Expedited Removal: Procedures, Rights

Introduction

Expedited removal is a streamlined process in U.S. immigration law that allows for the swift deportation of certain non-citizens without the need for a formal hearing before an immigration judge. This procedure, introduced as part of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996, has become a significant tool in the enforcement of U.S. immigration policies. The process is designed to quickly remove individuals who are deemed inadmissible at ports of entry or those apprehended near the border without proper documentation or with fraudulent documents.

The relevance of expedited removal in the current legal landscape cannot be overstated. As immigration continues to be a contentious issue in the United States, the use and scope of expedited removal have been subjects of ongoing debate and legal challenges. Understanding the procedures and rights associated with expedited removal is crucial for immigrants, legal practitioners, and policymakers alike.

Historical Context and Legal Background

The concept of expedited removal was introduced to address concerns about the increasing number of undocumented immigrants entering the United States and the backlog in immigration courts. Prior to its implementation, most non-citizens apprehended at the border or ports of entry were entitled to a full hearing before an immigration judge, a process that could take months or even years.

The legal foundation for expedited removal is rooted in the Immigration and Nationality Act (INA), specifically Section 235(b)(1), which was added by the Illegal Immigration Reform and Immigrant Responsibility Act of 1996. This section grants the Department of Homeland Security (DHS) broad authority to remove certain aliens expeditiously.

Current Legal Framework

Applicable Laws and Regulations

The primary statute governing expedited removal is found in 8 U.S.C. § 1225(b)(1). This law outlines the categories of aliens subject to expedited removal and the procedures to be followed. Additionally, the process is further detailed in the Code of Federal Regulations, specifically 8 C.F.R. § 235.3(b).

Key aspects of the legal framework include:

1. The authority to designate certain classes of aliens for expedited removal
2. Procedures for conducting credible fear interviews
3. Exceptions to expedited removal, including for asylum seekers

Relevant Regulatory Bodies

The implementation of expedited removal involves several government agencies:

1. U.S. Customs and Border Protection (CBP): Responsible for initial screening and apprehension at borders and ports of entry
2. U.S. Immigration and Customs Enforcement (ICE): Handles detention and removal operations
3. U.S. Citizenship and Immigration Services (USCIS): Conducts credible fear interviews for asylum seekers

Key Components and Concepts

Designation of Aliens Subject to Expedited Removal

The Department of Homeland Security has the authority to designate "any or all" non-citizens who are deemed inadmissible under sections 1182(a)(6)(C) and (a)(7) of the INA for expedited removal. This typically includes:

1. Individuals arriving at ports of entry without proper documentation
2. Those who have entered the U.S. without inspection and are apprehended within 100 miles of the border
3. Individuals who have been in the country for less than two years (as of a 2019 expansion of the policy)

Credible Fear Process

A crucial component of expedited removal is the credible fear interview. If an individual expresses fear of persecution or intention to apply for asylum, they must be referred to an asylum officer for a credible fear interview. This interview determines whether there is a "significant possibility" that the individual could establish eligibility for asylum.

Detention During Expedited Removal

Individuals subject to expedited removal are typically detained pending their removal. The authority for this detention is found in INA § 235, which provides for mandatory detention during the expedited removal process.

Rights and Responsibilities

Rights of Individuals in Expedited Removal Proceedings

While expedited removal is a streamlined process, individuals still retain certain rights:

1. The right to request asylum or express fear of persecution
2. The right to a credible fear interview if fear is expressed
3. The right to consult with a person of their choosing before the credible fear interview, at no expense to the government
4. The right to request review of a negative credible fear determination by an immigration judge

Responsibilities of Immigration Officers

Immigration officers conducting expedited removal have specific responsibilities:

1. Properly identify individuals subject to expedited removal
2. Inform individuals of the charges against them and the consequences of expedited removal
3. Provide individuals with the opportunity to establish identity and lawful status
4. Refer individuals who express fear of persecution for credible fear interviews

Common Issues and Challenges

Legal Challenges to Expedited Removal

Expedited removal has faced numerous legal challenges since its inception. Some key issues include:

1. Due process concerns: Critics argue that the speed of the process may violate due process rights
2. Scope of application: Challenges to the expansion of expedited removal to individuals found anywhere in the U.S. within two years of entry
3. Treatment of asylum seekers: Concerns about the adequacy of screening for asylum claims in the expedited process

Practical Challenges

1. Limited time for individuals to gather evidence or consult with legal counsel
2. Potential for errors in identifying individuals subject to expedited removal
3. Language barriers and access to interpreters

Case Studies and Notable Examples

Barradas-Jacome v. Attorney General United States

In this case, Alexis Fernando Barradas-Jacome filed a petition for review challenging his expedited removal. The case highlights the complexities of expedited removal proceedings and the limited avenues for judicial review.

Osorio-Martinez v. Attorney General United States

This case involved individuals who argued they were not "arriving aliens" and therefore ineligible for expedited removal. It underscores the importance of proper classification in expedited removal proceedings.

Best Practices and Compliance Strategies

For Immigration Officers

1. Thorough training on expedited removal procedures and legal requirements
2. Careful documentation of all steps in the expedited removal process
3. Ensuring proper screening for asylum claims and other exceptions to expedited removal

For Individuals Subject to Expedited Removal

1. Immediately express fear of persecution if applicable
2. Request to speak with a supervisor if there are concerns about the process
3. Seek legal counsel if possible, even though time may be limited

Recent Developments and Proposed Changes

Expansion of Expedited Removal

In 2019, the Department of Homeland Security issued a notice expanding expedited removal to apply throughout the United States to individuals who have been in the country for less than two years. This expansion has been the subject of ongoing litigation.

Resources for Further Information

For more detailed information on expedited removal procedures and rights, the following official resources are available:

1. U.S. Citizenship and Immigration Services - Credible Fear FAQ
2. Congressional Research Service Report on Expedited Removal
3. Immigration and Customs Enforcement - Detention Management

Understanding expedited removal is crucial for anyone involved in or affected by U.S. immigration processes. While designed to streamline certain removals, the procedure remains complex and continues to evolve through policy changes and legal challenges. Individuals potentially subject to expedited removal should be aware of their rights and the importance of promptly expressing any fears of persecution if applicable.