Expedited Removal and Asylum
Author: New York Asylum Attorney Alena Shautsova
Expedited removal is a form of removal proceedings during which a person who is coming to the US is being deported by DHS without seeing a judge. Such person is also called an arriving alien: a term of art in Immigration law that has its consequences.
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).
Most often, expedited removal is being used at the airports against people who are coming to the US on a non-immigrant visa but a CBP officer determines that this person is an intending immigrant who does not have an immigrant visa. Arriving aliens as they are called by the DHS are subject to mandatory detention. So, if a CBP officer determines that a B1/B2 holder is really intending to stay in the US indefinitely, this person will be detained.
Another common way when the DHS will use the expedited removal process is when a person is apprehended by the DHS officers within 100 miles from the border within the 14 days of the arrival into the US. Of course, such a person is subject to the removal only if entered the country without inspection.
Subjects of the expedited removal cannot see a judge. They would be removed immediately, unless they express fear of returning back to their home country or a fear of torture. At this point they would be referred to the Asylum Officer who should conduct a credible fear or a reasonable fear (in case a person has already been removed form the US on a prior occasion) interview. See 8 C.F.R. § 208.31(b) and 8 C.F.R. § 241.8(e).If the asylum officer determines that the subject possess the fear, then the person can be paroled into the US and freed from detention. If not, the person will be removed unless the judge overrules the officer’s determination. Id. § 208.31(g).
If the person passes the interview, a Notice to Appear will be issued and the bond will be established. Upon information, the current guidelines for the DHS states that the bond for those who are apprehended at the border should be $7,500. This determination can also be appealed to the judge.
Aliens who have been expeditiously removed are
barred from returning to the United States for five years. They cannot return to the US earlier than 5 years without granted application for permission to re-apply for admission.