Featured Issue: Expedited Removal

Created in 1996, expedited removal is a process by which low-level immigration officers can quickly deport certain noncitizens who are undocumented or have committed fraud or misrepresentation. Since 2004, immigration officials have used expedited removal to deport individuals who arrive at our border, as well as individuals who entered without authorization if they are apprehended within two weeks of arrival and within 100 miles of the Canadian or Mexican border.

On July 23, 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.

On August 6, 2019, the American Immigration Council, the American Civil Liberties Union (ACLU), and the law firm of Simpson Thatcher & Bartlett LLP filed a lawsuit in the U.S. District Court for the District of Columbia, challenging the expansion of expedited removal. Make the Road New York v. McAleenan, Case 1:19-cv-02369. Plaintiffs are three organizations with members who are subject to the new rule. Plaintiffs claim that the new rule violates the Due Process Clause of the Fifth Amendment, the Administrative Procedure Act, and federal immigration laws. Plaintiffs have asked the court to prevent DHS from continuing to apply the rule.

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.

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

Before the July 23 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 23 announcement expands the use of expedited removal to cover the whole country and to apply to noncitizens who have been in the United States 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 United States 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.

DHS Notice Expanding the Categories of Persons Eligible for Expedited Removal (84 FR 35409, 7/23/19)

• The notice, including the new designation, is effective on July 23, 2019. Comments may be submitted on or before September 23, 2019.

AILA Statements and Resources

• AILA Submits Comments on Expanding the Categories of Persons Designated Eligible for Expedited Removal – September 23, 2019
• AILA Press Release: AILA: DHS Attempts Massive Expansion of Unilateral Deportation Power – July 22, 2019
• AILA Quicktake #271: DHS Announces the Expansion of Expedited Removal – July 22, 2019

Attorney Resources

• Practice Alert: Implementation of Expedited Removal Expansion
• National Immigration Forum: Expanded Expedited Removal: What It Means and What to Do
• Call for Examples: Clients Subject to Expanded Expedited Removal
• ILRC: Toolkit to Assist People Facing Expanded Expedited Removal – July 26, 2019
• American Immigration Council: A Primer on Expedited Removal – July 22, 2019
• American Immigration Council: Expedited Removal: What Has Changed Since Executive Order No. 13767, Border Security and Immigration Enforcement Improvements (Issued on January 25, 2017)

Government Memos and Guidance

• ICE Releases Memo on Implementation of July 2019 Designation of Individuals Subject to Expedited Removal – July 24, 2019

Litigation

• American Immigration Council, ACLU, and Simpson Thatcher & Bartlett LLP: Make the Road New York v. McAleenan, Case 1:19-cv-02369
  • Complaint – August 6, 2019
  • Plaintiffs' Memorandum in Support of Motion for Preliminary Injunction - August 9, 2019

Advocacy Resources

• Refugee International: Addressing the Legacy of Expedited Removal: Border Procedures and Alternatives for Reform – May 13, 2021
• CRS Legal Sidebar: DHS’s Nationwide Expansion of Expedited Removal – July 26, 2019
• American Immigration Council Special Report: The Perils of Expedited Removal: How Fast-Track Deportations Jeopardize Asylum Seekers – May 9, 2017
• ACLU: American Exile: Rapid Deportations That Bypass the Courtroom – December 2014
  • Expedited Removal – The Expedited Removal Statute and Its History

Media Coverage

• NPR: Trump Administration Expands Fast-Tracked Deportations Beyond Borders – July 27, 2019
• Bustle: The New Expedited Removal Rule Gives ICE More Power — Here's How You Can Protect Yourself – July 26, 2019
• American Immigration Council’s Immigration Impact: Trump Implements Nationwide ‘Send Them Back’ Immigration Policy – July 22, 2019
• The Washington Post: Trump Administration to Expand Its Power to Deport Undocumented Immigrants – July 22, 2019

Cite as AILA Doc. No. 19073000.