Featured Issue: Expedited Removal

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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.

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Cite as AILA Doc. No. 19073000.