Typically, when the Department of Homeland Security (DHS) seeks to remove an alien found in the interior of the United States, it institutes removal proceedings under INA § 240, conducted by an immigration judge (IJ) within the Department of Justice’s Executive Office for Immigration Review (EOIR). During these “formal” removal proceedings, the alien has a number of procedural protections, including the right to counsel at his own expense, the right to apply for any available relief from removal (such as asylum, adjustment of status, voluntary departure), the right to present testimony and evidence on the alien’s own behalf, and the right to appeal an adverse decision to the Board of Immigration Appeals (BIA). Additionally, the alien may, as authorized by statute, seek judicial review of a final order of removal.
The process of expedited removal governed by INA § 235 (b)(1) was created in 1996, and significantly differs from the formal removal proceedings in that it allows immigration officers to quickly deport certain noncitizens who are undocumented or have committed fraud or misrepresentation, without a hearing or further review. Since 2004, immigration officials have used expedited removal to deport individuals who arrive at our border, as well as individuals who entered without authorization if they are apprehended within two weeks of arrival and within 100 miles of the Canadian or Mexican border
Expedited removal has far fewer procedural protections than formal removal proceedings. The alien has no right to counsel, no right to a hearing, and no right to appeal an adverse ruling to the BIA. Judicial review of an expedited removal order also is limited in scope. Further, the INA provides that an alien “shall be detained” pending expedited removal proceedings. Although DHS has discretion to parole an alien undergoing expedited removal, thereby allowing the alien to physically enter and remain in the United States pending a determination as to whether he or she should be admitted, DHS regulations only authorize parole at this stage for a medical emergency or law enforcement reasons.
In January 2017, President Trump issued an executive order directing DHS to apply expedited removal within the broader limitations of the statute. On July 23, 2019, DHS issued a Federal Register Notice to implement this directive. The notice immediately expanded the scope of aliens subject to expedited removal within the full extent permitted by INA § 235(b)(1). Specifically, DHS designated the following two new classes of aliens as subject to expedited removal:
- Aliens who did not arrive by sea, who are encountered anywhere in the United States more than 100 air miles from a U.S. international land border, and who have been continuously present in the United States for less than two years; and
- Aliens who did not arrive by sea, who are encountered within 100 air miles from a U.S. international land border, and who have been continuously present in the United States for at least 14 days but for less than two years.
On August 6, 2019, immigration practitioners with the American Immigration Council, and others filed a lawsuit in the U.S. District Court for the District of Columbia, challenging the expansion of expedited removal. Make the Road New York v. McAleenan, Case 1:19-cv-02369. The Plaintiffs claim that the new rule violates the Due Process Clause of the Fifth Amendment, the Administrative Procedure Act, and federal immigration laws.
On September 27, 2019, a district court judge granted the plaintiffs’ motion for a preliminary injunction and issued an order blocking DHS from implementing the July 23, 2019, Federal Register notice that expanded expedited removal. As a result, expedited removal currently remains limited to people who are within 100 miles from the border and have been in the U.S. for 14 days or fewer, and to those who arrived by sea.
The proposed expansion of expedited removal would have a significant impact on any undocumented alien in the country for less than two (2) years as it would allow DHS to bypass immigration court and put noncitizens directly on a fast track to removal.