Last week the Administration announced it is expanding the use of expedited removal. Expedited removal is a form of deportation which does not require an administrative hearing or other judicial review. Authorized by section 235 of the Immigration and Nationality Act, expedited removal allows CBP and ICE agents to deport persons who enter or seek to enter the United States without proper documents or by fraud. The “expedited” part of the removal basically means that low-level officers in the government can make a decision on removal, without review by a judge.
Expedited removal has been available in certain cases since 1997. This most recent expansion of policy applies to noncitizens, anywhere in the United States, if they cannot prove continuous physical presence for the past two years. Previously, the time frame was 14 days and the geographic area was limited to within 100 miles of the Canadian and Mexican borders. Unaccompanied minors are not impacted by the new rule, and persons can still claim relief if they can articulate a credible fear of return to their home country.
Most of the news about this policy has focused on undocumented who are inside the United States. Many are advising that undocumented persons gather up evidence to prove they’ve been in the United States for more than two years, in case they encounter an ICE agent. Such preparations may be sufficient to satisfy an officer, on the spot, that expedited removal is not available.
Most of our expedited removal cases arise at the U.S.-Canada border, where there are misrepresentations while seeking entry. We expect to see expedited removal to be used more frequently locally, in light of the Administration’s announcement. The typical case is one where someone says they are seeking entry for one purpose, when in fact they are seeking entry for another purpose, or several unrelated purposes.
The application of a fraud finding can be complicated sometimes, because there are sins of commission and omission. I expect the border will be taking a more expansive view of what constitutes fraud, in the exercise of its expedited removal powers. The trouble with this is there is no administrative or judicial review of such a decision.
If a person is placed in expedited removal, they are barred from seeking re-entry for at least five years, unless they obtain the consent of the U.S. government to seek entry again. There are nonimmigrant waivers available, but the likelihood of success of an application will depend on the merits of the application. There are substantial fees and a processing times to consider as well.
Sometimes it is possible to challenge the actual expedited removal order, through communications with agency leadership. Make no mistake—that is usually a tough road—but I supervisors will reconsider a matter, if a decision is clearly erroneous.