DHS Expands Use Of Expedited Removal

IMMIGRATION LAW & POLICY

Removal Procedures and Defenses

DHS expands use of expedited removal
Immigrants' Rights Update, Vol. 18, No. 6, September 21, 2004

The Dept. of Homeland Security has published a notice in the Federal Register announcing the agency’s intention to expand the use of expedited removal.

Expedited removal is a procedure established by the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 that allows immigration officers to issue expedited removal orders, resulting in removals from the United States of non–U.S. citizens that generally are carried out with no hearing or review by an immigration judge. Under the statute, the procedure may be used against noncitizens who have not been admitted or paroled into the U.S. and who are determined to be inadmissible on one of two grounds: (1) having procured an immigration benefit through fraud or misrepresentation, or (2) lacking a valid visa or other entry document. Until now, the DHS has used the procedure only against arriving noncitizens at designated ports of entry. Under the new expansion of the program, the DHS will use expedited removal against noncitizens encountered within 100 miles of the border who entered the U.S. without inspection less than 14 days before the time they are encountered.

The notice explains that as a matter of prosecutorial discretion the DHS currently plans to apply the expanded expedited removal procedure principally against nationals of countries other than Mexico or Canada; nationals of these two countries will be placed in expedited proceedings only if they have “histories of criminal or immigration violations, such as smugglers or aliens who have made numerous illegal entries.” The notice also acknowledges that noncitizens in a variety of circumstances “may possess equities that weigh against the use of expedited removal proceedings.” People in this category include unaccompanied minors, members of the class action settlement in American Baptist Churches v. Thornburgh, 760 F.Supp. 796 (N.D.Cal. 1991), and persons eligible for non–lawful permanent resident cancellation of removal. For this reason, immigration officers will have discretion to permit noncitizens to withdraw their application for admission to the U.S. and accept voluntary return, or to be placed in regular removal proceedings.

The notice explains that individuals subject to expedited removal who indicate an intention to apply for asylum will be interviewed by an asylum officer and, if they are found to have a “credible fear,” will be referred to an immigration judge—as will those who assert that they fear being persecuted or tortured should they be removed to their country of origin. Individuals subject to expedited removal who claim lawful permanent resident, refugee, or asylee status or U.S. citizenship also may have their claims reviewed by an immigration judge.

The notice also explains that individuals placed in expedited removal proceedings will be detained without bail and not paroled except as a matter of discretion for a medical emergency or for a law enforcement purpose.

The DHS decided to implement the notice immediately, finding that to delay implementation in order to allow for public notice and comment “would be impracticable, unnecessary, and contrary to the public interest.” The notice took effect on its publication date of Aug. 11, 2004.

69 FR 48877–81 (Aug. 11, 2004).