When a foreign national arrives at a U.S. port of entry and applies for entry, a U.S. Customs and Border Protection (CBP) officer will determine whether he is admissible to the U.S. In some cases, the CBP officer may deny admission and issue an expedited removal order, forcing the person to leave the U.S. immediately or on the next available flight. An expedited removal order may be issued against a foreign national who lacks proper documentation or is found to have committed fraud or willful misrepresentation of facts to gain admission to the U.S. Between ports of entry, in some situations, an expedited removal order may be issued against those who illegally entered the U.S. and cannot prove continuous presence for more than two years.
To Whom Does Expedited Removal Apply?
From April 1997 to November 2002, expedited removal applied only to foreign nationals arriving at U.S. ports of entry. In November 2002, the Bush Administration expanded expedited removal to those arriving by sea and are not admitted or paroled. In August 2004, expedited removal was again expanded to those who are present without being admitted or paroled, are encountered by an immigration officer within 100 air miles of the U.S. international southwest land border, and cannot show that they have been present in the U.S. for more than two years.
How Does the Expedited Removal Process Work?
As the agency responsible for immigration inspections at U.S. borders and ports of entry, CBP has the power to issue expedited removal orders. Officers are instructed to only charge those grounds of inadmissibility that can be fully supported by the evidence and to consider, on a case-by-case basis, whether the person qualifies for any appropriate waivers, withdrawal of application for admission, or deferred inspection to resolve the ground of inadmissibility, rather than issue an expedited removal order.
The expedited removal process can only be used when CBP officers have determined that a person is inadmissible for one, or a combination of, the following reasons:
Fraud or misrepresentation of fact to gain admission to the U.S.
- Falsely claiming U.S. citizenship.
- Lack of a valid, unexpired immigrant visa or other suitable entry document, if the person is an intending immigrant.
- Lack of a passport valid for a minimum of six (6) months from the date of the expiration of the initial period of stay, if the person is a nonimmigrant.
- Lack of a valid nonimmigrant visa or border crossing card at the time of application for admission, if the person is a nonimmigrant.
When an expedited removal order is issued, there are no further hearings or review, unless the person states his intent to apply for asylum or indicates a fear of persecution in his home country. Those facing expedited removal have no right to counsel or to a hearing before an immigration judge. CBP officers have complete and exclusive authority to conduct the expedited removal process, which is usually done within a matter of hours.
Before ordering the person removed, CBP inspectors and other DHS immigration officers must create a detailed record of the facts of the case and statements made by the person. The person must be advised of the charges against him and receive the opportunity to respond to those charges in a sworn statement. The officer should question the person about his identity, alienage, and charges of inadmissibility, and record the person’s responses. These statements are noted in the Record of Sworn Statement, which can provide critical information when challenging an expedited removal order.
Officers must also ask series of “protection questions” to identify anyone who fears returning to his home country. Once a person expresses fear of return, he is supposed to be detained by U.S. Immigration & Customs Enforcement (ICE) and interviewed by an asylum officer from U.S. Citizenship & Immigration Services (USCIS). The asylum officer will then make a “credible fear” determination of the person’s claim. Those found to have a “credible fear” are referred to an immigration judge, who may review their defensive asylum application. Upon request, an immigration judge may also review the USCIS asylum officer’s determination that the person lacks a credible fear of persecution. The review must be completed “as expeditiously as possible, to the maximum extent practicable within 24 hours, but in no case later than 7 days” after the asylum officer’s finding of no credible fear.
Foreign nationals subject to expedited removal must leave immediately or be detained until they are removed from the United States. They are not eligible to be released on bond. They may only be released due to medical emergency or if needed for law enforcement purposes.
Those who claim a legal right to live in the United States based on citizenship, legal permanent residence, asylee or refugee status, are entitled to additional procedural protections. For example, they may receive deferred inspection or appear before an Immigration Judge to challenge the basis for removal or file an application for relief against removal.
What are the Consequences of an Expedited Removal Order?
An expedited removal order, in and of itself, carries a five (5) year bar to returning to the U.S. This means the person may not re-enter the U.S. for a minimum of five (5) years from the date of expedited removal unless they file a Form I-212 and is granted permission to reapply for admission to the U.S. Furthermore, those who were found to have committed fraud or misrepresentation are actually barred for a lifetime. These persons must file a Form I-212 and receive permission to reapply for admission, plus obtain the appropriate fraud waiver to enter the U.S. within five (5) years of the expedited removal order.
How Does One Challenge an Expedited Removal Order?
A court or judge may not review an expedited removal order. The person may, however, file a request for review to CBP directly with supporting documentary evidence showing that the expedited removal order is improper. In general, the challenge should be filed within 30 days of the decision. Based on the information and evidence provided, the CBP may exercise its discretion and overturn its prior expedited removal order.
The person may also file a complaint or apply for redress through the Department of Homeland Security Traveler Redress Inquiry Program (DHS TRIP). DHS TRIP routes the redress request to the appropriate office for review and adjudication. When the person applies for redress, he will be assigned a record identifier or Redress Control Number. Unfortunately, it can take many months to obtain a resolution through this process.
Because the expedited removal process offers limited due process rights in most cases, the foreign national might consider withdrawing his application for admission if the CBP officer offers this option. The person may then return to his home country to obtain the proper documentation for admission into the U.S. But when the expedited removal order is due to the CBP’s error or when the person can claim a right to reside in the United States or a fear of persecution in his home country, a challenge is in order.
Nothing in this article should be taken as legal advice for an individual case or situation. The information is intended to be general and should not be relied upon for any specific situation. For legal advice, consult an attorney experienced in immigration law.
About Igbanugo Partners International Law Firm
Igbanugo Partners Int'l Law Firm is based in Minneapolis, Minnesota. It focuses on (1) U.S. immigration law and (2) international trade law in Sub-Saharan Africa.
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