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Practice Alert: Implementation of Expedited Removal Expansion

AILA Doc. No. 19072207 | Dated October 27, 2020

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.

October 16, 2020

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:

  1. (a) has been in the United States continuously for more than 14 days; or
    (b) was encountered and arrested by an immigration officer more than 100 air miles from the U.S. international land border, and
  2. who provides permission to share their information with us, please contact the litigation team at ERintake@aclu.org.

October 7, 2020

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.

September 22, 2020

On September 22, 2020, the D.C. Circuit Court denied en banc plaintiff’s petition for rehearing.

June 30, 2020

Congressional Research Service issued the following report: The Department of Homeland Security’s Nationwide Expansion of Expedited Removal.

June 23, 2020

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:

  1. The injunction remains in effect pending issuance of the mandate and the mandate will not issue until seven days after the expiration of the time to file a rehearing petition or, if a petition is filed, for seven days after the disposition of the petition. Therefore, at a minimum, the injunction will remain in place until August 14. The legal team is presently assessing options.
  2. The court remanded the case to the district court for further proceedings. As the district court did not rule on plaintiffs’ remaining claims, the legal team will continue to challenge the expansion of expedited removal on that basis.

September 27, 2019

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.

August 30, 2019

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.

  • Limited Anticipated Use of Expedite Removal:
    The memo notes that ICE anticipates that the expansion of expedited removal will be "primarily used by ICE in the Criminal Alien Program and worksite enforcement contexts."
  • Individuals Must Be Given Opportunity to Provide Evidence:
    The memo clearly states that individuals "shall" be given a "brief but reasonable opportunity" to obtain evidence of their physical presence or communicate with someone to obtain such evidence if they are not able to provide that evidence at the time of their encounter with ICE.
  • Affirmative Burden:
    The memo states that the noncitizen "bears the affirmative burden to show to the satisfaction of the encountering immigration officer that he or she has been physically present in the United States continuously for the two-year period immediately preceding the date of the determination of inadmissibility by providing evidence establishing the place, date, and manner of entry into the United States and continuity of presence since that time." Note that the guidance instructs officers that the noncitizen has the burden to establish continuous presence by providing evidence on the circumstances of entry and the continuity of presence since that time. The statute at INA § 235(b)(1)(A), however, dictates that a person is not subject to expedited removal if they were admitted to the United States or can establish physical presence for at least two years. Practitioners should weigh whether to attempt to push back on any attempt to force clients to prove both manner of entry and continuous presence, or whether to simply attempt to satisfy the officer, understanding that establishing manner of entry may help ICE prove alienage.
  • Physical Presence Records:
    The memo provides a non-exhaustive list of evidence that can be used to show the necessary physical presence requirement, including but not limited to: bankbooks, leases, deeds, licenses, bills, receipts, letters, birth records, church records, school records, employment records, evidence of prior law enforcement encounters or tax payments, and/or the person's oral statements.
  • Discretionary Factors:
    The memo specifies factors that discretionary officers could use when deciding whether to put someone into §240 removal proceedings instead of expedited removal proceedings. Those factors include: whether the case presents mental competency issues, whether the person is the sole caregiver of a USC child, whether the person would be eligible for relief in §240 removal proceedings, the duration of the person's physical presence in the U.S., the extent of the person's ties to the country, and whether ICE will seek to charge additional inadmissibility grounds (for example, due to the person's criminal history).
  • Officers Should Not Revisit Decisions:
    The memo states that officers shouldn't revisit a decision made before July 23, 2019, to place someone in INA §240 removal proceedings, even if they could be subject to expedited removal under the new rule.
  • Directions to Officers:
    The memo states that it is critical that the implementation of the rule should be "consistent with applicable law, carefully document, and reflective of sound enforcement decision-making." It also states that officers must undergo additional training before putting someone into expedited removal under the rule, and that there are required to be additional oversight mechanisms and supervisory review during initial implementation of the rule.
  • Tracking:
    The memo directs ICE systems to be able to track all cases processed under the new rule, so that reports can be pulled quickly.

Additional Resources

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.

Background

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.

Who Did Expedited Removal Apply to Prior to July 23, 2019?

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.

Who Will Expedited Removal Apply to Starting July 23, 2019?

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.

How Will the Expansion Be Applied and Implemented?

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:

  • Fear of Persecution Abroad: Anyone who is subject to expedited removal and expresses a fear of persecution abroad will be subject to current procedures for credible fear screenings.
  • Prosecutorial Discretion: DHS states that immigration officers may exercise their discretion to allow affected noncitizens to return voluntarily, withdraw applications for admission, or be placed in full removal proceedings before a judge. It plans to issue guidance on the use of this discretion but does not specify a timeline for the guidance or whether it will be made public.
  • Physical Presence Requirement: The Notice 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, but DHS does not include any information on what evidence it will accept to prove two years of continuous physical presence. It states only that DHS officers will place noncitizens in expedited removal if they have not shown “to the satisfaction of an immigration officer” that they have been “physically present in the United States continuously for the two year period immediately preceding the date of the determination of inadmissibility.”

Is Anyone Planning to Sue?

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.

What Resources Are Available to Assist Practitioners and Those Subject to the Policy?

Cite as AILA Doc. No. 19072207.