk;
3. demonstrate that he or she is not a danger to the community; and
4. satisfy any discretionary considerations that may arise.14

Furthermore, aliens who demonstrate credible fear and are not stowaways will also be eligible for a bond hearing in an INA § 240 proceeding provided that they are not “arriving aliens” or otherwise ineligible [ineligible pursuant to 8 C.F.R. § 1003.19(h)(2)(i)].15 Aliens who cannot establish eligibility for parole after establishing credible fear may still apply for asylum while in detention.

If the alien fails to demonstrate credible fear in the interview, he or she will have the opportunity to request that an immigration judge reviews the negative decision by filing a Form I-869, Record of Negative Credible Fear Finding and Request for Review by Immigration Judge [8 C.F.R. §208.30(g)]. If the alien refuses to make a request, the decision will be reviewed automatically [Id.]. The review may not take place later than seven days after the request [INA § 235(b)(iii)(IV)]. The alien will be detained in advance of the hearing before the immigration judge [8 C.F.R. § 208.30(g)(i)]. If the alien declines review, or if the immigration judge ultimately upholds the decision from the interview, the alien will be subject to expedited removal.

Expedited Removal Advice

If an alien receives an expedited removal order, or is a stowaway subject to similar provisions, and believes that he or she has a valid credible fear claim, it is imperative that the alien contact an experienced immigration attorney immediately. An experienced immigration attorney will be able to evaluate the alien's situation quickly, and if applicable, help prepare the alien for the credible fear interview in a short amount of time. Provided that the alien establishes credible fear, an experienced immigration attorney will be an indispensable asset in the complicated asylum application process. Furthermore, an immigration attorney may help the alien provide evidence that supports parole for the duration of the asylum application process.

It is important to note that there is no guaranteed remedy to expedited removal. A person subject to an expedited removal order, provided that he or she is not a USC, LPR, asylee, or refugee who may not be subject to expedited removal on account of status, will have to present compelling evidence in a credible fear interview in order to not be subject to expedited removal.

Aliens who present for admission and are subsequently found to be subject to expedited removal, and who have no avenue for resisting expedited removal, should consider requesting to withdraw the application for admission in hope being permitted to depart the United States immediately rather than being removed [pursuant to INA § 235(a)(4)].

_______________________

  1. There are limited exceptions to the ground of inadmissibility for falsely claiming citizenship.
  2. I. Kurzban, Kurzban's Immigration Law Sourcebook: A Comprehensive Outline and Reference Tool (AILA 14th Ed. 2014) 180, citing 67 FR 68924-26 (Nov. 13, 2002)
  3. Kurzban 180, citing Notice Designating Aliens for Expedited Removal, 69 FR 48877 (Aug. 11, 2004) [for the southern border]; and Press Release, DHS (Jan 30, 2006), published on AILA InfoNet at Doc. No. 06013018 [expanding policy to all borders].
  4. Kurzban 180
  5. Kurzban 180-81, citing 8 C.F.R. §§ 1.2, 1001.1(q). Memo, Perryman, Exec. Assoc. Comm. INS, 501 12.1-P (June 30, 1997), reprinted in 74 No. 31 Interpreter Releases 1247, 1258-59 (Aug. 18, 1997). Bona v. Gonzales, 425 F.3d 663, 667-68 (9th Cir. 2005) [alien arriving under grant of advanced parole not considered to be an “arriving alien” for purpose of expedited removal].
  6. Kurzban 182, citing Memo, Virtue, Acting Exec. Comm., HQ 50/5.12, 96 Act. 054 (Aug. 21, 1997), published on AILA InfoNet at Doc. No. 97082191
  7. Kurzban 182, citing 8 C.F.R. § 217.4(a); Matter of Kanagasundram, 22 I&N Dec. 963 (BIA 1999)
  8. Kurzban 182, citing Matter of E-R-M- & L-R-M-, 25 I&N 520 (BIA 2011) [supporting DHS's discretionary authority]. But see Crane v. Napolitano, 920 F. Supp. 2d 724 (N.D. Tex. 2013) [holding that the language of the statute limits discretion]
  9. Kurzban 183, citing 8 C.F.R. §§ 235.3(b)(5), 235.6(a)(2)(ii), and 1235.3(b)(5)(iv)
  10. Kurzban 182
  11. Kurzban 181, citing 8 C.F.R. §§ 235.3(b)(4), 1235.3(b)(4)
  12. Kurzban 181, citing Memo, Morton, Asst. Sec. ICE, Parole of Arriving Aliens Found to Have a Credible Fear of Persecution or Torture (Dec. 8, 2009)
  13. Kurzban 182, citing 67 FR 68924-26 (Nov. 13, 2002)
  14. Kurzban 182, citing Memo, Morton, Asst. Sec. ICE, Parole of Arriving Aliens Found to Have a Credible Fear of Persecution or Torture (Dec. 8, 2009), published on AILA InfoNet at Doc. No. 09121760
  15. Kurzban 182-83, citing Rodriguez v. Robbins, 715 F.3d 1127, 1139-44 (9th Cir. 2013) [statutes limit detention without bond hearing to 6 months for returning LPRs deemed arriving aliens]; Garza-Garcia v. Moore, 539 F.Supp.2d 899 (S.D. Tex. 2007)

Resources and materials:

Kurzban, Ira J. Kurzban's Immigration Law Sourcebook: A Comprehensive Outline and Reference Tool. 14th ed. Washington D.C. ALIA Publications, 2014. 180-83, Print. Treatises & Primers.