• Expedited Removal
  • November 10, 2015 | Author: Alexander Joseph Segal
  • Law Firm: The Law Offices of Grinberg & Segal, PLLC - New York Office
  • Expedited Removal

    Under certain circumstances, arriving aliens who are found inadmissible at the border may be subject to expedited removal. Expedited removal is a removal procedure where an alien is removed without a hearing before an immigration judge. However, there are limited circumstances in which an alien who would otherwise be subject to expedited removal may qualify for an exception.

    Who is Subject to Expedited Removal?

    Section 235(b)(1)(A)(i) of the Immigration and Nationality Act (INA) contains the provisions for expedited removal. The following aliens may be removed under the expedited removal procedure:
    • An alien who arrives at the border without being admitted or paroled and is unable to demonstrate that he or she had been continuously physically present in the United States for the 2-year period immediately prior to the determination of inadmissibility.
    • An alien who arrives at the border and is found to be inadmissible for misrepresenting a material fact or for falsely claiming citizenship.[1]
    • An alien who arrives at the border and is not in possession of a valid document for admission or parole to the United States.
    Persons who arrive by sea and cannot demonstrate 2 years of continuous physical presence prior to the finding of inadmissibility will be subject to expedited removal as well.[2]

    Please note that the above provisions do not apply to Cubans who are arriving in the United States.[3]

    Under certain circumstances, aliens who are not “arriving aliens” may be subject to expedited removal. An alien who is found within 100 miles of a U.S. border who has not been admitted or paroled and who cannot demonstrate continuous physical presence in the United States for the previous 14 days will be subject to the expedited removal procedure.[4]

    Exceptions to Expedited Removal

    There are certain exceptions found in INA § 212(b)(1)(A)(i) from the expedited removal procedure for aliens who are described in the previous section. The exceptions are:
    • An alien who establishes a credible fear of persecution after removal will be referred for further consideration for eligibility for asylum.
    • An alien who was paroled into the United States prior to April 1, 1997.
    • An alien who is a minor and has not engaged in activity that would qualify as an “aggravated felony” before a Department of Homeland Security (DHS) officer, who has not been convicted or adjudicated delinquent of a crime that qualifies as an “aggravated felony” either in the United States or abroad, and who has not been previously removed, excluded, or deported from the United States.[5]
    • An alien who is applying for admission under the Visa Waiver Program and who is seeking asylum.[6]
    Furthermore, there the Board of Immigration Appeals (BIA) has held that DHS may place an alien who is otherwise subject to expedited removal in regular removal proceedings instead; although some other federal courts have disagreed.[7]

    The expedited removal procedure does not apply to U.S. citizens, lawful permanent residents, and persons who have been granted asylee or refugee status.[8] A person with a claim to any of these statuses should notify DHS immediately. However, it is important to note that a lawful permanent resident or an asylee or refugee may still be subject to regular removal proceedings.

    Expedited Removal Detention

    With very limited exceptions, an alien will be detained throughout the expedited removal process. The exceptions to expedited removal detention are:
    • Serious medical conditions;
    • Pregnancy;
    • If the alien is juvenile and can be released to a relative who is in or not in detention (or a non-relative who arrived concurrently with the minor and is in detention);
    • If the alien is a witness in an investigation or prosecution;
    • If it is determined that the continued detention of the alien is not in the national interest.[9]
    In order to be granted parole, the alien must satisfy immigration officials that he or she will appear at all hearings and depart the United States if and when he or she is required to do so.[10]

    Credible Fear Determination
    An alien who indicates a fear of persecution in the event of removal shall be referred for an asylum interview.[11] Prior to the interview, the alien may consult with counsel, although this must not unreasonably delay the interview and shall be done at no cost to the government.[12]

    If an alien establishes that he or she has a credible fear of persecution or torture, he or she will be placed in regular removal proceedings where an immigration judge will be able to consider his or her asylum claims. This applies even if the alien appears to be subject to a bar for applying for asylum. An alien who establishes credible fear will have the opportunity to demonstrate eligibility for parole within 7 days of the asylum interview.[13]

    If the alien fails to establish credible fear in the asylum interview, he or she will have the option of requesting review of the negative determination by an immigration judge by filing a Form I-869.[14]

    Expedited Removal Advice
    If an alien who is subject to expedited removal believes that he or she is eligible for an exception, it is imperative to inform DHS immediately. An alien who believes that he or she has a credible fear claim should contact an experienced immigration attorney expeditiously for help in preparing for the interview and the credible fear determination process.

    If an alien determines that he or she is clearly subject to expedited removal and has no avenue for resisting, the alien has the option to request to withdraw his or her application for admission in hope of being permitted to depart the United States voluntarily rather than being removed.[15]

    1. Inadmissibility grounds for falsely claiming a material fact are found in INA §212(a)(6)(C)(i). Inadmissibility grounds for falsely claiming citizenship are found in INA § 212(a)(6)(C)(ii).
    2. 67 FR 68924-26 (Nov. 13, 2002)
    3. INA § 235(b)(1)(F)
    4. Notice Designating Aliens for Expedited Removal, 69 FR 48877 (Aug. 11, 2004) [for the southern border]
    5. Memo, Virtue, Acting Exec. Comm., HQ 50/5.12, 96 Act. 054 (Aug. 21, 1997), published on AILA InfoNet at Doc. No. 97082191
    6. 8 C.F.R. § 217.4(a)
    7. Matter of E-R-M- & L-R-M-, 25 I&N 520 (BIA 2011) ; but see Crane v. Napolitano, 920 F. Supp. 2d 724 (N.D. Tex. 2013) [holding that the language of the statute limits discretion]
    8. 8 C.F.R. § 245.3(b)(5)
    9. 8 C.F.R. § 212.5(b)
    10. 8 C.F.R. § 212.5(d)
    11. INA § 235(b)(1)(A)(ii)
    12. 8 C.F.R. § 208.30(c)(4)
    13. Memo, Morton, Asst. Sec. ICE, Parole of Arriving Aliens Found to Have a Credible Fear of Persecution or Torture (Dec. 8, 2009),published on AILA InfoNet at Doc. No. 09121760
    14. 8 C.F.R. § 208.30(g)
    15. INA § 235(a)(4)