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Expedited Removal

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Immigrants' Rights Update, Vol. 20, Issue 1, March 23, 2006

DHS Announces Latest in Series of Expedited Removal Expansions

Entire U.S. Border Now Covered

The U.S. Dept. of Homeland Security has announced that it is now using expedited removal along the entire U.S. border, including in all coastal areas adjacent to the country's maritime borders.  This most recent expansion of expedited removal, the use of which the DHS has expanded incrementally over the past few years, represents the most dramatic expansion to date.  The latest development is particularly troubling in light of findings reached by the U.S. Commission on International Religious Freedom (USCIRF), in its extensive study of expedited removal, that the DHS's implementation of the program is seriously deficient.

Expedited removal from the U.S., a procedure established by the Illegal Immigration Reform and Immigrant Responsibility Act of 1996, allows immigration officers to issue expedited removal orders against non-U.S. citizens, resulting in removals that, except in very limited circumstances, are carried out with no hearing or review by an immigration judge.  Under the statute, the procedure may be used against noncitizens, except those from Cuba, who have not been admitted or paroled into the U.S., have been in the U.S. for less than two years, and are determined to be inadmissible for either (1) having used fraud or misrepresentation to procure an immigration benefit or (2) lacking a valid visa or other entry document (two of the grounds of inadmissibility).  Noncitizens subject to expedited removal who indicate an intention to apply for asylum or who assert a fear of persecution or torture are to be interviewed by an asylum officer and, if found to have a "credible fear," must be referred to an immigration judge.  Individuals subject to expedited removal who claim lawful permanent resident, refugee, or asylee status or U.S. citizenship also may have their claims reviewed by an immigration judge.  Individuals placed in expedited removal proceedings are detained without bail, and they are not eligible for parole except in very limited circumstances (i.e., as a matter of discretion for a medical emergency or for a law enforcement purpose).

The former Immigration and Naturalization Service initially implemented expedited removal only against noncitizens arriving at ports of entry.  In 2002 the agency expanded the application of expedited removal to noncitizens who (1) entered the U.S. by sea, either by boat or other means, (2) were not admitted or paroled into the U.S., and (3) have not been continuously present in the U.S. for at least two years. 67 FR 68,924-5 (Nov. 13, 2002).  In 2004 the DHS published an immediately effective notice in the Federal Register to expand the application of expedited removal to noncitizens who are encountered within 100 miles of the border and who entered the U.S. without inspection less than 14 days before the time they are encountered. 69 FR 48,877-81 (Aug. 11, 2004).  The notice stated that, as a matter of prosecutorial discretion, the DHS would apply the expansion "only to (1) third-country nationals [not from Mexico or Canada] and (2) to Mexican and Canadian nationals with histories of criminal or immigration violations, such as smugglers or aliens who have made numerous illegal entries."  It also indicated that officers could exercise discretion not to commence expedited removal proceedings based on individual equities.

Although the 2004 Federal Register notice broadly authorized the use of this expanded form of expedited removal, the agency has implemented it in more limited stages due to resource limitations, issuing press releases to announce successive expansions in practice.  According to the DHS, the agency began implementing expedited removal against noncitizens apprehended within the U.S. in the Tucson (Arizona), McAllen (Texas), and Laredo (Texas) Border Patrol Sectors.  Then, in September 2005, the agency expanded the implementation to all nine Border Patrol sectors along the southwest border.  According to the latest announcement, implementation of expedited removal now has expanded to encompass all areas within 100 miles of the border, including coastal areas.

That the DHS is expanding expedited removal at this time is particularly troubling, in light of its failure to address publicly the recommendations of the USCIRF.  Congress established the USCIRF in 1998 as an independent and bipartisan federal commission, mandating it to conduct a study of expedited removal to determine how the procedure was affecting asylum-seekers.  The USCIRF employed experts who conducted an extensive study, including the direct observation of expedited removal interviews.  The USCIRF issued its Report on Asylum Seekers in Expedited Removal in Feb. 2005.  The study found serious deficiencies in the implementation of expedited removal.  Among other problems, immigration officers frequently failed to provide noncitizens with required information regarding the availability of protection under U.S. law for persons fearing persecution or torture, and often failed to ask noncitizens about their reasons for leaving their home country.  Officers were also observed to discourage noncitizens from pursuing asylum claims.  The study called for the DHS to implement and monitor quality assurance procedures.