24 Jan Who are subject to Expedited Removal of Aliens in the U.S?
By Atty. Crispin Caday Lozanoq
President Trump Executive Order 13767 on January 25, 2017 instructs the DHS to implement and expand Expedited Removal. We will discuss what it is and how those affected should protect themselves.
Q. What is expedited removal, and who does it apply to now?
A. 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). 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 misrepresentations and false claims to U.S. citizenship or lack of valid entry documents, is subject to expedited removal. Additionally, 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, 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.
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.
Q. How does expedited removal differ from removal proceedings before an immigration judge?
A. Expedited removal is substantially different from removal proceedings in immigration court conducted. In removal proceedings, an immigration judge hears the case. Noncitizens may have an attorney represent them (at their own expense), may apply for relief from removal, and are entitled to substantial due process protections. Finally, even if an immigration judge orders an individual removed, that person may appeal the decision, first to the Board of Immigration Appeals (BIA) and then to a federal court of appeals.
Expedited removal, as applied by DHS, does not have any of those procedural protections. The DHS officer who is authorized to issue an order of expedited removal operates as prosecutor and judge and often arrests an individual and orders him or her deported on the same day. With limited exceptions, discussed below, the government takes the position that noncitizens subject to expedited removal have no right to an appeal.
Q. 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?
A. 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 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.” 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). However, there are pros and cons to carrying documents demonstrating length of residency
Q. Is there a way to ask the issuing agency to reconsider or reopen an expedited removal order?
A. Yes, expedited removal orders are covered by 8 C.F.R. § 103.5, which governs motions to reopen or reconsider DHS decisions.
Any motion to reopen (based on new evidence) or reconsider (based on an incorrect application of law or policy) should be filed with the DHS office that issued the expedited removal order.
The motion should explain both why DHS should vacate the expedited removal order on legal or equitable grounds and why the person subject to the order is eligible for and/or deserving of the requested relief. For example, if the motion seeks cancellation of the expedited removal order to allow the person to withdraw his or her application for admission, the motion should evaluate each factor a CBP officer would consider in deciding such a request. If the motion seeks cancellation of the expedited removal order and issuance of a Notice to Appear, the motion should demonstrate what relief is available to the person in removal proceedings before an immigration judge.
Lastly, 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. Counsel always can request that DHS exercise its prosecutorial discretion to either allow withdrawal of an application for admission or issue a Notice to Appear.
Note: This is not a legal advice and you should seek the advice of an immigration attorney for your personal circumstances.
- On January 12, 2018, we received an approval of immigrant visa at the U.S. Consulate Manila for an alien who applied for I-601-A as one who entered as a seaman.
- On January 10, 2018, we received an approval form USCIS of a self petition for abused spouse based on same sex marriage.
- On January 3, 2018, we received an approval from the Immigration Court for a waiver of misrepresentation for a client who was charged with misrepresentation in marriage;
- On December 15, 2017, we received an approval from USCIS for an adjustment of status for same sex marriage for an applicant who entered without inspection but has Sec. 245 (i).
- On November 16, 2017, we received an approval from Immigration Court for a waiver of misrepresentation for entering as single daughter of U.S. citizen but actually married.
- On October 25, 2017, we received an approval of I-485 adjustment of status for our client who has a DUI but has proof that he has cleared his record.
- On October 20, 2017, we received an approval of naturalization for a client who was granted a waiver of misrepresentation in Immigration Court.
- On October 16, 2017, we received from USCIS an approval for an adjustment of status for same sex marriage, after two scheduled interviews.
- On October 9, 2017, we received an approval from USCIS for adjustment of status for a client who entered as a seaman but has Sec. 245 (i) eligibility.
- On October 2, 2017, we received an approval of adjustment of status from USCIS for a client who entered without inspection but has Sec. 245(i).
- For the week ending September 15, 2017, we received three Immigrant Visa Approvals in U.S. Embassy Manila for three applicants who entered as seaman under the Provisional Waiver Program.
- On August 31, 2017 we received an approval of adjustment of status for a client who has problems with birth certificate which we corrected.
If you have immigration problems the Law Offices of Crispin C. Lozano can help you find a solution before your problem gets worse which could lead to deportation and family separation.
Crispin Caday Lozano, Esq. is an active member of the State Bar of California, the American Immigration Lawyers Association and San Francisco Trial Lawyers Association. He specializes in immigration law and personal injury. For free consultation email or call (firstname.lastname@example.org / 1-877-456-9266)