This report evaluates the D.C. Circuit’s ruling upholding the constitutionality of the Trump administration’s expansion of expedited removal to include illegal aliens who have been present in the U.S. for less than two years (without being admitted or paroled), as allowed by current law; whether the ruling would allow Congress to expand expedited removal to include essentially all aliens not admitted or paroled; and whether Congress should do so.
Summary
- On June 23, the District of Columbia Circuit brushed aside constitutional due process concerns and ruled that DHS can expand the availability of expedited removal to the full extent permitted by law — that is, to any alien not admitted or paroled who is inadmissible on grounds of fraud/misrepresentation or not being in possession of required entry/travel documents, and who cannot “affirmatively show[], to the satisfaction of an immigration officer, that the[y] ha[ve] been physically present in the United States continuously for [a] 2-year period”.
The D.C. Circuit’s constitutional analysis did not at all hinge on the length of an alien’s continuous physical presence in the U.S. The court addressed in the abstract what process was “due” and whether the written guidance directing the implementation of expedited removal’s expansion honored the procedural rights Congress had granted aliens. Seemingly, if Congress were to raise the two-year continuous physical presence cap or remove it altogether, the court would rely on the same analysis and would come to the same conclusion.
Thus, if the D.C. Circuit’s rationale is adopted by other circuits or ratified by the Supreme Court, Congress would seemingly have free rein to raise the cap or remove it altogether.
- There are two strong policy reasons for removing the continuous physical presence cap. First, this would in one fell swoop eliminate “the difficulty … in determining the exact time of [an] alien’s arrival”. The exact length of continuous physical presence would not matter, as any alien not admitted or paroled and inadmissible under the grounds described above would be eligible for expedited removal. Removing the cap would also eliminate the near certainty of pervasive fraud, of aliens demonstrating the required period of continuous physical presence by “obtain[ing] the fake utility bills, rent receipts, pay stubs, affidavits, and other false documents necessary to prove residence”.
- Second, assuming that the problems that have blunted the effectiveness of expedited removal are resolved, then broad applicability of expedited removal could allow for a much higher number of removals from the interior of the U.S. Consider that the high-water mark for removals of aliens apprehended in the interior was only 237,941 in 2009 and that there is a backlog of over 3.2 million pending removal cases in our immigration courts. Allowing for the truly expedited removal of millions of illegal border-crossers would be a true game changer.
Introduction
On June 23, the District of Columbia Circuit Court of Appeals brushed aside constitutional concerns and ruled in Make the Road New York v. Mullin that the Department of Homeland Security (DHS) can expand the availability of expedited removal to the full extent permitted under § 235 of the Immigration and Nationality Act (INA), that is, to any alien “who has not been admitted or paroled into the United States, and who has not affirmatively shown, to the satisfaction of an immigration officer, that the alien has been physically present in the United States continuously for the 2-year period immediately prior to the date of the determination of inadmissibility” and who otherwise meets the eligibility requirements for expedited removal. The court’s rationale, if adopted by other circuits or ratified by the Supreme Court, would seemingly give Congress free rein to expand expedited removal to cover any otherwise eligible alien regardless of their length of continuous physical presence in the United States.
Supreme Court Justice Samuel Alito explained Congress’s rationale for creating expedited removal in his majority opinion in the Court’s 2020 decision in DHS v. Thuraissigiam:
Every year, hundreds of thousands of aliens are apprehended at or near the border attempting to enter this country illegally. Many ask for asylum, claiming that they would be persecuted if returned to their home countries. Some of these claims are valid. … Most asylum claims, however, ultimately fail, and some are fraudulent. In 1996, when Congress [passed] the Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA) … , it crafted a system for weeding out patently meritless claims and expeditiously removing the aliens making such claims from the country. It was Congress’s judgment that detaining all asylum seekers until the full-blown removal process is completed would place an unacceptable burden on our immigration system and that releasing them would present an undue risk that they would fail to appear for removal proceedings.
The Expedited Removal Process
Pursuant to expedited removal under § 235:
If an immigration officer determines that an alien (other than an alien [“who is a native or citizen of a country in the Western Hemisphere with whose government the United States does not have full diplomatic relations and who arrives by aircraft at a port of entry” — referring, at the time of enactment, to Cuba]) who is arriving in the United States … is inadmissible under [INA §] 212(a)(6)(C) [generally, seeking to procure an immigration benefit by fraud or willfull misrepresentation] or [](a)(7) [generally, not in possession of required entry/travel documents when applying for admission], the officer shall order the alien removed … without further hearing or review unless the alien indicates either an intention to apply for asylum … or a fear of persecution.
What happens if an alien does indicate an intention to apply for asylum or a fear of return? “[T]he officer shall refer the alien for an interview by an asylum officer” to determine whether they have a “credible fear of persecution” (“a significant possibility, taking into account the credibility of the statements made by the alien in support of the alien’s claim and such other facts as are known to the officer, that the alien could establish eligibility for asylum”). An asylum officer must “ha[ve] had professional training in country conditions, asylum law, and interview techniques comparable to that provided to full-time [asylum] adjudicators” and be “supervised by an officer who meets [such standards] … and has [also] had substantial experience adjudicating asylum applications.”
The secretary “shall provide information concerning the [credible fear] interview … to aliens who may be eligible”, and such aliens “may consult with a person or persons of the alien’s choosing prior to the interview or any review thereof”. However, “Such consultation shall be at no expense to the Government and shall not unreasonably delay the process.”
Should the asylum officer “determine[] … that [the] alien has a credible fear of persecution … the alien shall be detained for further consideration of the application for asylum”, understood to mean through standard removal proceedings presided over by immigration judges pursuant to INA § 240.
Should the asylum officer “determine[] that [the] alien does not have a credible fear … , the officer shall order the alien removed … without further hearing or review” and the alien “shall be detained … until removed”, except that “upon the alien’s request, [there will be] prompt review by an immigration judge of [the negative credible fear] determination”. The judge “shall make a de novo determination” and:
Such review shall include an opportunity for the alien to be heard and questioned by the immigration judge, either in person or by telephonic or video connection. Review shall be concluded as expeditiously as possible, to the maximum extent practicable within 24 hours, but in no case later than 7 days after the date of the determination.
Further, the secretary shall also “provide … for prompt review of … an order [of removal] … against an alien who claims … to have been lawfully admitted for permanent residence, to have been admitted as a refugee … or to have been granted asylum”.
A removal order issued through the expedited removal process “is not subject to [any other] administrative appeal”, unliked in § 240 removal proceedings, where an alien can appeal a removal order to the Board of Immigration Appeals.
Judicial Review
Judicial review is strictly circumscribed. INA § 242 provides that:
Notwithstanding any other provision of law … including … any … habeas corpus provision … no court shall have jurisdiction to review—
(i) except as provided [elsewhere in § 242], any individual determination or to entertain any other cause or claim arising from or relating to the implementation or operation of an order of removal pursuant to [expedited removal],
(ii) except as provided [elsewhere in § 242], a decision … to invoke [expedited removal] … ,
(iii) the application of [expedited removal] to individual aliens, including [credible fear] determination[s] …, or
(iv) except as provided [elsewhere in § 242], procedures and policies adopted … to implement [expedited removal].
Without regard to the nature of the action or claim and without regard to the identity of the party or parties bringing the action, no court may—
(A) enter declaratory, injunctive, or other equitable relief in any action pertaining to an order to exclude an alien [pursuant to expedited removal] except [in habeas corpus proceedings], or
(B) certify a class … in any action for which [habeas] review is authorized.
Judicial review of any determination made [in the expedited removal process] is available in habeas corpus proceedings, but shall be limited to determinations of—
(A) whether the petitioner is an alien,
(B) whether the petitioner was ordered removed [under the process], and
(C) whether the petitioner can prove by a preponderance of the evidence that the[y are] an alien lawfully admitted for permanent residence, ha[ve] been admitted as a refugee … , or ha[ve] been granted asylum.
Judicial review of determinations under [the expedited removal process] and its implementation is available in an action instituted in the United States District Court for the District of Columbia [if filed within 60 days of implementation], but shall be limited to determinations of—
(i) whether [the process], or any regulation issued to implement such [process], is constitutional; or
(ii) whether such a regulation, or a written policy directive, written policy guideline, or written procedure … to implement such [process], is not consistent with applicable provisions of this subchapter [of the INA] or is otherwise in violation of law.
In determining whether an alien has been ordered removed under [expedited removal], the court’s inquiry shall be limited to whether such an order in fact was issued and whether it relates to the petitioner. There shall be no review of whether the alien is actually inadmissible or entitled to any relief from removal.
Aliens in the Interior and at Sea
As mentioned, § 235 allows DHS to subject to the expedited removal process — “in the [Secretary’s] sole and unreviewable discretion” and in a manner that can be “modified at any time” — “any or all” aliens “who ha[ve] not been admitted or paroled … and who ha[ve] not affirmatively shown, to the satisfaction of an immigration officer, that the[y] ha[ve] been physically present … continuously for [a] 2-year period” and who otherwise meet the eligibility criteria.
Congress added this allowance for expansion to the conference report to H.R. 2202, after both the House of Representatives and the Senate had already passed versions of the legislation (enacted later in 1996 in modified form as the Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA)). There is no available legislative history elucidating Congress’s rationale other than the conference report’s parroting of the legislative text.
1997
On Christmas Eve 1996, President Clinton’s Attorney General Janet Reno signed a proposed rule “request[ing] public comment regarding the appropriate use of the authority conferred … to expand the class of aliens subject to expedited removal”, but indicating that a preliminary decision had already been made that the rule “will generally apply only to ‘arriving aliens[]’[”]. On February 26, 1997, Reno signed an interim rule with request for comments, stating that “the Department [of Justice (DOJ)] continues to believe the position taken in the proposed rule is correct”, especially “considering the difficulty not only in establishing that [an] alien entered without inspection, but also in determining the exact time of the alien’s arrival”. She also wrote that application “to aliens already in the United States will involve more complex determinations of fact and will be more difficult to manage, and therefore [DOJ] wishes to gain insight and experience by initially applying these new provisions on a more limited and controlled basis”.
However, Attorney General Reno clarified that:
[DOJ] does … reserve the right to apply the expedited removal procedures to additional classes of aliens within the limits set by the statute, if, in the [then Immigration and Naturalization Service (INS)] Commissioner’s discretion, such action is operationally warranted. It is emphasized that a proposed expansion of the expedited removal procedures may occur at any time and may be driven either by specific situations such as a sudden influx of illegal aliens motivated by political or economic unrest or other events or by a general need to increase the effectiveness of enforcement operations at one or more locations.
2002
On November 12, 2002, James Ziglar, President Bush’s INS commissioner, signed a Federal Register notice providing that:
[A]ll aliens who arrive in the United States by sea, either by boat or other means, who are not admitted or paroled, and who have not been physically present in the United States continuously for the two-year period prior to a determination of inadmissibility by a Service officer shall be placed in expedited removal proceedings. … This Notice does not apply to aliens who arrive at United States ports-of-entry.
2004
On August 3,, 2004, President Bush’s Secretary of Homeland Security Tom Ridge signed a Federal Register notice providing that:
DHS has elected to assert and implement only that portion of the authority granted by the statute that bears close temporal and spatial proximity to illegal entries at or near the border … appl[ying] only to aliens encountered within 14 days of entry without inspection and within 100 air miles of any U.S. international land border.
In the interests of focusing enforcement resources upon unlawful entries that have a close spatial and temporal nexus to the border, this notice does not implement the full nationwide expedited removal authority available to DHS.
2017
On January 11, 2017, President Obama’s Secretary of Homeland Security Jeh Johnson signed a final rule with a request for comments and a Federal Register notice allowing utilization of expedited removal regarding Cuban nationals. Johnson explained in the rule that “Congress … created a limited exception for certain aliens who arrived at a U.S. port of entry by aircraft … [which] … applied to Cuban nationals due to the lack of full diplomatic relations between the United States and Cuba.” However, “on July 20, 2015, the United States and Cuba formally reestablished full diplomatic relations and opened embassies in each other’s countries”. Therefore, “DHS is eliminating provisions in its regulations that categorically exempt Cuban nationals who arrive at a U.S. port of entry by aircraft from expedited removal proceedings”, and “[f]or the same reasons … is … remov[ing] the parallel exceptions for … Cuban nationals who arrive by sea or who are encountered by an immigration officer within 100 air miles of the U.S. border”.
2019
On July 19, 2019, President Trump’s Acting Secretary of Homeland Security Kevin McAleenan signed a Federal Register notice1 for the first time expanding DHS’s utilization of expedited removal to its full statutory authority:
[I am] exercising [my] statutory authority … to designate for expedited removal the following categories of aliens not previously designated: (1) Aliens 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 (2) aliens who did not arrive by sea, who are encountered within 100 air miles from [such] border, and who have been continuously present … for at least 14 days but for less than two years.
Thus, DHS was “harmoniz[ing] the authorization for aliens arriving by land with the existing authorization for aliens arriving by sea.”
Acting Secretary McAleenan explained that:
DHS has anecdotal evidence … that many aliens who have been smuggled into the United States hide in ‘‘safe houses’’ that are located more than 100 miles from the nearest land border.
[Previously], DHS officers could not apply expedited removal to those individuals…. DHS anticipates that this broader use of expedited removal … will reduce incentives not only to enter unlawfully but also to attempt to travel quickly into the interior … in an effort to avoid the application of expedited removal.
However, on September 27, 2019, in Make the Road N.Y. v. McAleenan, Judge Ketanji Brown Jackson of the District Court for the District of Columbia Circuit (now, of course, a Supreme Court justice) preliminarily enjoined implementation of the notice for violating the Administrative Procedure Act (APA), including for being arbitrary and capricious “because DHS failed to address significant flaws in the expedited removal system” and DHS “does [not] appear [to have] considered the potential impact of the expansion of that system on settled undocumented non-citizens and their communities”, and for violating notice-and-comment requirements. However, in 2020 in Make the Rd. N.Y. v. Wolf, the District of Columbia Circuit reversed Judge Jackson’s injunction, concluding that “because Congress committed the judgment whether to expand expedited removal to the Secretary’s ‘sole and unreviewable discretion’” and because the “‘statutory scheme … provides absolutely no guidance as to how that discretion is to be exercised[]’” (quoting the D.C. Circuit’s 1985 decision in Robbins v. Reagan), “the Secretary’s decision is not subject to review under the APA’s standards for agency decisionmaking … [n]or … to the APA’s notice-and-comment rulemaking requirements”.
2022
On March 18, 2022, the Biden administration turned victory into defeat through a notice signed by President Biden’s Secretary of Homeland Security Alejandro Mayorkas and filed with the Federal Register:
On February 2, 2021, President Joseph R. Biden, Jr. issued an Executive Order … direct[ing] the Secretary of Homeland Security to promptly review and consider whether to modify, revoke, or rescind the July 2019 Notice … consider[ing] our legal and humanitarian obligations, constitutional principles of due process and other applicable law, enforcement resources, the public interest, and any other factors consistent with th[e] order that the Secretary deems appropriate.
Mayorkas explained that:
[I] determined that maintaining the authority to apply expedited removal to the maximum extent provided by statute is inadvisable at this time due to the Department’s need to prioritize the use of its limited enforcement resources, as well as the operational complexities of implement[ation]. … The Department believes that expedited removal is best focused as a border enforcement tool on recent entrants encountered in close proximity to the border or its functional equivalent (e.g., air and land ports of entry), rather than on individuals apprehended … without geographical limitation, who may have developed significant ties to the community.
I read Secretary Mayorkas to have meant that expedited removal is best focused as a border enforcement tool because our immigration laws should not be enforced in the interior of the United States.
Mayorkas also stated that:
The high number of apprehensions overall require significantly more DHS resources to process and adjudicate. A substantial number of border encounters are now children and family units. … Humanitarian concerns and legal protections make processing children and family units much more complex and resource-intensive than processing single adults. In addition … [DHS] ha[s] limited facilities set aside for women or family units []or children.
I’m not sure what any of that has to do with expedited removal.
Mayorkas further stated that:
Retaining the expanded expedited removal authority would require time and fact-intensive training for all current officers, agents, and supervisors that would detract from multiple new initiatives presently being introduced to the workforce to better serve enforcement priority mission areas. Additionally, as the use of expanded expedited removal would involve complex new challenges for the ICE workforce, it would come with increased risk of otherwise avoidable legal challenges to the agency’s enforcement actions.
There is some truth here, as why bother engaging in time and fact-intensive training if one has no desire to enforce immigration laws in the interior. And there certainly is constitutional uncertainty regarding the utilization of expedited removal to its full statutory extent, as I shall discuss.
2025
On January 21, 2025, a notice signed by President Trump’s Acting Secretary of Homeland Security Benjamin Huffman was filed with the Federal Register, rescinding the Biden administration’s recission and thus returning to full utilization of expedited removal.
Is it Constitutional to Apply Expedited Removal to Aliens Apprehended in the Interior?
25 Yards Across the Border
In 2020, the Supreme Court ruled in Thuraissigiam that use of expedited removal did not violate the constitutional habeas corpus and due process rights of aliens apprehended on “the threshold of entry” into the United States.
As to habeas corpus, Justice Alito, writing for the majority (including Chief Justice Roberts and Justices Thomas, Gorsuch, and Kavanaugh), concluded that:
Respondent’s Suspension Clause argument [“The Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it.” (U.S. Const. Art. I, § 9, cl. 2)] fails because it would extend the writ of habeas corpus far beyond its scope “when the Constitution was drafted and ratified.” [quoting the Court’s 2008 decision in Boumediene v. Bush] Indeed, respondent’s use of the writ would have been unrecognizable at that time. Habeas has traditionally been a means to secure release from unlawful detention, but respondent invokes the writ to achieve an entirely different end, namely, to obtain additional administrative review of his asylum claim and ultimately to obtain authorization to stay in this country.
Alito then explained that “respondent [also] contend[ed] that IIRIRA violates his right to due process [‘No person shall … be deprived of life, liberty, or property, without due process of law’. U.S. Const. amend. V]; by precluding judicial review of his allegedly flawed credible fear proceeding” and that “The Ninth Circuit agreed, holding that respondent ‘had a constitutional right to expedited removal proceedings that conformed to the dictates of due process.’”2
Justice Alito then admonished the Ninth Circuit:
[Its] holding is contrary to more than a century of precedent. In 1892, the [Supreme] Court wrote that as to “foreigners who have never been naturalized, nor acquired any domicil or residence within the United States, nor even been admitted into the country pursuant to law,” “the decisions of executive or administrative officers, acting within powers expressly conferred by Congress, are due process of law.” [quoting the Court’s decision in Nishimura Ekiu v. United States] Since then, the Court has often reiterated this important rule. [citing its 1950 decision in United States ex rel. Knauff v. Shaughnessy] (“Whatever the procedure authorized by Congress is, it is due process as far as an alien denied entry is concerned”), [citing its 1953 decision in Shaughnessy v. United States ex rel. Mezei] (same), [and citing its 1982 decision in Landon v. Plasencia] (“This Court has long held that an alien seeking initial admission to the United States requests a privilege and has no constitutional rights regarding his application, for the power to admit or exclude aliens is a sovereign prerogative”).
However, the respondent nevertheless argued, per Justice Alito, that the forgoing analysis “does not apply to him because he was not taken into custody the instant he attempted to enter the country”. Rather, “Because he succeeded in making it 25 yards into U. S. territory before he was caught, he claims the right to be treated more favorably.”
However, Justice Alito stated that, unlike the Ninth Circuit, “[w]e reject” this argument, elaborating that:
[The argument] disregards the reason for our century-old rule regarding the due process rights of an alien seeking initial entry. That rule rests on fundamental propositions: “[T]he power to admit or exclude aliens is a sovereign prerogative[]” [quoting the Court’s decision in Landon]; the Constitution gives “the political department of the government” plenary authority to decide which aliens to admit, [quoting its decision in Nishimura Ekiu]; and a concomitant of that power is the power to set the procedures to be followed in determining whether an alien should be admitted, [citing its decision in Knauff].
Alito concluded that “This rule would be meaningless if it became inoperative as soon as an arriving alien set foot on U.S. soil,”, elaborating that:
When an alien arrives at a port of entry — for example, an international airport — the alien is on U. S. soil, but the alien is not considered to have entered the country for the purposes of this rule. On the contrary, aliens who arrive at ports of entry … are “treated” for due process purposes “as if stopped at the border.” [quoting the Court’s decision in Mezei].
The same must be true of an alien like respondent. … [A]n alien who tries to enter the country illegally is treated as an “applicant for admission,” [INA § 235](a)(1), and an alien who is detained shortly after unlawful entry cannot be said to have “effected an entry,” [quoting the Court’s 2001 decision in Zadvydas v. Davis]. Like an alien detained after arriving at a port of entry, an alien like respondent is “on the threshold.” [Quoting Mezei; emphasis added.]
Thus, “[A]n alien in respondent’s position has only those rights regarding admission that Congress has provided by statute. … [T]he Due Process Clause … does not require review of [a credible fear] determination or how it was made.” Thus, “As applied here … § [242] does not violate due process.”
Two of the four justices nominated by Democrat presidents — Justices Breyer and Ginsburg — concurred in the decision.
26 Yards Across the Border
Thuraissigiam made clear that an alien “in respondent’s position, an alien “on the threshold” of entry, has only those due process rights that Congress has provided. But how far does the threshold extend before an alien accrues due process rights? How many yards can an alien traverse before accruing such rights? And what exactly do such rights entail?
Justices Sonia Sotomayor and Elena Kagan, the two dissenters in Thuraissigiam, wrote that “The Court cabins its holding to individuals who are ‘in respondent’s position.’ … Presumably the rule applies to — and only to — individuals found within 25 feet [sic] of the border who have entered within the past 24 hours of their apprehension.” OK, I believe Justices Sotomayor and Kagan were being facetious, not really meaning that one additional step would have crossed the threshold. But, more helpfully, they also stated that “Where its logic must stop, however, is hard to say.” Where indeed does the threshold logic stop?
INA § 287 provides in part that any authorized DHS officer or employee “shall have power without warrant … within a reasonable distance from any external boundary of the United States, to board and search for aliens any vessel within the territorial waters of the United States and any railway car, aircraft, conveyance, or vehicle”. The associated regulatory definition of “reasonable distance” is “within 100 air miles from any external boundary of the United States or any shorter distance which may be fixed” (other than with regard to aircraft) — and it has been that way since at least 1957.
Thus, one possibility would be to consider the “threshold” to be within 100 air miles of a U.S. land border. After all, Secretary Ridge noted in his 2004 notice that “The 100-mile range already has been established by regulation as a reasonable distance from the external boundary of the U.S. for the purpose of preventing the illegal entry of aliens into the U.S.”
However, this possibility might not survive the Supreme Court’s 1973 decision in Almeida-Sanchez v. United States. In that case, a plurality of four Justices explained that:
The Border Patrol conducts three types of surveillance along inland roadways, all in the asserted interest of detecting the illegal importation of aliens… [including] roving patrols. … In all of these operations, it is argued, the agents are acting within the Constitution when they stop and search automobiles without a warrant, without probable cause to believe the cars contain aliens, and even without probable cause to believe the cars have made a border crossing. The only asserted justification for this extravagant license to search is § 287(a)(3).
The justices further explained that “It is settled … that a stop and search of a moving automobile can be made without a warrant.” (Citing the Court’s 1925 decision in Carroll v. United States.) However, “[a]utomobile or no automobile, there must be probable cause for the search”, as “‘In enforcing the Fourth Amendment’s prohibition against unreasonable searches and seizures [“The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated.” U.S. Const. amend IV], the Court has insisted upon probable cause as a minimum requirement for a reasonable search permitted by the Constitution.’” (Quoting the Supreme Court’s 1970 decision in Chambers v. Maroney.)
However, as the justices explained, the probable cause requirement does not extend to the border since “[t]he power of the Federal Government to exclude aliens from the country.… can be effectuated by routine inspections and searches of individuals or conveyances seeking to cross our borders” and “[a]s the Court stated in” Carroll, “‘Travelers may be so stopped in crossing an international boundary because of national self-protection reasonably requiring one entering the country to identify himself as entitled to come in, and his belongings as effects which may be lawfully brought in.’” Additionally, as the four justices made clear, “Whatever the permissible scope of intrusiveness of a routine border search might be, searches of this kind may in certain circumstances take place not only at the border itself, but at its functional equivalents as well.”
What did the justices consider to be “functional equivalents” of the border?
For example, searches at an established station near the border, at a point marking the confluence of two or more roads that extend from the border, might be functional equivalents. … [A] search of the passengers and cargo of an airplane arriving at a St. Louis airport after a nonstop flight from Mexico City would clearly be the functional equivalent of a border search.
However, in the instant case:
[T]he search of the petitioner’s automobile by a roving patrol, on a California road that lies at all points at least 20 miles north of the Mexican border, was of a wholly different sort. In the absence of probable cause or consent, that search violated the petitioner’s Fourth Amendment right to be free of “unreasonable searches and seizures.” [Emphasis added.]
Almeida-Sanchez was a Fourth Amendment unreasonable searches and seizures case, not a Fifth Amendment due process case. However, there seems to be a close correlation between being “on the threshold” of entry and being at a “functional equivalent” of the border. One could easily imagine the four justices analyzing the bounds of “on the threshold” of entry in a similar fashion as to a “functional equivalent of the border”, and finding that 20 miles (35,200 yards) is beyond the threshold.
However, Justice White stated in his dissenting opinion (joined by Chief Justice Burger and Justices Blackmun and Rehnquist) that:
I disagree … that either a warrant or probable cause is required in the circumstances of this case. … [T]he governing standard under the Fourth Amendment is reasonableness, and, in my view, that standard is sufficiently flexible to authorize the search involved in this case.
At the very least, this statute represents the considered judgment of Congress that proper enforcement of the immigration laws requires random searches of vehicles without warrant or probable cause within a reasonable distance of the international borders of the country.
To disagree … is to invalidate [§ 287] in the face of the contrary opinion of Congress that its legislation comported with the standard of reasonableness of the Fourth Amendment. This I am quite unwilling to do.
White argued that:
The Canadian border is almost 4,000 miles in length; the Mexican, almost 2,000. … [N]ot only is inspection at regular points of entry not infallible, but it is also physically impossible to maintain continuous patrol over vast stretches of our borders. The fact is that illegal crossings at other than the legal ports of entry are numerous and recurring. If there is to be any hope of intercepting illegal entrants and of maintaining any kind of credible deterrent, it is essential that … roving patrols be conducted to discover and intercept illegal entrants as they filter to the established roads and highways and attempt to move away from the border area. It is for this purpose that the Border Patrol maintained the roving patrol involved in this case.
Further, especially in light of the facts that there are “large number of illegal entries across the Mexican border … [and] many illegally entering aliens [likely] cross on foot and meet prearranged transportation in this country”, White concluded that he could not “but uphold the judgment of Congress that, for purposes of enforcing the immigration laws, it is reasonable to treat the exterior boundaries of the country as a zone, not a line”.
I would daresay that the four dissenting justices might consider a “threshold” “zone” of 100 miles to be eminently reasonable for due process purposes in addition to Fourth Amendment purposes. And I would daresay that a majority of current Supreme Court justices might be persuaded by Justice White’s reasoning.
As Secretary of Homeland Security Ridge wrote in his 2004 notice, “[T]his designation extends to a 100-mile operational range because many aliens will arrive in vehicles that speedily depart the border area, and because other recent arrivals will find their way to near-border locales seeking transportation to other locations within the interior of the U.S.”
Two Years of Presence in the U.S. — The Make the Road Litigation
In any event, what of aliens who are not “on the threshold”, but who have by any measure gotten over the threshold and thus do have Fifth Amendment due process rights? Does the expedited removal process provide a constitutionally adequate level of process for them?
In 2025, Judge Jia Cobb of the District Court for the District of Columbia Circuit ruled in Make the Rd. N.Y. v. Noem3 that expedited removal indeed does not provide an adequate level of process (at least to the extent of warranting a preliminary injunction because Make the Road, “a nonprofit, membership-based community organization that offers education, legal, health, and community services to low-income and immigrant New Yorkers” was “likely to succeed on the merits of its due process claim”).
First, a clarification by Judge Cobb:
Make the Road has not challenged the constitutionality of the expedited removal statute. Nor has it challenged the lawfulness of any agency decision implementing the statute prior to 2025. … The only things challenged are the 2025 Designation and the … implementing [Memorandum]. … The Court therefore only addresses the lawfulness of applying expedited removal to noncitizens who are detained more than 100 miles from the border and who have been present in the country for at least 14 days but less than two years. And the Court only addresses the lawfulness of doing so pursuant to the 2025 Designation and the … Memorandum. [Emphasis in original.]
Cobb explained that “unlike the group of people who have traditionally been subject to expedited removal … the group of people the Government is now subjecting to [it] have long since entered” and “That means that they have a weighty liberty interest in remaining here and therefore must be afforded due process under the Fifth Amendment.” But “When it exponentially expanded the population subject to expedited removal, the Government did not … in any way adapt its procedures to this new group of people.” She held that “in applying the statute to a huge group of people living in the interior of the country who have not previously been subject to expedited removal, the Government must afford them due process” and that “The procedures currently in place fall short.”
Judge Cobb elaborated that:
[W]hen it comes to people living in the interior of the country, prioritizing speed over all else will inevitably lead the Government to erroneously remove people via this truncated process. That is because most noncitizens living in the interior have been here longer than two years, rendering them ineligible for expedited removal. … The procedures the Government currently uses … however, create a significant risk that it will not identify these disqualifying criteria before quickly ordering someone removed. And the lack of available review means that once the removal happens, it is largely too late to correct the error.
She explained that:
Unlike section 240 proceedings, which often take place over the course of several months, the expedited removal order is “usually issued within a few days, if not hours.”… As a result, noncitizens subject to expedited removal have “almost no opportunity to prepare a defense to the charge of removal.”… Also unlike section 240 proceedings, individuals subject to expedited removal typically do not have an opportunity to review the government’s evidence against them or cross-examine witnesses. … And because [they] are usually detained … often far from their families or any counsel, they face significant barriers in gathering materials that they might use as evidence in the proceedings ([citing a declaration] explaining that detention centers do not provide confidential emails, fax, or other means of receiving documents other than mail, which on average takes 5-10 days to reach detained clients).
Cobb contended that:
Make the Road’s members … include noncitizens who have been continuously present for longer than 2 years, but who “may be erroneously placed into expanded expedited removal either because they do not have, or do not carry, documentation of their continuous length of residence or would not be able to present that documentation on the short timeline … especially if they are detained by immigration authorities.”
Judge Cobb granted a stay of the notice and memorandum (insofar as it implemented the notice).
However, in 2026 in Make the Road New York v. Mullin, the D.C. Circuit vacated the stay, concluding that “The 2025 Designation and … Memorandum do not violate the Due Process Clause.” Judge Justin Walker, who had been nominated by President Trump, wrote in his majority opinion that:
The district court evaluated Make the Road’s due-process claim under [the Supreme Court’s 1976 decision in] Mathews v. Eldridge. … But even assuming for the sake of argument that the affected aliens have due-process rights, the due-process claim should be evaluated under the less demanding standard in [the Supreme Court’s 1950 decision in] Mullane v. Central Hanover Bank & Trust Co. …
Recent Supreme Court precedent favors application of Mullane instead of Mathews. In [the Court’s 2025 decisions in] Trump v. J.G.G. … and A.A.R.P. [v. Trump] … the Court applied Mullane to decide what process was due to aliens facing removal under the Alien Enemies Act. … Neither case mentioned Mathews.
Walker explained the importance of examining due process claims through the lens of Mullane rather than that of Mathews:
Mathews invites courts to balance private interests against governmental interests and to prescribe “additional ... procedural safeguards” when the balance tips toward the individual. … Mullane, by contrast, does not ask whether additional procedures might reduce the risk of error.
Rather, Mullane asks only whether notice was “reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections.” [Quoting the Supreme Court’s 2002 decision in Dusenbery v. United States (rejecting argument that due process requires the most effective notice practicable and holding that Mullane requires only notice “reasonably calculated” to inform).]
Judge Walker distilled Mullane into the concept that “[I]t does not ask what procedures would be better. It asks whether the provided procedures are adequate.” As to what is adequate, “[i]n the removal context, A.A.R.P. explained what adequacy requires: notice ‘reasonably calculated, under all the circumstances, to apprise interested parties’ and ‘sufficient time and information to reasonably be able to contact counsel, file a petition, and pursue appropriate relief.’” (Quoting Mullane.) However:
In A.A.R.P., the detainees were not given constitutionally adequate notice that they were subject to removal under the Alien Enemies Act and lacked “sufficient time and information” to “actually seek habeas relief” before removal. … The Court required notice of the Government’s asserted authority and procedures sufficient to permit detainees to pursue habeas in a meaningful way.
The language of the Supreme Court in A.A.R.P. was that:
Due process requires notice that is “reasonably calculated, under all the circumstances, to apprise interested parties” and that “afford[s] a reasonable time ... to make [an] appearance.” [quoting the Court’s decision in Mullane]. Accordingly, in J. G. G., this Court explained — with all nine Justices agreeing — that “[Alien Enemies Act] detainees must receive notice ... that they are subject to removal under the Act ... within a reasonable time and in such a manner as will allow them to actually seek habeas relief” before removal. … In order to “actually seek habeas relief,” a detainee must have sufficient time and information to reasonably be able to contact counsel, file a petition, and pursue appropriate relief.
Thus, the Supreme Court concluded that:
The Government has represented elsewhere that it is unable to provide for the return of an individual deported in error to a prison in El Salvador. … The detainees’ interests at stake are accordingly particularly weighty. Under these circumstances, notice roughly 24 hours before removal, devoid of information about how to exercise due process rights to contest that removal, surely does not pass muster.
But the Court also clarified that “it is not optimal for this Court, far removed from the circumstances on the ground, to determine in the first instance the precise process necessary to satisfy the Constitution in this case”.
The D.C. Circuit’s answer to the question of “whether the expedited-removal process satisfies th[e Mullane] standard”, was that “Make the Road has not shown that the expedited-removal process denies its members notice and an opportunity to be heard.” Judge Walker elaborated that:
The expedited-removal process provides notice that the individual is being placed in removal proceedings and is subject to removal for inadmissibility — specifically, for lacking valid entry documents or for fraud. … The sample notice … reads in bold at the top “Notice and Order of Expedited Removal.” It includes a section titled “DETERMINATION OF INADMISSIBILITY,” which includes checkboxes for an immigration officer to record which provisions of [INA § 212](a)(6)(C) and (7) the applicant failed. A section below is titled “ORDER OF REMOVAL UNDER SECTION 235(b)(1) OF THE ACT.”… So it provides notice.
The individual then has an “opportunity to respond.” [citing 8 C.F.R. § 235.3(b)(2)(i)] This “opportunity” includes “a reasonable time” for the alien to present his objections. [Emphasis in original.]
In the context of expedited removal, unlike removal under the Alien Enemies Act, 24 hours indeed seems adequate. In expedited removal proceedings, an alien doesn’t need to contact counsel, file a petition, or be given any quantum of time to figure out how to get before an asylum officer. INA § 235 provides that if “the alien indicates either an intention to apply for asylum … or a fear of persecution, the officer shall refer the alien for an interview by an asylum officer” to determine whether the alien has a “credible fear of persecution”. In a sense, DHS does all an alien’s work for them.
Judge Walker added that:
There is no evidence that the Designation or … Memorandum secretly restricts the right to notice and an opportunity to respond, that they command officers to withhold information, that they prohibit aliens from raising continuous presence or any other defense, or that they limit the time or opportunity afforded to aliens after a removal order issues.
“If any of those things are happening”, he concluded, “they are not the result of the Designation or … Memorandum” for “[t]hose directives are silent on these matters — and a directive’s silence cannot command, authorize, or structurally ensure a constitutional violation”. As Make the Road “challenges only the ‘written policy directive[s]’ and the procedures they incorporate” and it “has not shown that those directives and procedures violate due process, its claim fails”.
Judge Walker acknowledged that “[t]o be sure, the record contains evidence that some aliens have been erroneously subjected to expedited removal despite having been present for more than two years”, noting that if “because they were denied an opportunity to prove continuous presence”, then “that’s illegal”. But he concluded that:
But the cause there would be individual officers’ failure to follow the law — not defects in the written directives under review or the procedures they incorporate.
The distinction matters because of how Congress structured judicial review of expedited removal. … The object of review is the written instrument — not the conduct of individual officers who may fail to comply with it. And if there is any remedy for officer-level noncompliance, it is not invalidation of the directive itself. [Emphasis in original.]
Judge Walker then addressed four arguments made by Make the Road, that (1) its members must receive “advance notice” that expedited removal will be applied so they can “contest that removal” by establishing two years’ presence; (2) they should not bear the burden of doing so; (3) a “requirement” must exist “guarantee[ing]” time to gather evidence and seek assistance; and (4) “a neutral officer must review continuous presence”.
As to the first three concerns, Walker concluded that “The Fifth Amendment does not require the government to provide advance legal instruction, to reallocate statutory burdens, or to guarantee optimal conditions for evidence-gathering before the threshold determination Congress authorized.” Further:
[T]he district court thought that aliens have insufficient time to consult counsel before credible-fear interviews. But neither the Designation nor the … Memorandum limits that time or restricts access to counsel. And Make the Road has identified nothing in them that takes away what the governing statute and regulations promise — an opportunity for consultation if it can occur “at no expense to the Government” and will not unreasonably delay the highly expedited process.
[T]he district court’s findings … do not show that the challenged directives deprive aliens of a meaningful opportunity to be heard. [Emphasis in original.]
As to a neutral adjudicator, Judge Walker explained that:
[D]ue process does not require a neutral adjudicator at every stage of a multi-step administrative process — as many regulated industries know all too well. What it requires is an opportunity to be heard “at a meaningful time and in a meaningful manner.” [quoting the Supreme Court’s 1965 decision in Armstrong v. Manzo] When initial decisions are made by agency officers but subject to de novo review by neutral adjudicators, due process is satisfied. [Citing the Supreme Court’s 1993 decision in Concrete Pipe & Products of California, Inc. v. Construction Laborers Pension Trust for Southern California.]
Walker concluded that “Congress assigned credible-fear interviews to asylum officers, and de novo review of negative determinations to immigration judges. … The availability of immigration-judge review provides the neutral check needed to satisfy due process.”
Affirmative Defense v. Element of the Offense. Judge Walker explained that Make the Road “argues that DHS has failed to provide proper notice and an opportunity to be heard because it thinks DHS must proactively tell aliens that they can defeat expedited removal if they prove two years of continuous presence”. He rejected the plaintiff’s contention, stating:
[Plaintiff] has identified no authority — and we are aware of none — holding that due process requires the government to instruct individuals on available defenses or exemptions. The constitutional requirement is notice of the action the government is taking and the grounds for it, plus an opportunity to respond. [citing Mullane] It is not a requirement that the government explain how the individual might prevail.
Walker explained that:
The distinction is well established in the context of criminal law, where the stakes are even higher. In criminal proceedings, the government must provide notice of the charges, but it has no obligation to advise the defendant of available defenses. [citing Fed. R. Crim. P. 7(c)(1) ] (indictment must contain “a plain, concise, and definite written statement of the essential facts constituting the offense charged”). Prosecutors … are not required to affirmatively instruct the defendant on favorable law. If due process imposes no such requirement in criminal proceedings, it follows a fortiori that it imposes no such requirement in the removal context, where fewer procedural protections apply. [Citing the Supreme Court’s 1913 decision in Bugajewitz v. Adams (holding that deportation is not a punishment and does not trigger criminal procedural protections); emphasis in original.]
He then emphasized that “A.A.R.P.’s holding was about notice of the action and a realistic opportunity to seek relief — not notice of every conceivable counterargument.” Further, “If due process requires the government to inform individuals of the two-year continuous-presence rule, it presumably also requires informing them of every other basis for contesting expedited removal. Make the Road offers no limiting principle and identifies no authority for so expansive a requirement.”
But Judge Walker’s analysis begs the question of whether the applicability of expedited removal to an alien “who has not affirmatively shown, to the satisfaction of an immigration officer, that the alien has been physically present in the United States continuously for the 2-year period” is really an affirmative defense, or rather an element of eligibility for expedited removal analogous to an “element of a crime” in a criminal prosecution.
What is the difference in the criminal context between an affirmative defense and an element of a crime, and why is the difference important in the context of expedited removal proceedings?
Deborah England explains at Criminal Defense Lawyer that “[e]lements of an offense are the components of conduct, intent or mental state, and harm that together make something a crime” and DOJ’s archived “Criminal Resource Manual” explained that “An indictment need only contain those facts and elements of the alleged offense necessary to inform the accused of the charge so that he or she may prepare a defense and invoke the Double Jeopardy Clause when appropriate.”
The Fifth Circuit explained in its 1979 decision in United States v. Outler that “There is no question that a grand jury indictment must set forth each essential element of an offense in order for a resulting conviction to stand.” (Citing the Supreme Court’s 1962 decision in Russell v. United States among other cases.) It elaborated that:
This well settled rule serves a dual function. First, the Sixth Amendment to the Constitution requires that every criminal defendant “be informed of the nature and cause of the accusation.” Inclusion of the essential elements of an offense in an indictment provides the accused with the bare minimum of information necessary to meet this requirement. Second, the Fifth Amendment guarantees the right of a grand jury indictment to each defendant prosecuted for an “infamous”, or serious, crime. A grand jury can perform its function of determining probable cause and returning a true bill only if all elements of the offense are contained in the indictment. [Citing Russell.]
Not only must each element of a crime be included in the indictment, but, as the Supreme Court ruled in 1970 in In re Winship, the prosecutor must prove every element beyond a reasonable doubt.
England writes that in contrast to the elements of a crime, “Affirmative defenses prevent a conviction even when the prosecutor has met its burden of proving the crime. Defendants use affirmative defenses to justify, excuse, or mitigate the wrongful conduct that’s been proven or admitted. Defendants raise affirmative defenses and often bear the burden of proving the defense.”
She notes that “Affirmative defenses generally fall under one of three categories — justifications, excuses, and nonexculpatory defenses,” explaining that justification defenses such as self-defense “recognize the unlawful conduct but deem it justified under the circumstances”, excuse defenses such as duress “go to the actor’s blameworthiness”, and nonexculpatory defenses such as statutes of limitations or diplomatic immunity “don’t consider the actor or their conduct”, but “represent policy decisions that bar a defendant’s conviction”.
Akin to an affirmative defense is a statutory exception. DOJ’s “Criminal Resource Manual” explained that:
[T]he indictment … is [not] required to negate defensive matter such as the statute of limitations or exceptions to the class of persons or objects set out in the statutes defining the offense. “It has long been established … that an indictment need not negative a statutory exception.” [Quoting the Third Circuit’s 1992 decision in United States v. Polan and citing the Supreme Court’s 1922 decision in McKelvey v. United States.]
Similarly, the U.S. District Court for the Northern District of Illinois concluded in its 2014 decision in United States v. Novak4 that “An indictment … is not required to anticipate affirmative defenses or negate statutory exemptions.” (Citing the Supreme Court’s decisions in McKelvey and United States v. Sisson (1970).) In Sisson, the Supreme Court concluded that “It has never been thought that an indictment, in order to be sufficient, need anticipate affirmative defenses.”
Further, the defendant has the obligation of bringing up an affirmative defense/statutory exception. In McKelvey, the Supreme Court concluded that:
By repeated decisions it has come to be a settled rule … that an indictment or other pleading founded on a general provision defining the elements of an offense, or of a right conferred, need not negative the matter of an exception made by a proviso or other distinct clause, whether in the same section or elsewhere, and that it is incumbent on one who relies on such an exception to set it up and establish it. [Citing the Court’s decisions in Schlemmer v. Buffalo, Rochester & Pittsburgh Ry. Co. (1907) and Javierre v. Central Altagracia (1910).]
The United States District Court for the District of Minnesota in its 2011 decision in United States v. Clark5 quoted cases including the District Court for the District of Massachusetts’ 1992 decision in United States v. Carroll6 — which it described as “finding that defendant’s claim that he was entrapped was not an appropriate grounds for the dismissal of an otherwise valid indictment because entrapment ‘is an affirmative defense which the defendant may raise at trial’” and the District Court for the Southern District of New York’s 2009 decision in United States v. Alvarez7 — quoting Alvarez’s conclusion that “The Defendant may raise as an affirmative defense that consent to re-enter the United States was not required, but it is not an element of the offense that the Government must prove, or include in the Indictment.”
It is not always readily apparent whether statutory language constitutes a statutory exception or an element of the crime. The Eleventh Circuit observed in its 2001 decision in United States v. Kloess that “Congress … routinely creates exceptions to criminal liability for various offenses. Most of these exceptions do not contain language indicating that they are affirmative defenses rather than elements of the offenses. Nevertheless, the courts generally interpret them as affirmative defenses.”
And in some instances, statutory language can play the role both of a statutory exception and an element of the crime. The Fifth Circuit explained in Outler that:
In United States v. Moore … the Supreme Court [in 1975] held that a physician may be charged with a criminal violation of … the [Controlled Substances Act] CSA whenever he or she prescribes a controlled substance without a legitimate medical reason. … The court noted that the qualifying condition of the offense … was not expressly stated in the relevant sections of the CSA, but rather, “implicit” to the statutory scheme. … This court … repeatedly has held since Moore that it is incumbent upon the government to prove the lack of a legitimate medical reason in order to convict a registered physician of dispensing drugs in violation of [the CSA].
The Outler court then took the step of ruling the (implicit) statutory exception — that a doctor who has a legitimate medical reason for prescribing a controlled substance has not committed a criminal CSA violation — to be an essential element of the crime:
We now conclude that this element is essential to a charge of the offense. We recognize that an element is not always an “essential element” simply because the prosecution carries the burden of proof; however, here the element embodies the culpability of the offense. Without behavior beyond professional practice, there is no crime. We believe, therefore, that the lack of a legitimate medical reason is as essential to the offense charged against Dr. Outler as the requisite mens rea.
The Fifth Circuit noted that “The United States Attorney[’s] respon[se] that the lack of a legitimate medical reason is not an essential element … [but] instead that the presence of a legitimate medical purpose is a statutory exception to the general offense.” The court even acknowledged that “The language of the CSA apparently is constructed in this manner.” Regardless, it concluded that:
[A]n essential element is not always expressed in the statutory definition of the offense, but actually may be the negation of an exception to the offense. In rare instances, an exception can be so necessary to a true definition of the offense that the elements of the crime are not fully stated without the exception. [citing the Fifth Circuit’s 1946 decision in Sutton v. United States] We believe this to be the case whenever a physician is charged with prescribing drugs in violation of [the CSA]
Outler was hardly an outlier decision. For instance, in 2012, the United States District Court for the Southern District of Texas in SEC v. Jackson8 approvingly cited Outler in “consider[ing] whether th[e] statute [at issue] is one of those rare instances where the true definition of the offense cannot be discerned unless the exception is negated”.
And in 1997, the Eleventh (former Fifth) Circuit in United States v. McArthur devised a test for determining whether such a rare instance is at hand:
[A federal statute] bans the knowing possession of a firearm in a federal facility. A separate subsection of the statute conditions convictions under this provision upon the posting of conspicuous notice of the prohibition. The main issue in this case, and one of first impression, is whether proof of adequate notice is an element of the crime of possession or an affirmative defense.
[S]ubsection (h) prohibits a conviction under subsection (a) unless conspicuous notice is posted to inform people of the prohibition. According to McArthur, subsection (h) is an element of the offense of possession and, therefore, the government must prove the existence of the required notice beyond a reasonable doubt.
The court then set forth its test:
To determine whether an exception to a criminal offense is an element of the crime or an affirmative defense, we undertake a three-part inquiry. We begin with the language and structure of the statute. Next, we examine the legislative history of the provision. … Finally, we decide whether the defendant or the government is better situated to adduce evidence tending to prove or disprove the applicability of the exception.
As to the test’s first part, the court wrote:
With regard to the language and structure of the statute, we are guided by two interpretive presumptions. First, a narrow proviso to a more general statutory offense is more likely to be an affirmative defense than an element of the offense. As the Supreme Court has stated, “an indictment … founded on a general provision defining the elements of an offense … need not negative the matter of an exception made by a proviso or other distinct clause, whether in the same section or elsewhere. …” [quoting McKelvey] A second, but related, rule is that where one can omit the exception from the statute without doing violence to the definition of the offense, the exception is more likely an affirmative defense. Thus, in [Outler] we explained that where “an exception … [is] so necessary to a true definition of the offense … the elements of the crime are not fully stated without the exception.”… We reasoned that due process requires that an exception which “embodies the culpability of the offense” must be an essential element. [quoting Outler]… Naturally, these presumptions are merely interpretive aids; we also consider other indications of legislative will evident in the statute.
Applying the test’s first part, the court concluded that:
Considering the first of our interpretive guides, subsection (h) appears to be an affirmative defense; it is a narrow exception to a general proscription. Specifically, subsection (a) bans all firearm possession in federal facilities, and subsection (h) excepts possession at facilities where notice is inadequate or inconspicuous. [The] plain language indicates that subsection (h) is a defense: “no person shall be convicted of an offense under subsection (a) or (e)” without notice. … Because subsection (a) by itself comprises “an offense,” subsection (h) does not appear to be an element of the offense.
Moreover, subsection (a) defines a perfectly cogent offense. Absent subsection (h), subsection (a) simply bans knowing possession on federal facilities. … This statute is not the “rare instance[]” where an exception is truly an element of the crime … . [The statute] does not conceal mens rea in an exception; rather, subsection (a) requires the government to prove that a defendant knowingly possessed a firearm in a federal facility. Consequently, it ensures convictions based on more than mere innocence — it requires that the defendant know he has a gun in his possession and know that he is entering a federal facility. In light of this requirement and the pervasive regulation of weapon possession at federal facilities, due process is not offended by a prosecution without proof of adequate notice. [Emphasis in original.]
The court noted that “we … might be inclined to view [a] notice requirement as an element of the offense” if the statute otherwise did not require that “a defendant have any culpability to be convicted”. (Citing Outler.)
Applying the test’s second part, the court stated that “The legislative history … although sparse, indicates that Congress viewed subsection (h) as an affirmative defense.”
As to the test’s third part, the court explained that:
[C]ourts determining whether a statutory exception is an element of the crime or an affirmative defense often consider whether the government or the defendant is in the best position to prove facts necessary to trigger the exception. Where defendants are better equipped to prove facts that would allow them to take advantage of a statutory exception, we ordinarily view that exception as an affirmative defense.
Applying the third part, the court concluded that “In the instant case, we do not view either party as necessarily better able to prove whether notice was adequate. Evidence relevant to the issue likely would not be difficult to collect.”
The court held “that unless the defendant introduces evidence that notice of the federal law is lacking, the government, in a prosecution for the possession of firearms at federal facilities, need not prove that notice of the ban on such possession was posted conspicuously at the facility.”
In 2006, the United States District Court for the Southern District of Illinois (within the Fifth Circuit) in its decision in United States v. Vest9 “determined that the three-part inquiry … would aid in … structuring the Court’s analysis for deciding the issue”, that “the answer is ‘no’ to each part of the inquiry of whether the [statutory] exception should be an essential element to the offense”, and that therefore the exception will be “treated as [an] affirmative defense[]”.
In 2020, the United States District Court for the Middle District of Georgia in United States v. Shamsid-Deen10 utilized the test, explaining that “In the Eleventh Circuit, courts consider three factors when determining whether to treat an exception to a criminal statute as an affirmative defense: language and structure, legislative history, and whether the defendant or the Government is better suited to produce evidence concerning the applicability of the exception.” The court concluded that “after reviewing the McArthur factors … the exception set out [in the statute at issue] is an affirmative defense”.
How does expedited removal’s applicability to aliens unless they can “affirmatively show[] to the satisfaction of an immigration officer” that they “ha[ve] been physically present … continuously for the 2-year period” fair under McArthur’s test?
As to the test’s first part, Congress certainly appears to have structured this language as a statutory exception, with expedited removal applying unless an alien can make an affirmative showing that they fit within the two years’ continuous presence exception. And the language could certainly be omitted without doing violence to the definition of an alien subject to expedited removal — the process would simply become an available option in the case of any nonadmitted or paroled alien determined to be inadmissible under § 212(a)(6)(C) or (7). Further, an alien’s culpability for having unlawfully entered the United States would seem to be no less for their having been able to avoid apprehension for two years.
As to the test’s second part, there is no legislative history to guide us one way or the other.
As to the test’s third part, an alien certainly would be in a better position than the government to demonstrate how long they have been present in the U.S. since their unlawful entry.
In all, it seems that Judge Walker reached the correct conclusion, that the statute’s “affirmatively show” clause is an affirmative defense/statutory exception that DHS is not obligated to inform aliens of in the expedited removal process. Walker, though, does not appear to have even considered the possibility that the clause was instead analogous to an element of an offense.
The government is not totally off the hook with regard to statutory exceptions. The Eleventh Circuit concluded in its 1984 decision in United States v. Laroche that:
Where affirmative defenses are created through statutory exceptions, the ultimate burden of persuasion remains with the prosecution, but the defendant has the burden of going forward with sufficient evidence to raise the exception as an issue. … Thus, it is incumbent upon the defendant to properly present the statutory exception, after which point the government assumes the burden of disproving its applicability.
So, if expedited removal were a criminal penalty and were an alien to assert the statutory exception of two years’ continuous physical presence and provide sufficient evidence thereof, then DHS would have to prove beyond a reasonable doubt that the alien had not been continuously physically present for that period. However, as removal does not constitute punishment, is not a criminal penalty, DHS has no such obligation. Congress put the burden on the alien to “affirmatively show[ such physical presence] to the satisfaction of an immigration officer”.
Beyond Two Years of Physical Presence?
In his concurring opinion in Thuraissigiam, Justice Stephen Breyer noted that while “[u]nder current law, noncitizens who have lived in the United States for up to two years may be placed in expedited-removal proceedings”, “Congress might decide to raise that 2-year cap (or remove it altogether).”
Indeed, the D.C. Circuit’s analysis of the constitutionality of expedited removal at its full statutory maximum did not at all hinge on the length of an alien’s continuous physical presence in the United States once having crossed “the threshold”. The court addressed in the abstract what process was “due” and whether the written guidance directing the implementation of expedited removal’s expansion honored the procedural rights Congress had granted aliens in the process. Seemingly, if Congress were to raise the two-year continuous physical presence cap or remove it altogether, Judge Walker and the D.C. Circuit would rely on the same analysis and would come to the same conclusion. Thus, if the D.C. Circuit’s rationale is adopted by other circuits or ratified by the Supreme Court, Congress would seemingly have free rein to raise the cap or remove it altogether.
Assuming its constitutionality, there are two strong policy reasons for simply removing the continuous physical presence cap. First, were the cap to be removed, this would in one fell swoop eliminate “the difficulty”, as Attorney General Reno put it, in “determining the exact time of [an] alien’s arrival”. The exact length of continuous physical presence would not matter, as any alien not admitted or paroled and inadmissible under § 212(a)(6)(C) or (7) would be eligible for expedited removal. Removing the cap would also eliminate the near certainty of pervasive fraud, of aliens demonstrating the required period of continuous physical presence through resort to “the false document industry” to “obtain the fake utility bills, rent receipts, pay stubs, affidavits, and other false documents necessary to prove residence”, as my colleague Steven Camarota explained in 2006.
Second, assuming that the problems that have blunted the effectiveness of expedited removal (including prior administrations lacking the will to honor Congress’s detention mandates, which I have written about here, and the credible fear standard being so low that the vast majority of interviewed aliens are found to have a credible fear by sympathetic asylum officers, which I have written about here) are resolved, then broad applicability of expedited removal could allow for a much higher number of removals from the interior of the U.S. Consider that the high-water mark for § 240 removals of aliens apprehended in the interior of the U.S. was only 237,941 in 2009. Consider that there is a backlog of over 3.2 million pending § 240 removal cases in DOJ’s immigration courts. Allowing for the truly expedited removal of millions of nonadmitted or paroled aliens inadmissible under § 212(a)(6)(C) or (7) would be a true game changer.
A Cautionary Note
Judge Walker acknowledged that “What counts as ‘reasonable’ for due process purposes varies with the circumstances” (quoting the Supreme Court’s decision in A.A.R.P.), but found that to be inapposite because “unlike the as-applied challenge in A.A.R.P., Make the Road’s facial challenge to the Designation and … Memorandum does not turn on the facts of a particular removal”. But what if a constitutional challenge turning on the facts of a particular removal could be brought?
It is true that the INA does not allow for judicial review of the application of expedited removal to individual aliens (INA § 242(a)(2)(A)(iii)). But the INA also allows for judicial review of expedited removal “determinations” regarding the underlying constitutionality of the expedited removal statute and its implementing regulations (assuming a challenge could be brought within the statutory timeframe) (INA § 242(e)((3)(A)(i)). Does this in effect allow for “as applied” challenges turning on the facts of particular removals? If so, then issues such as those raised by the district court and the dissenting judge in the D.C. Circuit’s decision might create constitutional vulnerabilities. Dissenting D.C. Circuit Judge Robert Wilkins wrote that:
The District Court noted that “[w]hen asked at oral argument what would happen if … an individual … wants ‘to demonstrate that they’ve been here for a period of two years but they don’t have any paperwork on them,’ the Government came up empty, offering only ‘to take that back to the agency to give [the court] an answer.’”
The District Court found … that “the Government’s procedures prevent noncitizens from ‘contact[ing] counsel or other support [to] gather information that they ... need to ... assert a credible fear’ in their interview” since “[s]ome of the detention facilities where noncitizens are held charge cost-prohibitive rates for attorney client phone calls and have long wait-times (more than 24 hours) for scheduling calls after they are requested.”… A process of that kind that “leaves noncitizens unable to obtain ‘medical records’ and other proof that would substantiate their claims of fear” … offers no one any opportunity to make their case.
End Notes
1 At the time, I was serving as a deputy general counsel in DHS’s Office of General Counsel and worked on the notice.
2 917 F. 3d 1097 (9th Cir. 2019).
3 805 F. Supp.3d 139 (D.D.C. 2025).
4 2014 U.S. Dist. LEXIS 88471 (2014).
5 2011 U.S. Dist. LEXIS 55576 (2011).
6 1992 U.S. Dist. LEXIS 17013 (1992).
7 2009 U.S. Dist. LEXIS 100196 (2009).
8 908 F. Supp.2d 834 (S.D. Tex. 2012).
9 2006 U.S. Dist. LEXIS 47053 (2006).
10 454 F. Supp.3d 1307 (M.D. Ga. 2020).