INS Expands Expedited Removal to Haitians Arriving by Sea

IMMIGRATION LAW & POLICY

Removal Procedures and Defenses

INS EXPANDS EXPEDITED REMOVAL TO HAITIANS ARRIVING BY SEA
Immigrants' Rights Update, Vol. 16, No. 7, November 22, 2002

In an attempt to deter future arrivals of undocumented non–U.S. citizens by sea, the Immigration and Naturalization Service has issued a notice stating its intent to place in the expedited removal process all such persons who arrive by sea, boat, or other means who are not admitted or paroled into the United States and have not been continuously physically present in the U.S. for two years. The new policy clearly is aimed primarily at Haitians, who recently have been arriving in increasing numbers along the southern coast of Florida. In one recent incident, a ship carrying 211 Haitians and 3 Dominicans ran aground on Oct. 29. The main effect of the policy is that most Haitians who apply for asylum will be ineligible for bonds and thus will be detained while their applications are being processed and decided. The new policy went into effect on Nov. 13, 2002.

Expedited removal (INA § 235(b)) was created as part of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA) and is a process imposed on individuals who arrive in the U.S. with false or no documents. The law also allows the INS to apply expedited removal procedures to additional classes of immigrants who have not been admitted or paroled into the U.S. and have not been continuously present for the two-year period immediately prior to the date that their inadmissibility is determined. This notice is the first time the INS has exercised its authority to designate such a class.

Persons subject to expedited removal are summarily removed from the U.S. unless they articulate a fear that they will be persecuted in their homeland. Asylum officers interview individuals who express such a fear to determine whether they meet the "credible fear" standard. A person's expressed fear is determined to be credible if the person shows that there is a significant possibility that he or she is eligible for asylum. Persons who meet the standard may present the merits of their asylum case before an immigration judge. The law requires that individuals be detained until it is determined whether they have a credible fear of persecution, which occurs during the asylum interview. However, the INS maintains most such asylum seekers in custody until their cases are resolved; some are even held until their appeals are decided.

According to the notice, individuals who arrive by sea have the burden of demonstrating that they are not subject to the expedited removal provision because they have been present in the U.S. for the previous two-year period. Anyone who cannot provide such proof is to be considered part of this newly designated class. Any individual within the class who articulates a fear of persecution will be interviewed by an asylum officer and, depending on the individual's credibility, may be referred to an immigration judge. The notice also indicates that an immigrant who meets the credible fear standard will be detained throughout his or her asylum application proceedings and will not be eligible for a bond.

The INS notice notes that the agency will consider humanitarian exceptions to the detention policy. Finally, the notice also notes that expedited removal proceedings will not be initiated against nationals or citizens of Cuba who arrive by sea. The disparity of treatment is based in statute: both the Cuban Adjustment Act and the expedited removal law allow for more favorable treatment of Cubans.

The INS's stated rationale for imposing the policy is couched in terms of national security as well as concerns for safety for the smuggled immigrants who travel by sea. However, the main reason for instituting the policy is to authorize detention of Haitians and thereby deter people from attempting the voyage from Haiti. According to the INS statement accompanying the notice, "Release of aliens may increase future mass migrations by sea. . . ."

67 Fed. Reg. 68,923 (Nov. 13, 2002).