Administration Expands Expedited Removal

Will better allow for use of limited immigration-enforcement and judicial resources

By Andrew R. Arthur on July 24, 2019

On July 23, 2019, the Department of Homeland Security (DHS) issued a Notice in the Federal Register expanding expedited removal under section 235(b) of the Immigration and Nationality Act (INA) to any alien who is apprehended after entering the United States without admission or parole and who has not been physically present in the United States for two years, in accordance with authority provided by Congress under section 235(b)(1)(A)(iii)(II) of the INA. This action is long overdue.

As the Notice explains:

Presently, immigration officers can apply expedited removal to aliens encountered anywhere in the United States for up to two years after the alien arrived in the United States, provided that the alien arrived by sea and the other conditions for expedited removal are satisfied. For aliens who entered the United States by crossing a land border, the Secretary of Homeland Security has exercised his discretion under the INA to permit the use of expedited removal if the aliens were encountered by an immigration officer within 100 air miles of the United States international land border and were continuously present in the United States for less than 14 days immediately prior to that encounter.

In April 2019, my colleague Dan Cadman called on the president to take this step:

At the moment, let me stay on focus here and suggest that while your advisors are looking around for new ideas to keep the momentum going, whether on the border or in the interior, there is something that they seem to have been overlooking from Day 1, and it's expedited removal (ER). . . . ER permits federal officers to quickly and efficiently remove recent illegal entrants without the need to further clog up the docket of the immigration courts, which are tottering on the verge of collapse from overload.

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Stop and consider that expanding ER not only serves enforcement purposes within the interior, it also helps to some extent with border operations as well, because those aliens who are not apprehended immediately at the border — and who therefore don't bother to make "credible fear" claims, however flimsy — have for all intents and purposes shown that they in fact have nothing to fear, and if they attempt to belatedly make the claim after being arrested in the interior and processed for ER, the logical question to ask, which puts the lie to the claim, is a simple one: Why didn't you do that at the border?

Mr. Cadman’s points are well taken. Expanding expedited removal preserves limited (and overburdened) immigration-court resources and also supports border enforcement. It particularly does the latter by making it less likely that an alien who has evaded border enforcement to live and work freely in the United States will be able to extend his or her illegal presence in this country through the seemingly endless immigration-court (and appeal) process. It will also will limit the potential immigration relief that those aliens may seek to asylum, withholding of removal under section 241(b)(3) of the INA (which is similar to asylum, but requires an applicant to meet a higher burden of proof and does not provide a path to citizenship), and protection under Article 3 of the Convention Against Torture (CAT).

As the Notice states, this authority was originally only applied (in 1997) to aliens apprehended at ports of entry and those interdicted in international and United States waters. In 2002, it was expanded to aliens who arrived by sea and had not been admitted or paroled, and who had been in the United States for less than two years before being deemed inadmissible. In 2004, it was expanded further to aliens encountered within 100 air miles of the border and within 14 days of their date of entry, without regard to how those aliens had arrived, if the aliens had not been admitted or paroled into the United States.

It was not expanded to the rest of the United States or to aliens who had been present for less than two years at that time "in the interest of focusing limited resources 'upon unlawful entries that have a close spatial and temporal nexus to the border...'" The Notice states that:

In recent years, increasing numbers of aliens have been detained after being apprehended within the interior of the United States, necessitating a change in the focus of limited government resources to include the use of expedited removal proceedings for aliens apprehended within the U.S. interior, as well as near the border.

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In light of the ongoing crisis at the southern border, the large number of aliens who entered illegally and were apprehended and detained within the interior of the United States, and DHS's insufficient detention capacity both along the border and in the interior of the United States, DHS is issuing the New Designation to use more effectively and efficiently its limited resources to fulfill its mission to enforce the immigration laws and ensure the security of the Nation's borders.

With respect to the conservation of detention resources, the Notice explains that in FY 2018, "the average time in DHS custody for aliens placed in expedited removal was 11.4 days," while the average detention time that year for inadmissible aliens encountered in the interior the United States was 51.5 days. Therefore:

Under the New Designation, ICE will be able to use expedited removal for certain aliens who it arrests in the interior, which will likely result in those aliens spending less time in ICE detention than if they were placed in full removal proceedings. That, in turn, will more quickly make available additional ICE bed space, which can be used for additional interior arrests and removals.

Because the implementation of expedited removal throughout the United States will free up ICE detention space, that space can be used to detain more aliens who are apprehended along the border, the Notice makes clear, "where they can be more quickly processed and removed from the country than if they had been released into the interior of the United States."

As that expansion pertains to judicial resources, the Notice argues:

DHS expects that the New Designation will help mitigate additional backlogs in the immigration courts and will reduce the significant costs to the government associated with full removal proceedings before an immigration judge, including the costs of a longer detention period and government representation in those proceedings.

It admits that additional asylum officer resources will need to be expended to handle credible fear claims from those who make such claims after being apprehended in the interior of the United States, but concludes that the immigration-enforcement and judicial resources that will be preserved will outweigh those additional costs. That is plainly correct.

Even under this expansion, immigration officers will still retain the discretion to place aliens who are otherwise subject to expedited removal into full removal proceedings under section 240 of the INA, in particular aliens with medical conditions and those with significant ties to the United States. Immigration officers will also have the discretion to allow aliens who are amenable to expedited removal to be voluntarily returned or to withdraw their applications for admission to the United States. Finally, in accordance with law, it will not apply to unaccompanied alien children.

Aliens who are faced with expedited removal will be given the opportunity to establish that they have been in the United States for two years or more, are lawful permanent residents, or refugees or asylees, or United States citizens.

Congress could have avoided DHS taking these steps if it had:

  1. plugged the loopholes that encourage the aliens to enter the United States illegally;
  2. provided more immigration detention space; and
  3. given ICE the resources that it needs to enforce the immigration laws within the United States.

It did not.

With respect to the third point, while addressing a group of high school students recently, I was asked whether immigration enforcement as it relates to aliens who entered legally and overstayed (most of whom are not arrested and detained), as opposed to aliens who were apprehended and detained at the border after entering illegally, was "racist". I explained that it was not, because current interior enforcement simply reflects the fact that Congress had simply failed to provide sufficient resources to apprehend alien overstays, or even to effectively enforce the immigration laws within the United States, issues that were exacerbated by poorly thought out local "sanctuary policies". This new policy will free up resources for ICE to go after overstays as well.

The expansion of expedited removal is more than two decades overdue. Better late than never, as my colleague Mr. Cadman agrees.