Expedited Removal of Aliens: An Introduction

Expedited Removal of Aliens: An Introduction

Updated March 25, 2022
Expedited Removal of Aliens: An Introduction
Non-U.S. nationals (aliens) who do not meet requirements
Most aliens subject to expedited removal have thus been
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. 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 mainly for three overarching categories of aliens
a credible fear of persecution, the alien may request review
who lack valid entry documents or attempted to falsely
of that determination before an IJ. If the IJ concurs with the
procure admission:
negative credible fear finding, the alien will be subject to
expedited removal. 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
expedited removal proceedings. In Dep’t of Homeland
an expedited removal order. If the immigration officer
Security v. Thuraissigiam, the Supreme Court upheld these
cannot verify the claim, the alien may seek administrative
judicial review limitations against a constitutional
review of it before an IJ.
challenge.
Withdrawal of Application for Admission
Challenges to the Expedited Removal System
As an alternative to expedited removal, DHS may permit an
Under INA § 242(e)(3), an alien subject to an expedited
alien to withdraw voluntarily his or her application for
order of removal may challenge the validity of the
admission if the alien intends, and is able, to depart the
expedited removal system by filing a lawsuit in the U.S.
United States immediately. The immigration officer
District Court for the District of Columbia. The district
typically considers several factors to determine whether an
court’s review is limited to determining whether (1) the
alien may withdraw the application for admission, such as
the alien’s prior immigration history
expedited removal statute or its implementing regulations is
, age and health, and
constitutional; and (2) a regulation, written policy directive,
other humanitarian concerns.
written policy guideline, or written procedure issued by
Unaccompanied Children
DHS to implement expedited removal is consistent with the
statute or other laws. The lawsuit must be brought within 60
Under federal statute, unaccompanied alien children
days after implementation of the challenged statutory
(UACs) are not subject to expedited removal and are placed
provision, regulation, directive, guideline, or procedure.
in formal removal proceedings instead. UACs are generally
put in the custody of the Department of Health and Human
Collateral Challenges Raised as a Defense During
Services’ Office of Refugee Resettlement, but may be
Criminal Proceedings for Unlawful Reentry
released to an adult sponsor. DHS may permit UACs to
INA § 235(b)(1) provides that in criminal prosecutions for
return voluntarily to their countries in lieu of removal
unlawful reentry into the United States after removal, courts
proceedings if they are nationals of Mexico or Canada and
lack jurisdiction to consider claims challenging the validity
meet certain criteria.
of an expedited removal order serving as the basis for the
Detention and Parole of Aliens Subject
reentry prosecution. Some federal appellate courts,
to Expedited Removal
however, have held that the statute does not bar judicial
INA § 235(b)(1) generally requires the detention of aliens
review of whether a prior expedited removal proceeding
placed in expedited removal, as well as during any credible
was “fundamentally unfair” (i.e., that the proceeding
fear determination or administrative review of a claim that
violated the alien’s right to due process and deprived the
the alien has legal status. The statute’s mandatory detention
alien of the opportunity to seek relief). Thus, in some cases,
requirements have been construed to cover aliens who are
an alien criminally charged with unlawful reentry after
first screened for expedited removal, even if they are later
removal may collaterally challenge a prior expedited
placed in formal removal proceedings (e.g., because the
removal order.
alien established a credible fear of persecution). DHS,
Expansion of Expedited Removal
however, may “parole” an alien otherwise subject to
detention under INA § 235(b)(1) for “urgent humanitarian
In 2019, DHS exercised authority to employ expedited
reasons or significant public benefit,” enabling the alien to
removal to the full degree authorized by INA § 235(b)(1),
be released from the agency’s physical custody. In addition,
to include all aliens physically present in the United States
a 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. A federal district court initially enjoined
Limitations to Judicial Review of an
DHS from implementing this initiative pending a legal
Expedited Order of Removal
challenge, but the D.C. Circuit reversed that decision,
INA § 242(a)(2) generally bars judicial review of an
enabling DHS to apply expedited removal in the interior of
expedited removal order. Judicial review, however, is still
the United States pending the outcome of the litigation.
available in limited circumstances.
In 2021, however, President Biden directed the Secretary of
Habeas Corpus Proceedings
Homeland Security to consider whether to modify or
Under INA § 242(e)(2), an alien may challenge an
rescind the expanded designation of aliens subject to
expedited removal order in habeas corpus proceedings,
expedited removal. In 2022, the DHS Secretary rescinded
contesting the legality of his or her detention. The habeas
the expansion, citing DHS’s operational constraints and
court’s jurisdiction, however, is limited to whether (1) the
limited enforcement resources. As a result, DHS’s authority
petitioner in the habeas action is an alien; (2) the petitioner
to employ expedited removal remains limited in its
was ordered removed under INA § 235(b)(1)’s expedited
application to aliens who are apprehended at or near the
removal provisions; and (3) the petitioner can prove by a
border.
preponderance of the evidence that he or she is an LPR,
refugee, or asylee. Most courts have construed INA §
Hillel R. Smith, Legislative Attorney
242(e)(2) as barring review of the legality of the underlying
IF11357

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Expedited Removal of Aliens: An Introduction

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