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AILA Doc. No. 19072207 | Dated October 27, 2020
CBS News reporter Camilo Montoya-Galvez tweeted the DHS/ICE notice that ICE will be providing to individuals subjected to ICE’s expanded expedited removal policy. Montoya-Galvez also tweeted eight ICE training slides detailing how ICE will be enforcing this policy.
The American Civil Liberties Union, the American Immigration Council, the National Immigration Litigation Alliance, and Simpson Thacher & Bartlett LLP are continuing to challenge the Trump administration’s decision to expand the scope of expedited removal (ER) in the lawsuit Make the Road NY v. Wolf, No. 1:19-cv-02369 (D.D.C.). Under the expansion, ER can be applied to any noncitizen apprehended anywhere within the United States who is inadmissible under INA § 212(a)(6)(C) or (7), has not been admitted or paroled at a port of entry, and who cannot prove that he or she has been present in the United States for 2 years or more.
Previously, the district court granted a preliminary injunction barring DHS from implementing the expansion of ER. However, the D.C. Circuit court of appeals reversed that decision, and the injunction was lifted in late September 2020. Subsequently, the media has reported that ICE officers have attended trainings to allow them to implement expanded ER starting in mid-October.
The litigation team is seeking a new preliminary injunction to halt the use of expanded ER. A briefing schedule has been entered, with Plaintiffs’ reply brief filed on November 6, 2020. If you learn of individuals subject to expanded ER, please contact the litigation team. Specifically, if you learn of someone subject to ER who:
BuzzFeed News reported that acting head of ICE, Tony Pham, sent an email to ICE employees on October 2 indicating that ICE officers and agents need to finish a mandatory online training course on the expanded expedited removal policy by October 16. Once ICE officials complete the mandatory training course online, they can begin using the new expanded expedited removal powers to quickly deport immigrants. The email was first reported by Bloomberg Government. The Buzzfeed News article also discusses an implementation memo issued by Tony Pham.
On September 22, 2020, the D.C. Circuit Court denied en banc plaintiff’s petition for rehearing.
Congressional Research Service issued the following report: The Department of Homeland Security’s Nationwide Expansion of Expedited Removal.
On June 23, 2020 the D.C. Circuit Court reversed the District Court’s grant of a preliminary injunction in challenge to the expanded expedited removal process. The D.C. Circuit Court of Appeals affirmed that the district court had jurisdiction, but vacated the preliminary injunction. The court reasoned that the merits of plaintiffs’ notice and comments claims were not likely to succeed. (Make the Road New York, et al., v. Wolf, et al., 6/23/20).
Attorneys for Make the Road New York stated after the decision that practitioners should be aware that:
On September 27, 2019, a district court judge granted the plaintiffs’ motion for a preliminary injunction and issued an order blocking DHS from implementing the July 23, 2019, Federal Register notice that expanded expedited removal. As a result, expedited removal currently remains limited to people who are within 100 miles from the border and have been in the U.S. for 14 days or fewer, and to those who arrived by sea.
On August 28, 2019, the government released ICE guidance on the implementation of expanded expedited removal, as part of the American Immigration Council's lawsuit. The guidance, dated July 24, 2019, states that ICE will likely begin implementation of expanded expedited removal "on or about September 1, 2019."
Preparing for Expansion of Expedited Removal
Given the September 1, 2019, implementation date, AILA members should consider working with affected clients to prepare in advance for the possibility of their being subject to expedited removal. If AILA members decide in consultation with a client that they want the client to carry evidence of their presence in the U.S., the client should carry copies of documents, not original documents. Depending on the client's circumstances, members may want to advise the clients to select documents that help establish physical presence but do not disclose alienage. If AILA members decide in consultation with a client that they should not carry evidence of their presence in the U.S., the client should consider gathering relevant documents in advance and storing them in a safe place. For more information on how to prepare for a possible enforcement action, read AILA's raids resources page. For more information on how to challenge an expedited removal order, see the Council's practice advisory on expedited removal.
Highlights from ICE Guidance
In addition to the implementation date, the ICE guidance has several important details on how expanded expedited removal will be implemented.
On July 22, 2019, DHS announced that it is significantly expanding expedited removal to apply throughout the United States to individuals who have been in the United States for less than two years. This practice alert provides information on the announcement, who it applies to, and what it means for AILA members and their clients.
Expedited removal is a fast track, summary process for removing certain noncitizens without a hearing before an immigration judge. By statute, expedited removal applies only to individuals who are inadmissible pursuant to INA §§212(a)(6)(C) and (a)(7) – that is, individuals who lack valid entry documents, who commit fraud or misrepresent a material fact to obtain admission, or who falsely claim U.S. citizenship.
On July 22, 2019, DHS published an advance copy of a Notice “Designating Aliens for Expedited Removal” in the Federal Register (“Notice”). It will be officially published in the Federal Register on July 23, 2019, and take effect the same day.
In the announcement, DHS states that it will expand expedited removal nationwide to individuals who are inadmissible under INA 212(a)(6)(C) or (7) and have been in the U.S. for less than 2 years. The announcement asserts that DHS is exercising the full remaining scope of its statutory authority to place noncitizens in expedited removal proceedings. The Notice is not a proposed or final rule, but rather notification to the public that it will be changing its policy. DHS asserts that it is not required to undergo notice-and-comment rulemaking but is nonetheless accepting comments for 60 days after July 23. Media outlets had reported earlier this year that the Administration was considering this plan.
Before the July 22 announcement, DHS had applied expedited removal to noncitizens inadmissible under INA §§212(a)(6)(C) and (a)(7) encountered within 100 air miles of the border who have not been physically present in the United States continuously for 14 days.
The July 22 announcement expands the use of expedited removal to cover the whole country and to apply to noncitizens who have been in the U.S. for under two years. Thus, beginning on July 23, DHS will apply expedited removal to all noncitizens who are inadmissible under to INA §§212(a)(6)(C) and (a)(7) and who have not been continuously physically present in the U.S. for at least two years, no matter where in the country ICE or CBP encounters them.
This significant expansion will mean that DHS officers in the interior of the country will be able to bypass immigration court and put noncitizens directly on a fast track to removal.
The Notice has very few details on how it will implement such a far-reaching, immense change. However, the following information may be helpful in order to understand the new policy:
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.
Cite as AILA Doc. No. 19072207.
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