The Department of Homeland Security’s Authority to Expand Expedited Removal
Legal Sidebari
The Department of Homeland Security’s
Authority to Expand Expedited Removal
Updated April 6, 2022
Non-U.S. nationals (aliens, as the term is used in federal statute) apprehended by immigration authorities
when attempting to unlawfully enter the United States are generally subject to a streamlined, expedited
removal process, in which there is no hearing or further review of an administrative determination that the
alien should be removed. Since the enactment of the expedited removal statute in 1996, expedited
removal has been used primarily with respect to aliens who have either arrived at a designated port of
entry or were apprehended near the border shortly after surreptitiously entering the United States. The
Immigration and Nationality Act (INA), however, authorizes the Secretary of the Department of
Homeland Security (DHS) to apply expedited removal more broadly to aliens in any part of the United
States who have not been admitted or paroled by immigration authorities, if those aliens have been
physically present in the country for less than two years and either did not obtain valid entry documents or
procured their admission through fraud or misrepresentation.
In 2019, during the Trump Administration, DHS issued notice that it was expanding the use of expedited
removal to the full extent permitted under the INA. A federal appellate court upheld the expansion against
a legal challenge seeking to stop its implementation. However, in March 2022, during the Biden
Administration, DHS Secretary Alejandro Mayorkas rescinded the expansion. As a result, expedited
removal remains limited in its application to aliens apprehended at or near the border. Nonetheless, DHS
retains the authority to expand the use of expedited removal, and that authority may continue to prompt
significant questions concerning the relationship between the federal government’s broad power over the
entry and removal of aliens and the due process rights of aliens located within the United States.
The Expedited Removal Framework
Typically, when DHS seeks to remove an alien found in the interior of the United States, it institutes
removal proceedings under INA § 240, conducted by an immigration judge (IJ) within the Department of
Justice’s Executive Office for Immigration Review. During these “formal” removal proceedings, the alien
has a number of procedural protections, including the right to counsel at his own expense, the right to
apply for any available relief from removal (such as asylum), the right to present testimony and evidence
on the alien’s own behalf, and the right to appeal an adverse decision to the Board of Immigration
Appeals (BIA). Additionally, the alien may, as authorized by statute, seek judicial review of a final order
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of removal. Generally, DHS may (but is not required to) detain an alien while formal removal proceedings
are pending, and may release the alien on bond or his or her own recognizance (however, detention is
mandatory if the alien is removable on certain criminal or terrorist-related grounds, except in limited
circumstances).
The INA sets forth a separate removal process for certain arriving aliens who have not been admitted into
the United States—a process that significantly differs from the formal removal proceedings governed by
INA § 240. Specifically, INA § 235(b)(1) provides that an alien arriving at the U.S. border or a port of
entry will be removed from the United States without a hearing or further review if he or she lacks valid
entry documents or has attempted to procure admission by fraud or misrepresentation. (Aliens found
inadmissible on most other grounds—e.g., because of certain criminal activity—are not subject to
expedited removal and will instead be placed in formal removal proceedings.) INA § 235(b)(1) also
authorizes—but does not require—DHS to apply this process to aliens inadmissible on the same grounds
who have not been admitted or paroled into the United States by immigration authorities, and who have
been physically present in the United States for less than two years. “Such designation shall be in the sole
and unreviewable discretion” of the DHS Secretary, and the designation “may be modified at any time.”
Expedited removal has far fewer procedural protections than formal removal proceedings. The alien has
no right to counsel, no right to a hearing, and no right to appeal an adverse ruling to the BIA. Judicial
review of an expedited removal order also is limited in scope. Further, the INA provides that an alien
“shall be detained” pending expedited removal proceedings. Although DHS has discretion to parole an
alien undergoing expedited removal, thereby allowing the alien to physically enter and remain in the
United States pending a determination as to whether he or she should be admitted, DHS regulations only
authorize parole at this stage for a medical emergency or law enforcement reasons.
Despite these restrictions, further administrative review occurs if an alien in expedited removal indicates
an intent to seek asylum or otherwise claims a fear of persecution or torture if removed. If, following an
interview, the alien demonstrates a credible fear of persecution or torture, the alien may pursue an
application for asylum and related protections (if the alien fails to show a credible fear of persecution or
torture, he or she may still seek administrative review of the asylum officer’s determination before an IJ).
Administrative review also occurs if a person placed in expedited removal claims that he or she is a U.S.
citizen, a lawful permanent resident (LPR), or has been granted refugee or asylee status. In these
circumstances, DHS may not proceed with removal until the alien’s claim receives consideration.
Expedited removal initially was implemented only with respect to arriving aliens seeking entry at a U.S.
port of entry. In 2002, the former Immigration and Naturalization Service (INS) exercised its
discretionary authority to expand expedited removal to aliens who entered the United States by sea
without being admitted or paroled, and who have been in the country less than two years. Then, in 2004,
DHS (the successor agency to INS) extended expedited removal to designated aliens apprehended within
100 miles of the U.S. border within 14 days of entering the country, who have not been admitted or
paroled.
DHS’s 2019 Expansion of Expedited Removal
In January 2017, President Trump issued an executive order directing DHS to apply expedited removal
within the broader limitations of the statute. On July 23, 2019, DHS issued a Federal Register Notice to
implement this directive. The notice immediately expanded the scope of aliens subject to expedited
removal within the full extent permitted by INA § 235(b)(1). Specifically, DHS designated the following
two new classes of aliens as subject to expedited removal:
1. Aliens who did not arrive by sea, who are encountered anywhere in the United States
more than 100 air miles from a U.S. international land border, and who have been
continuously present in the United States for less than two years; and
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2. Aliens who did not arrive by sea, who are encountered within 100 air miles from a U.S.
international land border, and who have been continuously present in the United States
for at least 14 days but for less than two years.
Taken together with prior expansions of expedited removal, the streamlined removal process became
potentially applicable to aliens physically present in any part of the United States who (1) were
inadmissible because they lacked valid entry documents or procured their entry through fraud or
misrepresentation, (2) had not been admitted or paroled, and (3) had been in the country less than two
years.
Legal Challenge to the Expedited Removal Expansion
In Make the Road New York v. Wolf, several advocacy groups, on behalf of individuals affected by the
new DHS rule, filed a lawsuit in the U.S. District Court for the District of Columbia, challenging the
agency’s expansion of expedited removal. The plaintiffs alleged that DHS violated the Administrative
Procedure Act (APA) because the agency failed to comply with notice-and-comment procedures before
announcing the expansion, and the agency did not offer a “reasoned explanation” for its decision. The
plaintiffs also argued that the expansion violated the Fifth Amendment’s Due Process Clause because it
deprived individuals who have lived in the United States for lengthier periods of time an opportunity to
contest their removal at a hearing.
In September 2019, federal district court judge Ketanji Brown Jackson granted the plaintiffs’ motion for a
preliminary injunction pending the outcome of the litigation. The court ruled that the plaintiffs were likely
to succeed on the merits of their APA claims because, in expanding expedited removal, DHS failed to
comply with notice-and-comment procedures and to consider the “potential negative impacts” of
expanding expedited removal into the interior of the United States. The court did not address the
plaintiffs’ constitutional challenge to the expedited removal expansion.
In 2020, the U.S. Court of Appeals for the D.C. Circuit reversed the district court’s injunction. The court
held that the plaintiffs failed to show a likelihood of success on the merits of their claim that DHS failed
to offer a “reasoned explanation” for the expedited removal expansion. The court recognized that, under
the APA, there is no judicial review when the “agency action is committed to agency discretion by law.”
The court determined that the plaintiffs’ challenge to DHS’s designation of additional classes of aliens
subject to expedited removal fell within this “restrictive mold” because, under INA § 235(b)(1), “[s]uch
designation shall be in the sole and unreviewable discretion” of the DHS Secretary. Moreover, the court
observed, § 235(b)(1) “provides no discernible standards by which a court could evaluate the Secretary’s
judgment.” Turning to plaintiffs’ claim that DHS failed to comply with notice-and-comment procedures,
the court determined that § 235(b)(1) rendered that process inapplicable to the expansion of expedited
removal because the statute gave the Secretary “sole” discretion to make a designation “entirely
independent of the views of others.”
The D.C. Circuit thus rejected plaintiffs’ APA claims against the expansion of expedited removal. Like
the district court, the D.C. Circuit did not consider whether the expansion of expedited removal violated
other federal statutes or the constitutional rights of aliens within the United States. The D.C. Circuit’s
ruling thus enabled DHS to proceed with its expansion of expedited removal into the interior of the
United States pending further litigation.
Rescission of Expedited Removal Expansion
In February 2021, President Biden, by executive order, directed the Secretary of Homeland Security to
consider whether to modify, revoke, or rescind the 2019 expanded designation of expedited removal. In
March 2022, DHS Secretary Alejandro Mayorkas formally rescinded the expedited removal expansion,
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citing DHS’s operational constraints and its need to prioritize limited enforcement resources given the
high number of alien apprehensions at the Southwest border. According to Secretary Mayorkas,
“expedited removal is best focused as a border enforcement tool on recent entrants encountered in close
proximity to the border or its functional equivalent (e.g., air and land ports of entry), rather than on
individuals apprehended throughout the United States without geographical limitation, who may have
developed significant ties to the community.” The rescission of the 2019 expedited removal expansion did
not rescind or modify any earlier implementation of expedited removal. Therefore, DHS retains the ability
to employ expedited removal with respect to aliens encountered at or near the border.
Constitutional Considerations
Although DHS rescinded its 2019 expansion of expedited removal, the agency could invoke its authority
under INA § 235(b)(1) to designate additional classes of aliens subject to expedited removal in the future.
The Supreme Court has recognized that a federal agency may adopt new policies that depart from its prior
policies so long as the agency acknowledges and sufficiently explains the reasons for the policy change.
DHS, at some point, could decide to employ expedited removal within the full extent permitted by statute,
as it did in 2019 (i.e., throughout the entire United States); or the agency could expand expedited removal
on a more limited basis (e.g., to cover aliens encountered within 200 miles of the border).
Perhaps the key legal question left open by the D.C. Circuit’s decision upholding DHS’s 2019 expansion
of expedited removal is whether due process considerations limit the use of expedited removal in the
interior of the United States. The Supreme Court has long held that aliens seeking entry into the United
States have no constitutional rights regarding their applications for admission. Separate from admission
considerations, the Court also has recognized that aliens who have physically entered the United States,
even unlawfully, are “persons” under the Fifth Amendment’s Due Process Clause. Due process
protections generally include a right to a hearing and a meaningful opportunity to be heard before
deprivation of a liberty interest—features arguably lacking in the expedited removal context, where aliens
generally have no right to a hearing or further review of an administrative determination of removability.
To date, reviewing courts have generally upheld the expedited removal process as employed along the
border (though in a few cases, some courts have held that certain aliens did not meet the criteria for
expedited removal, or that DHS officials failed to comply with expedited removal procedures). For
example, shortly after the expedited removal statute was enacted, a group of advocacy organizations and
aliens who had been removed filed a lawsuit arguing that the expedited removal process—at the time
applied only to aliens arriving at designated ports of entry—offered insufficient procedural protections.
The D.C. federal district court disagreed, citing Congress’s broad legislative authority over the admission
of aliens and “long-standing precedent” that aliens seeking to enter the United States have no
constitutional due process protections concerning their applications for admission, and the D.C. Circuit
affirmed that decision on appeal in 2000. These earlier cases, however, did not consider the expansion of
expedited removal into the interior of the United States or its application to persons who had developed
more significant contacts to the country than aliens initially arriving at the border. The plaintiffs in Make
the Road New York had claimed that even if expedited removal applied to arriving aliens is permissible,
its expansion to aliens who have been physically present in the United States for up to two years is not.
In assessing whether expedited removal may be employed with respect to aliens unlawfully present in the
United States, a key consideration may be whether the procedural protections to which an alien is
constitutionally entitled in removal proceedings turn upon the alien having been admitted into the United
States. In the early decades of the 20th century, the Supreme Court issued several decisions recognizing
that an alien admitted into the country was entitled to notice and a fair hearing before being removed. The
Court suggested, however, that it was less clear whether those protections were owed to aliens who
entered unlawfully, particularly when the unlawful entrants had not developed significant ties to the
United States. More recently in its 1982 decision in Landon v. Plasencia, the Court opined that “an alien
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seeking initial admission to the United States requests a privilege, and has no constitutional rights
regarding his application, for the power to admit or exclude aliens is a sovereign prerogative.” It is only
once “an alien gains admission to our country and begins to develop the ties that go with permanent
residence,” the Court continued, “that his constitutional status changes accordingly.”
In other cases, the Court has seemed to indicate that an alien’s U.S. physical presence alone is sufficient
for due process considerations to attach to removal decisions. In the 1953 case of Shaughnessy v. United
States ex rel. Mezei, for example, the Court held that an alien detained for exclusion at the threshold of
entry was entitled only to whatever process was afforded by Congress. The Court, however, went on to
declare that once an alien has “passed through our gates, even illegally,” he could “be expelled only after
proceedings conforming to traditional standards of fairness encompassed in due process of law.” The
Court has described the Due Process Clause as extending protection to aliens within the United States
“whether their presence here is lawful, unlawful, temporary, or permanent.”
In DHS v. Thuraissigiam, decided in 2020, the Court stated that “aliens who have established connections
in this country have due process rights in deportation proceedings.” The Court did not go further to assess
the nature of “established connections,” beyond determining that an alien apprehended by immigration
authorities 25 yards from the U.S.-Mexico border could be “treated for due process purposes as if stopped
at the border.” Citing Mezei, the Court reasoned that the alien remained “on the threshold” of entry and
was entitled only to those procedures provided by Congress. To conclude otherwise, the Court declared,
would “undermine the sovereign prerogative of governing admission to this country and create a perverse
incentive to enter at an unlawful rather than a lawful location.” In a few published decisions, lower courts
have similarly emphasized aliens’ status as “recent surreptitious entrants” in treating them like applicants
for initial admission who lack due process rights in relation to admission beyond that authorized by
Congress. These cases, though, concerned aliens whose presence in the country was significantly less
than the two-year window set forth in the expedited removal expansion. A future expansion of expedited
removal throughout the United States may require courts to reassess the scope and limitations of
Congress’s broad immigration power with respect to aliens who, though physically present in the country,
were never lawfully admitted, and whether due process affords them certain rights in the course of
removal proceedings.
Author Information
Hillel R. Smith
Legislative Attorney
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