On February 21, 2017, DHS Secretary John Kelly released a pair of memos implementing President Trump's January 25, 2017, Executive Orders (EOs) on border and interior enforcement. What do these memoranda mean and what can you do if you or a relative are confronted by Immigration and Customs Enforcement in Expedited Removal?
Expedited removal is a procedure that allows the Department of Homeland Security (“DHS”) to remove a noncitizen from the United States without a hearing before an immigration judge or the Board of immigration Appeals. Where a noncitizen arrives at a port of entry and is inadmissible due to misrepresentations or false claims to U.S. Citizenship or does not possess valid documents for entry they are subject to expedited removal.
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.
Expedited removal may also occur if a person is apprehended at a place other than a port of entry and is admissible due to one of the two above grounds, has not been admitted or paroled into the USA and cannot show that they have been present in the USA for at least two years.
Expedited removal, as applied by DHS, does not have any of the procedural protections of a hearing before an Immigration Judge. 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, the government takes the position that noncitizens subject to expedited removal have no right to an appeal. At least one court has even held that certain immigrants in expedited removal proceedings have no right to counsel. United States v. PeraltaSanchez, Nos. 14-50393, 14-50394, _ F.3d_, 2017 U.S. App. LEXIS 2165 (9th Cir. Feb. 7, 2017).
Application for Asylum and/or Fear of Returning to Your Home Country
If at any time during the expedited removal, an individual expresses intent to apply for asylum or fear of returning to their home country, the DHS Officer must refer them to an asylum officer for an interview. Upon referral, the asylum officer will conduct a “credible fear interview,” which is designed “to elicit all relevant and useful information bearing on whether the applicant has a credible fear of persecution or torture.
If the asylum officer determines that the individual satisfies the credible fear standard, the applicant is taken out of the expedited removal process, is served with a Notice to Appear, and is placed in removal proceedings before an immigration judge.
If the asylum officer makes a negative credible fear determination, the officer must provide a written record of the determination. Upon request, the individual must be provided with prompt review of the determination by an immigration judge. If the immigration judge determines that the individual has a credible fear of persecution, the expedited removal order will be vacated and DHS will institute removal proceedings. If the immigration judge determines that the individual does not have a credible fear, the case will be remanded to DHS to execute the expedited removal order.
Does the New Executive Order Expand Expedited Removal?
The new Executive Order instructs the Secretary of Homeland Security to apply expedited removal to the fullest extent of the law. It has not been implemented yet and Secretary Kelly has advised that he will publish in the Federal Register who will be subject to Expedited Removal and such notice may state the extent to which Expedited Removal is expanded from its current application. It is possible that immigration officers will use expedited removal against any noncitizen apprehended anywhere in the USA and who entered the USA without inspection less than 2 years prior to the date of expedited removal.
It is too early to know how DHS will implement an expansion of expedited removal. 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. 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).
It is extremely important that if you have been here for two or more years you weigh up the pros and cons of carrying evidence that you have resided in the USA for two years. DHS may incorrectly ignore it, see it as an admission of alienage and use it as proof against the individual either of unlawful status or working without work authorization. If you do decide to carry such evidence, evidence may include any applications you have filed with immigration and/or documents that evidence you are eligible for an immigration benefit such as marriage to a United States citizen or Lawful Permanent Resident. It can also include tax returns, school, work, medical and bank records.
Finally, have a back-up plan for small children or elderly family members if you are placed in expedited removal. Who will pick up your children from school? Who will care for them if you are placed in expedited removal? Perhaps consult with attorneys about guardianship and power of attorney documents for medical and other important decisions if you are suddenly removed from your family with little or no notice. And for all the permanent residents and citizens reading this—call your representatives daily and let them know that we are a nation of immigrants. It is unamerican to tear families apart. This is not who we are as a nation.
Karen-Lee Pollak is the Managing Attorney at Pollak PLLC located in Dallas, Texas. She is a frequent speaker, author and blogger on immigration issues. She can be reached at karenlp@pollakimmigration or under her twitter handle law_immigration.