Immigration Policy on Expedited Removal of Aliens
Released: 2009-01-30T00:00:00

Background

Overview

Expedited removal, an immigration enforcement strategy originally conceived to operate at the borders and ports of entry, recently has been expanded in certain border regions. Whether the policy should be made mandatory and extended into the interior of the country is emerging as an issue. Expanding expedited removal raises a set of policy, resource, and logistical questions.

Expedited removal is a provision in the Immigration and Nationality Act (INA), under which an alien who lacks proper documentation or has committed fraud or willful misrepresentation of facts to gain admission into the United States is inadmissable and may be removed from the United States without any further hearings or review, unless the alien indicates either an intention to apply for asylum or a fear of persecution. Aliens who receive negative "credible fear" determinations may request that an immigration judge review the case. Under expedited removal, both administrative and judicial review are limited generally to cases in which the alien claims to be a U.S. citizen or to have been previously admitted as a legal permanent resident, a refugee, or an asylee.

Aliens subject to expedited removal must be detained until they are removed and may only be released due to medical emergency or if necessary for law enforcement purposes. In addition, aliens who have been expeditiously removed are barred from returning to the United States for five years. Although under law, the Attorney General may apply expedited removal to any alien who has not been admitted or paroled into the United States and cannot show that they have been continuously present for two years, expedited removal has been applied in a more limited manner.

Under regulation, expedited removal only applied to arriving aliens at ports of entry from April 1997 to November 2002. In November 2002, the Bush Administration extended expedited removal to aliens arriving by sea who are not admitted or paroled. Subsequently, in August 2004, expedited removal was expanded to aliens who are present without being admitted or paroled, are encountered by an immigration officer within 100 air miles of the U.S. international southwest land border, and have not established to the satisfaction of an immigration officer that they have been physically present in the United States continuously for the 14-day period immediately preceding the date of encounter.

Legislative History

Failure to have valid documents has long been a ground for exclusion from the United States. With regard to fraudulent entry in general, the INA provides that "any alien who, by fraud or willfully misrepresenting a material fact, seeks to procure (or has sought to procure or has procured) a visa, other documentation, or admission into the United States or other benefit provided under this Act is inadmissible."

The policy option known as expedited removal was proposed in the early 1980s under the name "summary exclusion." The proposal was triggered largely by the mass migration of approximately 125,000 Cubans and 30,000 Haitians to South Florida in 1980. While this dramatic influx of asylum seekers, commonly known as the Mariel boatlift, lasted only a few months, it cast a long shadow over U.S. immigration policy. At that time, aliens arriving at a port of entry to the United States without proper immigration documents were eligible for a hearing before an Executive Office for Immigration Review (EOIR) immigration judge to determine whether the aliens were admissible. If the alien received an unfavorable decision from the immigration judge, he or she also could seek administrative and judicial review of the case. The goal of "summary exclusion" was to stymie unauthorized migration by restricting the hearing, review, and appeal process for aliens arriving without proper documents at ports of entry. It was included and then deleted from legislation that became the Immigration Reform and Control Act of 1986.

In 1993, during the 103 rd Congress, the Clinton Administration proposed "summary exclusion" in S. 1333 / H.R. 2836 , the "Expedited Exclusion and Alien Smuggling Enhanced Penalties Act of 1993," to address the problem of aliens arriving at ports of entry without proper documents. The goal of these provisions was to target the perceived abuses of the asylum process by restricting the hearing, review, and appeal process for aliens at the port of entry. The bill would have instituted a "summary exclusion" procedure for such aliens who did not articulate a plausible asylum claim. The House took no action on H.R. 2836 , but approved H.R. 2602 , a similar bill that would have created a summary exclusion process.

During the 104 th Congress, the House-passed version of H.R. 2202 "The Immigration in the National Interest Act of 1995" (which subsequently became the Illegal Immigration Reform and Immigrant Responsibility Act of 1996) had language providing for the "expedited removal of arriving aliens" and deemed aliens who were in the United State without inspection to be arriving. H.R. 2202 also restructured the laws on deportation and exclusion into a single "removal" process. During the debate on its related bill, S. 1664 , however, the Senate eliminated the bill's "expedited removal" provisions, replacing them with a more limited special exclusion process to be used only in "extraordinary migration situations." The Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA; P.L. 104 - 208 , Division C) established the expedited removal policy that is in place today.

Current Policy

Basics of Expedited Removal

An immigration officer can summarily exclude an alien arriving without proper documentation or an alien present in the United States for less than two years, unless the alien expresses an intent to apply for asylum or has a fear of persecution or torture. According to DHS immigration policy and procedures, Customs and Border Protection (CBP) inspectors, as well as other DHS immigration officers, are required to ask each individual who may be subject to expedited removal (i.e., arriving aliens who lack proper immigration documents) a series of "protection questions" to identify anyone who is afraid of return.

If the alien expresses a fear of return, the alien is supposed to be detained by the Immigration and Customs Enforcement (ICE) Bureau and interviewed by an asylum officer from DHS' Bureau of Immigration and Citizenship Services (USCIS). The asylum officer then makes the "credible fear" determination of the alien's claim. Those found to have a "credible fear" are referred to an EOIR immigration judge, which places the asylum seeker on the defensive path to asylum. In those cases in which the alien requests it, an immigration judge may review the USCIS asylum officer's determination that the alien does not have a credible fear of persecution. Under IIRIRA, the review must be concluded "as expeditiously as possible, to the maximum extent practicable within 24 hours, but in no case later than 7 days" after the asylum officer's finding of no credible fear.

The law states that expedited removals are not subject to administrative appeals; however, those in expedited removal who claim a legal right to reside in the United States based on citizenship, legal permanent residence, asylee or refugee status are to be provided with additional procedural protections, rather than being immediately returned. Aliens whose visas have been revoked by the Department of State are subject to expedited removal. The expedited removal provisions provide very limited circumstances for administrative and judicial review of those aliens who are summarily excluded or removed. Additionally, those in expedited removal are subject to mandatory detention.

When expedited removal initially went into effect in April 1997, the INS applied the provisions only to "arriving aliens" as defined in 8 CFR §1.1(q). The discussion accompanying the regulation defining expedited removal procedures and "arriving aliens" clarifies:

The [Justice] Department acknowledges that application of the expedited removal provisions to aliens already in the United States will involve more complex determinations of fact and will be more difficult to manage, and therefore wishes to gain insight and experience by initially applying these new provisions on a more limited and controlled basis.

The Department does, however, reserve the right to apply the expedited removal procedures to additional classes of aliens within the limits set by the statute, if, in the [INS] Commissioner's discretion, such action is operationally warranted. It is emphasized that a proposed expansion of the expedited removal procedures may occur at any time and may be driven either by specific situations such as a sudden influx of illegal aliens motivated by political or economic unrest or other events or by a general need to increase the effectiveness of enforcement operations at one or more locations.

Expedited Removal Procedure at the Ports of Entry

The logistics of expedited removal at ports of entry are fairly straightforward. Aliens placed in expedited removal proceedings are detained pending a determination of their removability. At land ports of entry, the aliens who are issued expedited removal orders are denied entry to the United States. After the expedited removal order is issued at an air or sea port of entry, the airline or sea carrier is required to take the inadmissible alien back on board or have another vessel or aircraft operated by the same company return the alien to the country of departure.

Arrivals at Sea

On November 13, 2002, INS published a notice clarifying that certain aliens arriving by sea who are not admitted or paroled are to be placed in expedited removal proceedings. This notice concluded that illegal mass migration by sea threatens national security because it diverts the Coast Guard and other resources from their homeland security duties. This expansion of expedited removal was in response to a vessel that sailed into Biscayne Bay, Florida on October 29, 2002, carrying 216 aliens from Haiti and the Dominican Republic who were attempting to enter the United States illegally.

Expansion Along the Border

In addition, on August 11, 2004, DHS published a notice potentially expanding the use of expedited removal by authorizing the agency to place in expedited removal proceedings aliens who:

are determined to be inadmissible because they lack proper documents; are present in the United States without having been admitted or paroled following inspection by an immigration officer at a designated port of entry; are encountered by an immigration officer within 100 air miles of the U.S. international land border; and have not established to the satisfaction of an immigration officer that they have been physically present in the United States continuously for the 14-day period immediately preceding the date of encounter.

The notice was given effect with respect to apprehensions made within the border patrol sectors of Laredo, Rio Grande Valley (McAllen), Del Rio, Marfa, El Paso, Tucson, Yuma, El Centro, San Diego, Blaine, Spokane, Havre, Grand Forks, Detroit, Buffalo, Swanton, and Houlton. Expedited removal is only applied to nationals who are not from Mexico or Canada, and Canadians and Mexicans with histories of criminal activities or immigration violations. DHS stated that expanding expedited removal on the border "will enhance national security and public safety by facilitating prompt immigration determinations, enabling DHS to deal more effectively with the large volume of persons seeking illegal entry, and ensure the removal from the country of those not granted relief, while at the same time protecting the rights of the individuals affected." DHS also maintains that the expansion of expedited removal will the interfere operation of human trafficking and smuggling organizations.

Nonetheless, DHS states that expedited removal currently can not be applied to the nearly one million aliens who are apprehended annually on the southwest border, as it is not possible to initiate formal removal proceedings against all of the aliens. The majority of aliens apprehended along the southwest border are Mexican nationals who are "voluntarily" returned to Mexico without a formal removal hearing. Nationals from countries other than Mexico (often referred to as Other-than Mexicans or OTMs) must be returned to their home county by aircraft (when apprehended at a airport) or placed into removal proceedings.

Although the August 2004 notice stated that expedited removal could be applied to numerous border patrol sectors along the southwest and northern borders, it was only expanded to all eligible southwest border patrol sections in September 2005, and to the northern and coastal borders in January 2006 . Beginning in August 2004, expedited removal was piloted in the Laredo, Texas and Tucson, Arizona sectors, and then expanded to the Rio Grande Valley, Texas sector. In addition, expedited removal was used in the Yuma and El Centro Arizona, and the San Diego, California sectors only for aliens who met the criteria for expedited removal and had illegally reentered the United States while being subject to prior orders of exclusion, removal, or deportation. On September, 14, 2005, the Secretary of Homeland Security stated that border patrol agents had been trained in the application of expedited removal and expanded the use of expedited removal to the entire southwest border. The Secretary also reported, that because of support from Congress, DHS would acquire the additional detention space needed to detain the increased number of aliens subject to expedited removal. Lastly, on January 30, 2006, the Secretary announced the expansion of expedited removal along the northern and coastal borders.

Issues

Due Process

In terms of procedural due process under the Fifth Amendment, critics of expedited removal maintain that immigration law has long made a distinction between those aliens seeking admission to the United States and those who are already within the United States, irrespective of the legality of the entry. In the latter instance, they observe, the Supreme Court has recognized additional rights and privileges not extended to those in the former category, who are merely "on the threshold of initial entry." Some legal scholars continue to question whether the Constitution applies at all to aliens seeking entry at the border or a port of entry, particularly in determining an alien's right to be here.

Proponents of expedited removal state that it is well settled in the courts that aliens seeking admission have no constitutional rights with respect to their applications for admission. Accordingly, they cite the 1998 U.S. District Court decision in AILA v. Reno , in which the court concluded that the aliens "cannot avail themselves of the protections of the Fifth Amendment to guarantee certain procedures with respect to their admission." Proponents similarly reject arguments based upon equal protection claims for discrimination.

Protections for Asylum Seekers

Proponents of expedited removal reference the provisions giving aliens who express a fear of persecution or an intention to seek asylum the opportunity for a credible fear determination. They usually cite statistics indicating that more than 90% of aliens who express a fear are deemed to be credible (pass their credible fear hearing) and are able to bring their cases to an immigration judge. They also note that the U.S. Commission on International Religious Freedom (USCIRF) study found that DHS has mandatory procedures in place to ensure that asylum seekers are protected under expedited removal. Testifying on the issue of expedited removal, C. Stewart Verdery, Jr., formerly Assistant Secretary for Border and Transportation Security Policy and Planning in DHS, concluded, "I am heartened to see that internal and external reviews of the asylum process largely have concluded that DHS has handled this subset of cases appropriately."

Critics of expedited removal maintain that a low-level immigration officer's authority to order removal is virtually unchecked. The officer's decision to place the person in expedited rather than regular removal proceedings, they argue, can result in the person losing substantive rights. Indeed, they assert that there have been reports of abuse of the procedure since it was first implemented at the ports of entry and many individuals with valid claims have been erroneously removed. Critics refer to one investigation that found cases where aliens had requested the opportunity to apply for asylum but were refused and "pushed back" at primary inspection.

Mandatory Detention of Asylum Seekers

As discussed, IIRIRA requires that aliens in expedited removal be detained, and thus aliens in expedited removal who claim asylum are detained while their "credible fear" cases are pending. Prior to IIRIRA, most aliens arriving without proper documentation who applied for asylum were released on their own recognizance into the United States (and given work authorization), a practice which enabled inadmissable aliens falsely claiming persecution to enter the country. As a result, many argued that the only way to deter fraudulent asylum claims was to detain asylum seekers rather than releasing them on their own recognizance. Indeed the practice of detaining asylum seekers has reduced the number of fraudulent asylum claims.

However, others contend that the policy of detaining all asylum seekers who enter without proper documentation is too harsh. The position of the United Nations High Commission on Refugees is that detention of asylum seekers is "inherently undesirable." They argue that detention may be psychologically damaging to an already fragile population such as those who are escaping from imprisonment and torture in their countries. Often the asylum seeker does not understand why they are being detained. Additionally, asylum seekers are often detained with criminal aliens. From April 1, 1997, through September 30, 2001, there were 34,736 aliens in expedited removal who made a claim of credible fear. Of these, 33,551 were detained, and 1,185 were paroled.

Coordination Across Agencies

Concerns about the coordination across agencies involved in expedited removal are arising, an issue that some observers argue has been exacerbated by the dispersal of immigration functions into four different agencies. While one evaluation points to longstanding immigration management issues, another study that focused on expedited removal concludes "[t]he impediments to communication and information sharing within DHS ... are serious." This study further maintains:

Some procedures were applied with reasonable consistency, but compliance with others varied significantly, depending upon where the alien arrived, and which immigration judges or inspectors addressed the alien's claim. Most procedures lacked effective quality assurance measures to ensure that they were consistently followed.

Supporters of expedited removal point to evidence of cooperation among the agencies and maintain that proper training has been a key part of the expedited removal deployment. The Administration states that all immigration officers who conduct expedited removal proceedings have been trained in how to implement the statutory provisions and regulations. It further argues that it "developed extensive, detailed regulations and procedures that go far beyond the statutory requirements to ensure fair and consistent application of the law," and adds that these regulations, "were developed following public comment and input from various immigrant, legal and community-based groups.... "

Expansion of Expedited Removal

There have been discussions about expanding expedited removal to include all groups authorized under statute. In other words, aliens who had illegally entered the United States and could not prove that they had been continuously present for more than two years would be detained and removed without hearings or review unless they claimed asylum. Proponents argue that expedited removal is necessary to stretch enforcement resources. Opponents note that there are other ways to accelerate the removal process (such as, the Institutional Removal Program) which are efficient and do not sacrifice the aliens rights.

Protection of Rights

When aliens are placed in expedited removal, they do not have access to relief from deportation other than asylum protections and protections under the torture convention, unless they claim a legal right to reside in the United States based on citizenship, or legal permanent resident status. For example, those in expedited removal would not be eligible for relief from deportation under the Violence Against Women Act, Temporary Protected Status, or as trafficking victims. As discussed above, aliens in full removal proceedings (under INA §240, see Appendix A for a discussion of §240 removal proceedings) have access to more types of relief from removal than those in expedited removal.

Opponents of expanding expedited removal argue that aliens in the United States have a fundamental right to due process and other constitutional protections, and that the expansion would deprive aliens of significant rights and safeguards (including the opportunity to apply for immigration benefits for which they are eligible), and would be constitutional unsound. In addition, those opposed to the expansion of expedited removal express concerns that since there is no review by EOIR and only limited judicial review, the immigration officer's authority to order the alien removed is almost unchecked, and that there have been reports of abuse of the expedited removal procedure since its inception, including aliens with valid legal status who were expeditiously removed.

Proponents of expanding expedited removal point to the law which states that aliens subject to expedited removal have not "entered" the United States, and therefore are not entitled to these rights. In addition, aliens in primary and secondary inspection do not have a right to representation unless the alien has become the focus of a criminal investigation. Proponents reiterate that all expedited removal orders are reviewed by the immigration officers' supervisors, providing a built-in check to the system, and that there are safeguards built into the expedited removal system for those who fear persecution.

Cost and Resources

Arguments for and against the expansion of expedited removal invoke the issue of resources. While expanding expedited removal will increase the need for some resources, it will also lessen the need for others. As a result, it is difficult to ascertain whether the expansion of expedited removal will increase or decrease the cost of removing aliens. Since expedited removal accelerates the removal of aliens by limiting the aliens' access to judicial hearings and reviews, it can reduce the costs of the DHS lawyers who represent the government's position in removal cases, the EOIR courts, and detention—both staff and bed space—, as the aliens are detained for shorter periods of time. Similarly, as aliens in expedited removal are not eligible for bond, they are also, unlike aliens in formal removal procedures, ineligible for bond redetermination hearings in front of an immigration judge. In addition, there is evidence that the most recent expansion of expedited removal along the southwest border has decreased the apprehensions of OTMs along the border, which may imply that the expansion of expedited removal has been a deterrent to those trying to enter the country illegally.

However, both the availability of detention bed space and transportation of aliens placed in expedited removal (i.e., transporting the aliens to detention facilities, and returning the alien to their home country) present barriers to expanding expedited removal. Aliens placed in expedited removal are subject to mandatory detention, yet many of these individuals do not have criminal records, multiple re-entries, or other characteristics that would make them subject to mandatory detention absent expedited removal. Since aliens under expedited removal are subject to mandatory detention while noncriminal aliens in removal proceedings are often not detained, expanding expedited removal may raise detention costs (including transporting aliens to the detention facilities), and make fewer beds available for other aliens to go through removal proceedings. Notably, ICE has been at or above their detention capacity for several years. In addition, expanding expedited removal would increase the need for deportation officers to arrange the physical removal of the aliens, and USCIS asylum officers, to conduct the additional credible fear hearings.

Removal Proceeding Delays

Proponents of expanding expedited removal note the delays imposed by immigration judges in adjudicating removal cases, as well additional postponements resulting from the appeals process, which can take years. In addition, they contend that aliens use frivolous appeals to postpone deportation. Some note that any improvement that can reduce the delays in the removal process, including both the courts and the actual deportation, can enhance the government's ability to enforcement immigration laws. Opponents of expanding expedited removals contend that removing EOIR's role in removal proceedings infringes on the rights of aliens and creates a situation where there is little oversight, noting that recent changes in EOIR have helped streamline the removal procedures.

Logistics

Expanding expedited removal raises questions about how the policy would be implemented. As discussed previously, the process of expedited removal at ports of entry is fairly straightforward, but there are issues that need to be explored to expand expedited removal into the interior. For example, if an alien is arrested and placed in expedited removal, would he have a chance to collect documents, or contact family or friends? Would the alien be released to gather documents to prove that he is not subject to expedited removal? Since those in expedited removal are subject to mandatorily detention, would the alien be detained? In addition, what happens to aliens who are unable to be returned to their home countries because the country will not produce travel documents? Would these aliens be subject to the same post-order-custody reviews as those who were given final orders of removal and are unable to be returned to their native country? For example, in 1999, INS published an advance notice that it intended to apply expedited removal on a pilot basis to certain criminal aliens beings held in three correctional facilities in Texas. The program was never implemented. Under this pilot program expedited removal would have only been applied when the federal courts had affirmatively determined that the alien fell within the illegal entry criteria for expedited removal.

As discussed above, the INS wrote in the interim rule on expedited removal that the "application of the expedited removal provisions to aliens already in the United States will involve more complex determinations of fact and will be more difficult to manage.... " Nonetheless, expedited removal has been in practice for eight years, providing DHS with insight on the process, and presumably putting DHS in a better position to expand expedited removal than when the policy was new. Furthermore, to expand expedited removal, proper training would have to be provided to immigration officers implementing expedited removal. DHS stated that training was one of the reasons that expedited removal was implemented in stages along the southwest border.

Appendix A. Overview of §240 Formal Removal Procedures

When DHS encounters an alien that DHS thinks should be removed from the United States, the alien is presented a Notice-to-Appear (NTA), which commences the removal proceeding. The NTA is comparable to a charging document in criminal courts. The NTA outlines the charges against the alien, and identifies which part of the immigration statute the alien is being charged with violating.

If the alien's NTA is issued by the border patrol and the alien is not taken into custody, the alien is released on his own recognizance. If the NTA is issued by ICE, an alien not subject to mandatory detention may be released on bond. If the alien is not a mandatory detainee and is not released on bond, the alien may request a bond redetermination hearing before an immigration judge to have the bond lowered, or to be given bond. During the bond hearing, the alien must prove that he is not a flight risk or a danger to society. Bond hearings are not considered part of the removal process.

The alien's first appearance in immigration court is at the master calendar hearing, a preliminary hearing to review the case. In absentia cases, and cases where the respondent concedes removability and does not apply for relief, are decided at the master calender hearing. Relief from deportation can be granted at the master calender hearing if both the government and the alien agree to the relief. Frequently the cases of detained aliens are also concluded at the master calender hearing. Nonetheless, under most circumstances, at the master calender hearing, a time is set for an individual merit hearing. The individual merit hearing is the time when the government's attorney must prove the charges on the NTA, witnesses are presented, and the judge rules on whether the alien is removable from the United States and is eligible for relief from removal. Within 30 days after the hearing, the government's attorney or the alien may appeal the decision to the Board of Immigration Appeals (BIA). After the BIA decision the alien may appeal to a federal court.

The first step in a court removal proceeding is that DHS must establish that the person in court is indeed an alien. Then, if the alien establishes that he/she was admitted, then the burden shifts back to DHS to prove that the alien is deportable. The alien has the burden to prove that he/she is eligible for any form of relief. An alien who fails to appear for a removal hearing (absent exceptional circumstances) can be removed in absentia and is ineligible for relief from removal for 10 years. In addition, the alien becomes inadmissible for five years.

The courts have ruled that removal proceedings are civil not criminal, and that deportation is not punishment. Thus, there is no right to counsel, no right to a jury trial, and the due process protections are less than in a criminal trial. Furthermore, a decision on removablity does not have to be proven beyond a reasonable doubt. In addition, because deportation is not punishment, Congress may impose new immigration consequences for actions that previously occurred (i.e., actions which would not have made the alien deportable when they occurred, may make the alien deportable at a later date if Congress changes the law). IIRAIRA limited the time and number of motions to reopen and reconsider removal cases for the alien.

Appendix B. Legislation in the 110 th Congress

Several bills in the 110 th Congress— H.R. 2413 , H.R. 2954 , and H.R. 4065 —would have codified the current policy applying expedited removal to aliens encountered within 100 miles of an international land border who have not been in the United States more than 14 days. H.R. 2413 was introduced by Representative Daniel Lungren on May 21, 2007. H.R. 2954 was introduced by Representative Peter King on July 10, 2007, and H.R. 4065 was introduced by Representative James Sensenbrenner on November 7, 2007.

H.R. 750 would have specified that asylum seekers who pass credible fear hearings, and unaccompanied alien minors are not eligible for expedited removal (which is the current policy). H.R. 750 would also have eliminated mandatory detention of aliens in expedited removal. H.R. 750 was introduced by Representative Sheila Jackson Lee on January 13, 2007.

Other bills would have expanded expedited removal. H.R. 519 , introduced on January 17, 2007, by Representative John T. Doolittle, was comparable to H.R. 4032 in the 109 th Congress. H.R. 519 would have required that expedited removal be applied to all aliens who are eligible under the statute. Thus, unlike current policy, aliens in the interior of the country who have not been admitted or paroled into the United States, and who could not affirmatively show that they have been physically present in the United States continuously for two years, would have been subject to expedited removal. H.R. 3638 would have expanded expedited removal by applying it to aliens who were unlawfully present in the United States and who were arrested for any offense by state or local law enforcement. On September 24, 2007, Representative Dan Burton introduced H.R. 3638 .

S. 1639 would have mandated that the Secretary of DHS establish procedures to ensure that questions asked by DHS employees when exercising expedited removal authority were asked in a standard manner, and are recorded. S. 1639 , introduced by Senator Edward Kennedy, was placed on the Senate calender on June 19, 2007. It was debated on the Senate floor, and pulled on June 28, 2007, when cloture was not invoked.