DHS expands expedited removal

23 Jul 19

UNITED STATES

The Department of Homeland Security published a notice in the Federal Register today that expands expedited removal procedures for deporting certain undocumented immigrants.

Key points:

  • The immigration statute allows DHS to use expedited removal—deportation without a hearing before an immigration judge—for certain individuals who have been present for less than two years in the U.S after their last entry. By statute, expedited removal is only permitted for individuals who are inadmissible on the grounds that they lack valid entry documents, have attempted to procure admission through fraud or misrepresentation, or have falsely claimed U.S. citizenship.
  • Under current practice, expedited removal has only been enforced against certain classes of undocumented immigrants: those apprehended at a designated air port of entry; those who arrived by sea and have been continuously present for less than two years; and those who arrive by land and are found within 100 miles of a U.S. border within 14 days of entering.
  • The notice, which takes effect immediately, authorizes DHS to expand expedited removal to the following additional categories:
    • persons who did not arrive by sea, who are encountered anywhere in the United States more than 100 air miles from a U.S. international land border, and who have been continuously present in the United States for less than two years; and
    • persons who did not arrive by sea, who are encountered within 100 air miles from a U.S. international land border, and who have been continuously present in the United States for at least 14 days but for less than two years.
  • Under the new policy, DHS will apply expedited removal throughout the country to individuals who have been present in the U.S. for less than two years, regardless of whether they entered by air, land or sea, and regardless of where they are apprehended.

BAL Analysis: The announcement expands the categories of undocumented individuals who may be placed in expedited removal proceedings. Those subject to expedited removal whom U.S. Immigration and Customs Enforcement encounter in the interior of the U.S. under this new expansion must prove to ICE that they have been continuously present in the U.S. for two years to avoid expedited removal and be provided a hearing with an immigration judge. The notice contains a 60-day public comment period, but states that the Administrative Procedures Act does not require a notice-and-comment period and therefore DHS will implement the new policy immediately. The American Immigration Council and American Civil Liberties Union have announced they plan to challenge the new policy in court.

This alert has been provided by the BAL U.S. Practice group. For additional information, please contact berryapplemanleiden@balglobal.com.

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