U.S. Court of Appeals Allows Trump Administration to Expand Use of Expedited Removal

This week, the U.S. Court of Appeals for the D.C. Circuit in Make the Road New York v. Wolf, ruled that the Trump Administration can move forward with an expansion of expedited removal within the United States.

In July 2019, the Trump Administration published a new rule in the federal registrar (84 Fed. Reg. 35,409 July 22, 2019) to expand expedited removal inside U.S. borders. Shortly thereafter, a group of associations representing immigrant communities filed suit and the U.S. District Court in Washington D.C. ordered an injunction that temporarily stopping the expansion of expedited removal while the Court considered the legality of the Trump Administration’s maneuver to expand the expedited removal program. The Trump Administration appealed to the U.S. Court of Appeals for the District of Colombia asking that the Court of Appeals overturn the lower Court’s injunction and allow expanded expedited removal to move forward.

On June 23, 2020, the U.S. Court of Appeals for the D.C. Circuit’s 2-1 decision overturned the lower court injunction, permitting the Trump Administration to implement its expansion of expedited removal.

What is expedited removal?

Expedited removal is an administrative procedure that allows the Department of Homeland Security (DHS) to remove or deport an individual without any type of court proceeding. Under expedited removal, Immigration & Customs Enforcement (ICE) can apprehend and immediately deport someone who is present in the United States without permission and cannot show that they have been continuously present in the United States for two years or more. The decision is made by an ICE officer and there is no right to appeal or have a judge review the decision.

Expedited removal was created in 1996 by the Illegal Immigration Reform and Immigrant Responsibility Act and signed into law by Bill Clinton.

Since its inception, the use of expedited removal was limited to individuals at ports of entry and at or near our borders, or individuals who were apprehended by DHS within 14 days of their arrival to the United States, and within 100 miles of an international border.

What does it mean that expedited removal will now be expanded?

The court’s decision will now allow expedited removal to be used across the country. It will no longer be limited to just within 100 miles of the United States border. Anyone arrested by ICE or other immigration authority anywhere in the United States may be subject to expedited removal unless they can demonstrate they are lawfully present in the United States or have been physically present in the United States for 2 years.

Who can be subject to expedited removal?

Under the law, the government can use expedited removal against an individual who:

1. Is inadmissible for entering the United States without proper documentation or who committed fraud or misrepresented a material fact to obtain admission, or who falsely claimed U.S. citizenship;

2. Has not been physically present in the United States for at least 2 years, no matter where they are arrested by immigration officials.

What will happen if a person is arrested by ICE under the new expanded expedited removal?

If an individual is arrested by ICE and cannot show they have lawful status in the United States, and have been physically present in the United States for at least 2 years, they can be detained and removed from the United States immediately. The individual will not be able to present their case in front of an immigration judge. There is no appeal of an expedited removal order.

Is there anyway to stop an expedited removal?

If an individual is subjected to expedited removal, the only way to stop their removal from the United States is if they have a credible fear of returning to their home country. If an individual expresses a fear of returning to their home country they should be permitted to credible fear interview. If an immigration officer finds the individual has a credible fear of returning to their home country they will then be permitted to present their case in front of an immigration judge.

What should people do to make sure ICE does not put them in expedited removal?

DHS officers (including ICE and CBP officials) have a great deal of power in administering expedited removal orders.

First, it is essential that individuals who encounter ICE or apprehended by ICE or other immigration authority KNOW THEIR RIGHTS.

Second, individuals should carry proof of their lawful immigration status and/or physical presence in the United States for at least 2 years.

Third, people in the USA without lawful status should maintain a file with evidence of their physical presence in the USA for at least 2 years (tax returns, school records/diplomas, paystubs or other employment records, medical records, driver’s licenses, other state identification documents). This file should be kept in a location that is easily accessible to other family members if ICE apprehends their undocumented family member.

The lack of oversight in the execution of expedited removal by ICE officers and the inability to appeal or review an expedited removal order present serious due process concerns. These problems, coupled with overwhelming evidence of racial bias in policing and enforcement, present another attack on our immigrant communities.

For more information on the expansion of expedited removal, and how it affects you, or your family please contact Kolko & Casey, P.C.