Expedited Removal: what is it and am I at risk?

Expedited Removal is a scary concept as it permits an immigration officer to enter an order of removal without judicial review. A removal order carries severe consequences including a bar from immigrating legally to United States for a period of years unless a special waiver is granted.

 
The legal authority for Expedited Removal is found at INA §235(b) which states, in pertinent part: 

"In general.-If an immigration officer determines that an alien (other than an alien described in subparagraph (F)) who is arriving in the United States or is described in clause (iii) is inadmissible under section 212(a)(6)(C) or 212(a)(7), the officer shall order the alien removed from the United States without further hearing or review unless the alien indicates either an intention to apply for asylum under section 208 or a fear of persecution." 
and 
"The Attorney General may apply ... this subparagraph to any or all aliens described in subclause (II) as designated by the Attorney General. Such designation shall be in the sole and unreviewable discretion of the Attorney General and may be modified at any time. 
Subclause (II) describes an alien that 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 under this subparagraph."
Arriving aliens includes aliens who have recently entered the United States and are apprehended at or near the border. The definition of "arriving alien" is found at 8 CFR 1001.1(q) as follows:
The term arriving alien means an applicant for admission coming or attempting to come into the United States at a port-of-entry, or an alien seeking transit through the United States at a port-of-entry, or an alien interdicted in international or United States waters and brought into the United States by any means, whether or not to a designated port-of-entry, and regardless of the means of transport. An arriving alien remains an arriving alien even if paroled pursuant to section 212(d)(5) of the Act, and even after any such parole is terminated or revoked. However, an arriving alien who was paroled into the United States before April 1, 1997, or who was paroled into the United States on or after April 1, 1997, pursuant to a grant of advance parole which the alien applied for and obtained in the United States prior to the alien's departure from and return to the United States, will not be treated, solely by reason of that grant of parole, as an arriving alien under section 235(b)(1)(A)(i) of the Act.
BOTTOM LINE:

You will be subject to expedited removal if;

  • You are apprehended at or near the border without documents unless you received advance parole;
  • You are apprehended inside the United States and cannot prove prove that you have either lived here for two or more years OR that you entered the United States lawfully (i.e. with a visa)
If either of these conditions apply to you, your only defense to expedited removal is if you can articulate a valid claim for political asylum.

STRATEGY:

If you are not subject to expedited removal, you should carry proof with you at all times which could be either proof that you have lived in the United States for at least two years or proof that you entered the United States with a visa, even if you overstayed.

If you are subject to expedited removal, you should understand the elements of a valid asylum claim. If you can make a valid asylum claim, you should be able to articulate it clearly.

An attorney can prepare a package for you packaging and explaining the proof that you can show to any immigration officer if you are apprehended. Such a package is no guarantee that you will not be expeditiously removed, but it increases your odds greatly of not being expeditiously removed. If an attorney prepares such a package for you, he or she can include within it a signed, original Form G-28 which authorizes immigration authorities to speak directly to your attorney.

Please keep in mind that we are largely in uncharted territory in the present enforcement environment and it remains unclear how the recent memoranda will be implemented and also unclear the extent to which the Courts will impede their implementation. Accordingly, here at Berke Law Offices, Inc., we are employing "risk control" strategies for our clients.

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