The Department of Homeland Security recently announced that it is significantly expanding its expedited removal policy. Expedited removal will now happen throughout the United States rather than just to individuals who are detained near the border.

Expedited removal is a fast track process for removing (deporting) certain noncitizens without a hearing before an immigration judge. By statute, expedited removal applies only to individuals who lack valid entry documents, who commit fraud or misrepresent a material fact to obtain admission, or who falsely claim U.S. citizenship. Homeland Security has previously applied this rule to individuals it encountered only within 100 air miles of the border and who have not been physically present in the United States continuously for only 14 days.

The recent announcement expands expedited removal to cover the whole country (no matter where Immigration and Customs Enforcement or Customs and Border Protection officials encounter certain noncitizens).  The rule is also expanded to noncitizens who have been in the U.S. for up to two years.  Homeland Security officers anywhere in the country will now be able to bypass immigration court and put noncitizens directly on a fast track to removal.

The following information may be helpful in order to understand the new policy:

  • Fear of Persecution Abroad: Anyone who expresses a fear of persecution abroad will continue to be screened to determine if their fear is credible.
  • Prosecutorial Discretion: DHS states that immigration officers may exercise their discretion to allow individuals to return voluntarily, withdraw applications for admission, or be placed in full removal proceedings before a judge.
  • Physical Presence Requirement: The announcement specifies that any absence from the U.S. would break the physical presence requirement. The burden is on noncitizens to show that they have been in the U.S. for at least two years without a departure from the United States.

The American Immigration Council, along with the American Civil Liberties Union, have announced that they plan to sue the government to stop the expansion of expedited removal. Fortunately, we do not expect that this policy will affect most of our clients, but we will continue to monitor the expansion and implementation of this policy, so that our clients remain informed and prepared.