Expedited Removal Finally to be Applied as Intended

By Dan Cadman on July 23, 2019

Finally. The Department of Homeland Security has—for the first time since the law authorizing expedited removal was enacted 23 years ago in 1996—published a notice in the Federal Register indicating its intent to use the full scope of the provision nationally.

The provision can be found at Section 235(b) of the Immigration and Nationality Act (INA), codified in the federal code at 8 U.S.C. Sec. 1225(b).

It's worth noting that in 1996, Democrat Bill Clinton was president and signed this provision, among many others, into law as a part of the Illegal Immigration Reform and Immigrant Responsibility Act. It allows immigration officers to order the removal of aliens who have entered the United States illegally anywhere in the country (provided that they have been continuously present less than two years) without need to refer that alien to an immigration judge for a hearing.

There is an exception to expedited removal being applied against aliens who can pass the "credible fear of return" test who are seeking asylum.

This expansion of expedited removal should have been undertaken many years ago, yet was not by either Democratic or Republican administrations for inexplicable reasons. If it had been, we might not find ourselves in quite the border and immigration crisis we are in as a nation at present.

The immigration courts are so hopelessly backlogged, and getting more so because of the abuse of the asylum system, that cases take literally years for resolution. This inordinate delay acts as an incentive for thousands of aliens to make claims for asylum, even though they know that in the end they won't be entitled to asylum or other relief from removal. After all, by simply making the claim, they have bought themselves several years of living and working in the United States—and longer yet if they are successful at absconding and hiding from immigration agents.

By expanding expedited removal to its full reach, a significant portion of cases can be diverted out of the immigration courts, allowing the backlog to settle and, over time, recede. This is particularly true for apprehension of aliens within the interior of the United States, when that takes place within two years of their illegal entry. This use of abbreviated administrative procedures, instead of adding to court backlogs, benefits not only the nation but also those aliens who have valid claims to asylum since their cases will garner the attention and time they merit in a system that at present is overwhelmed.

Equally important, when an alien successfully evades border agents and ensconces himself in the interior, by the very fact of not presenting himself to immigration adjudicators and making an asylum claim, he is showing pretty clearly that he is an economic migrant, not someone in fear of his life who seeks refuge. That's a tough one to explain away when finally caught.

What is more, the asylum provision at INA Section 208 limits the filing of asylum claims to within one year of the alien's entry, whether legal or illegally. After that, to file a claim (for instance if caught after expiration of the year, but still within the two-year period allowed by expedited removal rules) an alien must demonstrate:

...to the satisfaction of [the Secretary of Homeland Security] either the existence of changed circumstances which materially affect the applicant's eligibility for asylum or extraordinary circumstances relating to the delay in filing an application within the period specified...

That won't be an easy row to hoe for those who only exhibit interest in asylum after being arrested and subjected to expedited removal. All in all, a good thing, though I can already hear the outraged cries of "unfair" from the open borders advocates.