November 12, 2019
Expedited Removal of Aliens: An Introduction
Non-U.S. nationals (aliens) who do not meet requirements
Most aliens subject to expedited removal are thus
governing their entry or continued presence in the United
apprehended either at a designated port of entry or near the
States may be subject to removal. The Immigration and
international border when trying to enter, or shortly after
Nationality Act (INA) establishes different removal
entering, the United States unlawfully between ports of
processes for different categories of aliens. Most removable
entry.
aliens apprehended within the interior of the United States
are subject to “formal” removal proceedings under INA §
Exceptions to Expedited Removal
240. Aliens in these proceedings are given certain
An alien subject to expedited removal typically will be
procedural guarantees including the rights to counsel, to
ordered removed without further hearing or the ability to
appear at a hearing before an immigration judge (IJ), to
contest a removal determination. But exceptions exist for
present evidence, and to appeal an adverse decision. The
certain categories of aliens.
INA, however, sets forth a streamlined “expedited removal”
process for certain arriving aliens and aliens who recently
Credible Fear Determinations
entered the United States without inspection. This In Focus
An alien otherwise subject to expedited removal who
provides a brief introduction to the expedited removal
expresses an intent to apply for asylum or a fear of
framework. For a more detailed discussion, see CRS Report
persecution if returned to a particular country is entitled to
R45314, Expedited Removal of Aliens: Legal Framework,
administrative review of that claim before being removed.
by Hillel R. Smith.
INA § 235(b)(1) instructs that the examining immigration
officer must refer the alien for an interview with an asylum
Statutory Framework and Current
officer to determine whether the alien has a “credible fear”
Implementation
of persecution or torture.
The expedited removal process, created by the Illegal
Immigration Reform and Immigrant Responsibility Act of
A credible fear determination is a screening process that
1996, is codified in INA § 235(b)(1). The statute permits
evaluates whether an alien might qualify for one of three
the Department of Homeland Security (DHS) to summarily
forms of relief from removal: asylum, withholding of
remove aliens arriving at a designated U.S. port of entry
removal, and protection under the Convention Against
(arriving aliens) “without further hearing or review” if they
Torture (CAT). Asylum is the only form of relief that gives
are inadmissible either because they (1) lack valid entry
the alien a permanent legal foothold in the United States.
documents, or (2) tried to procure their admission into the
The credible fear determination is not intended fully to
United States through fraud or misrepresentation. INA §
assess the alien’s claims, but only to determine whether
235(b)(1) also authorizes—but does not require—DHS to
they are sufficiently viable to warrant more thorough
extend application of expedited removal to “certain other
review.
aliens” inadmissible on the same grounds if they (1) were
not admitted or paroled into the United States by
An alien who shows a credible fear of persecution is placed
immigration authorities and (2) cannot establish at least two
in formal removal proceedings rather than expedited
years’ continuous physical presence in the United States at
removal. There, the alien may pursue applications for
the time of apprehension.
asylum, withholding of removal, and CAT protection.
Immigration authorities have implemented expedited
If an asylum officer determines that an alien does not have
removal for three overarching categories of aliens who lack
a credible fear of persecution, the alien may request review
valid entry documents or attempted to falsely procure
of that determination before an IJ. If the IJ concurs with the
admission:
negative credible fear finding, the alien will be subject to
expedited removal. But if the IJ finds that the alien has a
1. arriving aliens (defined by regulation as
credible fear of persecution, the IJ will vacate the asylum
aliens arriving at U.S. ports of entry);
officer’s determination and the alien will be placed in
2. aliens who entered the United States by
formal removal proceedings.
sea without being admitted or paroled
into the United States, and who have been
Aliens Who Claim to Be U.S. Citizens, Lawful
in the country less than two years; and
Permanent Residents, Refugees, or Persons
Granted Asylum
3. aliens apprehended within 100 miles of
INA § 235(b)(1) creates an exception to expedited removal
the U.S. border within 14 days of entering
procedures for an alien who claims to be either a U.S.
the country, and who have not been
citizen, lawful permanent resident (LPR), admitted refugee,
admitted or paroled.
or asylee. Under implementing regulations, an immigration
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Expedited Removal of Aliens: An Introduction
officer must attempt to verify any such claim before issuing
refugee, or asylee. Most courts have construed INA §
an expedited removal order. If the immigration officer
242(e)(2) as barring review of the legality of the underlying
cannot verify the claim, the alien may seek administrative
expedited removal proceedings. The Ninth Circuit,
review of it before an IJ.
however, held in Thuraissigiam v. U.S. Dep’t of Homeland
Withdrawal of Application for Admission
Security that an alien may invoke the Suspension Clause to
challenge an expedited removal order in habeas corpus
As an alternative to expedited removal, DHS may permit an
proceedings despite INA § 242(e)(2)’s limited scope of
alien to withdraw voluntarily his or her application for
review (the Supreme Court has agreed to consider the
admission if the alien intends, and is able, to depart the
government’s appeal of that decision).
United States immediately. The immigration officer
typically considers several factors to determine whether an
Challenges to the Expedited Removal System
alien may withdraw the application for admission, such as
the alien’s prior immigration history
Under INA § 242(e)(3), an alien subject to an expedited
, age and health, and
order of removal may challenge the validity of the
other humanitarian concerns.
expedited removal system by filing a lawsuit in the U.S.
Unaccompanied Children
District Court for the District of Columbia. The district
court’s review is limited to determining whether (1) the
Under federal statute, unaccompanied alien children
expedited removal statute or its implementing regulations is
(UACs) are not subject to expedited removal and are placed
constitutional; and (2) a regulation, written policy directive,
in formal removal proceedings instead. UACs are generally
written policy guideline, or written procedure issued by
put in the custody of the Department of Health and Human
DHS to implement expedited removal is consistent with the
Services’ Office of Refugee Resettlement, but may be
statute or other laws. The lawsuit must be brought within 60
released to an adult sponsor. DHS may permit UACs to
days after implementation of the challenged statutory
return voluntarily to their countries in lieu of removal
provision, regulation, directive, guideline, or procedure.
proceedings if they are nationals of Mexico or Canada and
meet certain criteria.
Collateral Challenges Raised as a Defense during
Detention and Parole of Aliens Subject
Criminal Proceedings for Unlawful Reentry
to Expedited Removal
INA § 235(b)(1) provides that in criminal prosecutions for
INA § 235(b)(1) generally requires the detention of aliens
unlawful reentry into the United States after removal, courts
placed in expedited removal, as well as during any credible
lack jurisdiction to consider claims challenging the validity
fear determination or administrative review of a claim that
of an expedited removal order serving as the basis for the
the alien has legal status. The statute’s mandatory detention
reentry prosecution. But the Fourth and Ninth Circuits have
requirements have been construed to cover aliens who are
held that the statute does not bar judicial review of whether
first screened for expedited removal, even if they are later
a prior expedited removal proceeding was “fundamentally
unfair”
placed in formal removal proceedings (e.g., because the
(i.e., that the proceeding violated the alien’s right to
alien established a credible fear of persecution). DHS,
due process and deprived the alien of the opportunity to
however, may “parole” an alien otherwise subject to
seek relief). Thus, in some cases, an alien criminally
detention under INA § 235(b)(1) for “urgent humanitarian
charged with unlawful reentry after removal may
reasons or significant public benefit,” enabling the alien to
collaterally challenge his or her prior expedited removal
be released from the agency’s physical custody. A federal
order.
court injunction issued in Padilla v. Immigration &
Recent Expansion of Expedited Removal
Customs Enforcement currently requires custody hearings
for aliens who have entered the United States without
In 2019, DHS exercised authority to employ expedited
inspection and are placed in formal removal proceedings
removal to the full degree authorized by INA § 235(b)(1),
after an initial expedited removal screening. In addition, a
to include all aliens physically present in the United States
1997 court settlement agreement known as the Flores
without being admitted or paroled, who have been in the
Settlement generally limits the period in which an alien
country less than two years, and who lack valid entry
minor may be detained by DHS.
documents or procured admission through fraud or
misrepresentation. But a federal district court has enjoined
Limitations to Judicial Review of an
DHS from enforcing the expedited removal expansion
Expedited Order of Removal
pending a legal challenge. The court determined that DHS’s
INA § 242(a)(2) generally bars judicial review of an
expedited removal expansion likely violates the
expedited removal order. But judicial review is still
Administrative Procedure Act because the agency did not
available in limited circumstances.
comply with certain notice-and-comment procedures and
failed to consider the potential negative impacts of
Habeas Corpus Proceedings
expanding expedited removal into the interior of the United
Under INA § 242(e)(2), an alien may challenge an
States. As a result, DHS continues to employ expedited
expedited removal order in habeas corpus proceedings,
removal primarily for aliens apprehended either at a
contesting the legality of his or her detention. The habeas
designated port of entry or near the international border
court’s jurisdiction, however, is limited to whether (1) the
when trying to enter, or shortly after entering, the United
petitioner in the habeas action is an alien; (2) the petitioner
States unlawfully.
was ordered removed under INA § 235(b)(1)’s expedited
removal provisions; and (3) the petitioner can prove by a
Hillel R. Smith, Legislative Attorney
preponderance of the evidence that he or she is an LPR,
IF11357
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Expedited Removal of Aliens: An Introduction


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https://crsreports.congress.gov | IF11357 · VERSION 2 · NEW

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