New Expedited Removal Policy

Created in 1996 under President Bill Clinton, expedited removal is a process by which low-level immigration officers can quickly deport certain noncitizens who are undocumented or have committed fraud or misrepresentation. Since 2004, immigration officials have used expedited removal to deport individuals who arrive at our border, as well as individuals who entered without authorization if they are apprehended within two weeks of arrival and within 100 miles of the Canadian or Mexican border.

On July 23, 2019, Department of Homeland Security (DHS) announced that it is significantly expanding expedited removal, starting “on or about” September 1, 2019, to apply throughout the United States to individuals who have been in the United States for less than two years. The July 23 announcement expands the use of expedited removal to cover the whole country and to apply to noncitizens who have been in the United States for under two years. Thus, DHS will now apply expedited removal to all noncitizens who are inadmissible under relevant regulations and who have not been continuously physically present in the United States for at least two years, no matter where in the country Immigration and Customs Enforcement (ICE) or Customs and Border Protection (CBP) encounters them. This significant expansion will mean that DHS officers in the interior of the country will be able to bypass immigration court and put noncitizens directly on a fast track to removal.

In addition to the implementation date, the ICE guidance has several important details on how expanded expedited removal will be implemented:

• Limited Anticipated Use of Expedite Removal:
  The memo notes that ICE anticipates that the expansion of expedited removal will be "primarily used by ICE in the Criminal Alien Program and worksite enforcement contexts."

• Individuals Must Be Given Opportunity to Provide Evidence:
  The memo clearly states that individuals "shall" be given a "brief but reasonable opportunity" to obtain evidence of their physical presence or communicate with someone to obtain such evidence if they are not able to provide that evidence at the time of their encounter with ICE.

• Affirmative Burden:
  The memo states that the noncitizen "bears the affirmative burden to show to the satisfaction of the encountering immigration officer that he or she has been physically present in the United States continuously for the two-year period immediately preceding the date of the determination of inadmissibility by providing evidence establishing the place, date, and manner of entry into the United States and continuity of presence since that time." Note that the guidance instructs officers that the noncitizen has the burden to establish continuous presence by providing evidence on the circumstances of entry and the continuity of presence since that time. The relevant statute, however, dictates that a person is not subject to expedited removal if they were admitted to the United States or can establish physical presence for at least two years.

• Physical Presence Records:
  The memo provides a non-exhaustive list of evidence that can be used to show the necessary physical presence requirement, including but not limited to: bankbooks, leases, deeds, licenses, bills, receipts, letters, birth records, church records, school records, employment records, evidence of prior law enforcement encounters or tax payments, and/or the person's oral statements.

• Discretionary Factors:
  The memo specifies factors that discretionary officers could use when deciding whether to put someone into §240 removal proceedings instead of expedited removal proceedings. Those factors include: whether the case presents mental competency issues, whether the person is the sole caregiver of a US Citizen child, whether the person would be eligible for relief in §240 removal proceedings, the duration of the person's physical presence in the U.S., the extent of the person's ties to the country, and whether ICE will seek to charge additional inadmissibility grounds (for example, due to the person's criminal history).