Expedited Removal
Who is Subject to Expedited Removal?
- An alien who arrives at the border without being admitted or paroled and is unable to demonstrate that he or she had been continuously physically present in the United States for the 2-year period immediately prior to the determination of inadmissibility.
- An alien who arrives at the border and is found to be inadmissible for misrepresenting a material fact or for falsely claiming citizenship.[1]
- An alien who arrives at the border and is not in possession of a valid document for admission or parole to the United States.
Please note that the above provisions do not apply to Cubans who are arriving in the United States.[3]
Under certain circumstances, aliens who are not “arriving aliens” may be subject to expedited removal. An alien who is found within 100 miles of a U.S. border who has not been admitted or paroled and who cannot demonstrate continuous physical presence in the United States for the previous 14 days will be subject to the expedited removal procedure.[4]
Exceptions to Expedited Removal
- An alien who establishes a credible fear of persecution after removal will be referred for further consideration for eligibility for asylum.
- An alien who was paroled into the United States prior to April 1, 1997.
- An alien who is a minor and has not engaged in activity that would qualify as an “aggravated felony” before a Department of Homeland Security (DHS) officer, who has not been convicted or adjudicated delinquent of a crime that qualifies as an “aggravated felony” either in the United States or abroad, and who has not been previously removed, excluded, or deported from the United States.[5]
- An alien who is applying for admission under the Visa Waiver Program and who is seeking asylum.[6]
The expedited removal procedure does not apply to U.S. citizens, lawful permanent residents, and persons who have been granted asylee or refugee status.[8] A person with a claim to any of these statuses should notify DHS immediately. However, it is important to note that a lawful permanent resident or an asylee or refugee may still be subject to regular removal proceedings.
Expedited Removal Detention
- Serious medical conditions;
- Pregnancy;
- If the alien is juvenile and can be released to a relative who is in or not in detention (or a non-relative who arrived concurrently with the minor and is in detention);
- If the alien is a witness in an investigation or prosecution;
- If it is determined that the continued detention of the alien is not in the national interest.[9]
Credible Fear Determination
If an alien establishes that he or she has a credible fear of persecution or torture, he or she will be placed in regular removal proceedings where an immigration judge will be able to consider his or her asylum claims. This applies even if the alien appears to be subject to a bar for applying for asylum. An alien who establishes credible fear will have the opportunity to demonstrate eligibility for parole within 7 days of the asylum interview.[13]
If the alien fails to establish credible fear in the asylum interview, he or she will have the option of requesting review of the negative determination by an immigration judge by filing a Form I-869.[14]
Expedited Removal Advice
If an alien determines that he or she is clearly subject to expedited removal and has no avenue for resisting, the alien has the option to request to withdraw his or her application for admission in hope of being permitted to depart the United States voluntarily rather than being removed.[15]
Please read our comprehensive article to learn more:
- Inadmissibility grounds for falsely claiming a material fact are found in INA §212(a)(6)(C)(i). Inadmissibility grounds for falsely claiming citizenship are found in INA § 212(a)(6)(C)(ii).
- 67 FR 68924-26 (Nov. 13, 2002)
- INA § 235(b)(1)(F)
- Notice Designating Aliens for Expedited Removal, 69 FR 48877 (Aug. 11, 2004) [for the southern border]
- Memo, Virtue, Acting Exec. Comm., HQ 50/5.12, 96 Act. 054 (Aug. 21, 1997), published on AILA InfoNet at Doc. No. 97082191
- 8 C.F.R. § 217.4(a)
- Matter of E-R-M- & L-R-M-, 25 I&N 520 (BIA 2011) ; but see Crane v. Napolitano, 920 F. Supp. 2d 724 (N.D. Tex. 2013) [holding that the language of the statute limits discretion]
- 8 C.F.R. § 245.3(b)(5)
- 8 C.F.R. § 212.5(b)
- 8 C.F.R. § 212.5(d)
- INA § 235(b)(1)(A)(ii)
- 8 C.F.R. § 208.30(c)(4)
- Memo, Morton, Asst. Sec. ICE, Parole of Arriving Aliens Found to Have a Credible Fear of Persecution or Torture (Dec. 8, 2009),published on AILA InfoNet at Doc. No. 09121760
- 8 C.F.R. § 208.30(g)
- INA § 235(a)(4)
Kurzban, Ira J. Kurzban's Immigration Law Sourcebook: A Comprehensive Outline and Reference Tool. 14th ed. Washington D.C. ALIA Publications, 2014. 180-83, Print. Treatises & Primers.