EXPEDITED REMOVAL PROCESS SUPPORTS U.S. GOVERNMENT’S EFFORTS TO CONTROL THE NATION’S BORDERS, BUT OMITS JUDICIAL PROCESS FOR CERTAIN NONCITIZENS

Igbanugo Partners, Int’l Law Firm, Igbanugo Partners
Published 06/01/2007
Mshale - The African Community Newspaper

In certain situations, noncitizens may be refused admission at U.S. ports of entry or removed from the United States without judicial process under expedited removal procedures. As part of the 1996 amendments to the Immigration and Nationality Act, expedited removal procedures allow U.S. Customs and Border Protection (CBP) officers to refuse admission to “arriving aliens” suspected of lacking valid travel documents or attempting entry through fraud or misrepresentation. The CBP may also order the immediate return of a noncitizen to his country of nationality or of last embarkation, if the CBP can establish that the person is in the United States unlawfully. An expedited removal order carries a five-year bar on returning to the United States. Therefore, anyone who has an expedited removal order must obtain a waiver of inadmissibility before he can re-enter the United States lawfully.

Congress adopted the expedited removal system to cut down on illegal immigration and to protect the nation’s borders. The policy, which went into effect on April 1, 1997, is a radical departure from prior law because it gives unprecedented authority to CBP officers to issue removal orders that are often unreviewable. Previously, all removal orders were issued by immigration judges and were subject to administrative and judicial review. Under prior law, noncitizens could not be returned to their home countries based solely on a CBP officer’s decision. Instead, they had the right to appear before an immigration judge to present evidence of their admissibility or their eligibility for relief from removal. They also had the right to appeal an immigration judge’s unfavorable decision to the Board of Immigration Appeals and the federal courts. This judicial process takes 90 days or more.

As the U.S. government continues to crack down on illegal immigration, it is expanding its use of expedited removal procedures. Expedited removal omits the judicial process, cutting processing time by half or two-thirds. During fiscal years 2002 to 2004, there was an average of 40,000 expedited removals per year at U.S. ports of entry. During fiscal year 2005, the CBP expanded its use of expedited removal to Border Patrol apprehensions between the ports of entry, resulting in more than 71,000 removals in one year. Expedited removal may occur at the ports of entry or within the United States.

At the ports of entry, noncitizens must apply for admission at primary inspection by a CBP officer. If the officer needs more information to determine the applicant’s eligibility for entry into the United States, the applicant must go through secondary inspection. This process involves more detailed questions and investigation to determine the applicant’s eligibility for entry. When the CBP officer is unable to determine the immigration status of the arriving traveler, the port of entry may schedule the traveler to report for Deferred Inspection at a later date. The CBP may issue an expedited removal order at primary inspection, secondary inspection or at Deferred Inspection.

When the CBP officer issues a removal order, a senior-level officer must review the decision. The expedited removal process, however, is completely closed to the public. There is no opportunity for attorneys, family members, or other interested persons to be present at the secondary inspection interrogation between the CBP officer and the person seeking admission. There is also no right to counsel at Deferred Inspection. Because the process is insulated from litigation and judicial review, Congress included additional procedures for two groups of people: asylum seekers and persons claiming lawful U.S. status (i.e., citizens, lawful permanent residents, etc.)

Under expedited removal laws, asylum seekers are screened and are admitted to apply for asylum if they show a "credible" fear of persecution in their country. The CBP officer must ask questions to determine whether a person fears persecution or intends to apply for asylum. If so, the officer may not ask any more questions but must refer the person to an asylum officer for an interview. Even if the person is found to have a credible fear of persecution, he may remain in detention throughout the application process. Those who are found not to have a credible fear are ordered removed. At the asylum seeker's request, an immigration judge may review the asylum officer's decision, but there is no further review.

Persons who claim lawful U.S. status are entitled to an immigration judge's review of the CBP’s decision. The immigration judge's decision is final and is not subject to review. Furthermore, if the CBP determines that the person’s documentation of lawful status is fraudulent or was fraudulently obtained, the CBP may remove the person immediately under expedited removal procedures.

In a recent case, Igbanugo Partners challenged the CBP’s decision to subject a client to expedited removal. The client had previously entered the United States multiple times on an H-1B visa, but the CBP refused his admission on his last entry. The CBP claimed he fraudulently obtained the visa. When the CBP threatened to order his expedited removal, Igbanugo Partners filed a habeas corpus petition and an emergency motion for a temporary restraining order with the U.S. District Court of Minnesota. A few minutes before the court hearing, the CBP agreed to release the client and to withdraw its expedited removal order. The client is now in removal proceedings before the immigration court, where he will seek to terminate proceedings or apply for relief from removal.