Homeland Security Implements Full Authority on Expedited Removals

 
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On July 22, 2019, the U.S. Department of Homeland Security (DHS) announced that it will expand the use of expedited removal. Specifically, DHS stated that it intends on applying expedited removal to non-citizens who have been present in the United States for less than two years. The changes went into effect the next day, July 23, 2019.

Expedited removal was introduced into law in 1996, and in effect since 1997, through the Illegal Immigration Reform and Immigrant Responsibility Act (IIRAIRA). The legal authority for expedited removal allows DHS to use it on individuals who are seeking entry to the United States or have entered the United States without inspection and have remained in the United States for less than two years. It permits DHS to deny an individual entry or apprehend an individual who has not been present for more than two years, and physically remove the person from the United States without a hearing before an Immigration Judge or other judicial review. Expedited removal is not applicable to lawful permanent residents (LPRs), and should not apply to individuals who have already been granted refugee or asylee status. Asylum seekers should, in practice, be referred to an asylum officer to be interviewed about whether they have a “credible fear” of persecution.

In previous years, DHS took the position that non-citizens who cross into the United States without permission by land can be deported by DHS, without the opportunity to see an Immigration Judge in removal proceedings, if they are arrested within 100 miles of a U.S. border within the first 14 days of their entry. Individuals who arrive by sea can be deported without being sent to Immigration Court if they are unable to demonstrate that they have been living in the United States for two years or more. DHS’s new rule waives all geographical limitations. Expedited removal proceedings would therefore apply to all undocumented immigrants who have been in the country for less than two years. This means that DHS is implementing a full use of the 1996 expedited removal law. This is of particular concern to undocumented migrants claiming asylum here in the United States who have entered the United States recently and have remained here for less than two years.

Opposing DHS, the American Immigration Council and the American Civil Liberties Union announced that they plan to contest the legality of DHS’s new interpretation and rule.

The expedited removal process raises some legal concerns. First, the DHS officer making the decisions in an expedited removal case often has unchecked authority and limitless power. They are not subject to judicial review or an appeals process. Essentially, the DHS officer is both the prosecutor and the decision maker. Next, the non-citizen is required to prove that he or she should not be given an expedited removal, which could be difficult if they do not have legal representation or communication with someone who can assist them. Given the quick nature of the expedited removal process, there is a good chance that, as is often the case, the person will have to represent themselves alone and without an understanding of the procedures involved. Finally, the process has no available appeal procedure, so the chances of a DHS error being corrected are relatively low.

Do you believe that the new expedited removal may apply in your case? Do you have a loved one who may be subject to the new rule? Contact Ibrahim Law Office, an immigration law firm, today, to schedule a consultation.

DHS, IIRAIRACanon Mikho