Congress has provided the United States Customs and Border Patrol ("CBP") a very powerful tool to prevent non-citizens from entering the United States for long period of time -- up-to life entry bar if in the subjective opinion of the border officer that individual has committed one or more infractions discussed below. There are limitations on the process (and an argument that a Canadian citizen cannot be subject to expedited removal). This article is a very basic overview of an immensely complicated process.
I. Grounds for Expedited Removal
There are five grounds for expedited removal:
- Fraud or misrepresentation;[i]
- Falsely claiming U.S. citizenship;[ii]
- The intended immigrant is not in possession of a valid unexpired immigrant visa or other suitable entry document ;[iii]
- A nonimmigrant who is not in possession of a passport valid for a minimum of six (6) months from the date of the expiration of the initial period of stay; or,[iv]
- A non-citizen who does not have proper border crossing documents. A nonimmigrant who is not in possession of a valid nonimmigrant visa or border crossing card at the time of application for admission.[v] ;
Expedited removal is not mandatory. Many aliens are allowed to withdraw their applications for admission and return home with no further lasting admissibility issues. Fraud or misrepresentation is the most common basis for expedited removal because most agents consider the person's purposeful misconduct the trigger.
The fraud/misrepresentation provision is easier to slip into than most people appreciate. Many people oversimplify their reason for crossing and this opens the individual up for an exceptionally costly sanction. In this writer's experience, the number one of group of people targeted by expedited removal are individuals living within one hour of the US border. To them, a five year bar from the United States feels almost like a jail sentence.
Residents of Canada or Mexico are rare subjected to expedited removal for having inadequate but genuine border crossing documents. On the US/Canadian border, it is possible to accidentally cross the border without intending to do so. (See this discussion board as an example). For example, after a recent change in exits in Port Huron Michigan, the downtown Port Huron and bridge to Canada exits were swapped. Old GPS units accidentally directed individuals to Canada. Large international crossings often do not have self-evident turn arounds and persons will often pull up to the foreign customs booth seeking assistance. Most of the time, the border agents allow the individual to withdraw their application for admission, but this office was contacted by a Montreal woman who was placed in expedited removal for nothing more than this. A list of acceptable documents for border crossing can be found here. While such removals are permissible, agents normally subject accidental crossers to a search, careful interview, and then they are permitted to withdraw their application.
II. The Mechanics of the Hearing
An expedited removal hearing takes place at the Port of Entry and is conducted by an agent from the US Customs and Border Patrol. There is no right to counsel or hearing before an immigration judge. The border officials take the person into a meeting room ask them a series of questions and complete the process within a few hours. Expedited removal decisions are primarily based on what was said at this interview and not at the primary inspection booth. After the statement is concluded, the individual is presented with the written statement and asked to initial each item. A decision is then made on the statement. If the information learned at the interview is insufficient to warrant grounds for expedited removal, a person can still be denied entry to the United States without prejudice to a reapplication at a later time. The person can also be extended the courtesy of being allowed to withdraw their application which results in the same situation -- the person is turned back that day but can come back with additional proof or a new request on a different day. Such a process does not create a permanent black mark on the person's border corssing records.
III. Possible Sanctions
For a person who lives in a border community or who has friends/family in the United States, these sanctions can be devastating. A first offender faces a five (5) year bar to re-entering the U.S (except in cases involving false claims to US citizenship where the bar is life). This means that individuals issued orders of expedited removal cannot re-enter the U.S. for a minimum period of five (5) years from the date of expedited removal unless they apply for and are granted permission to reapply for admission to the U.S. (Form I-212). Additionally, the individual may need to apply for a fraud waiver. Persons filing such waivers should pay particular attention to insure that they are filed in the correct place.
IV. The Appeal and Other Review
There is no formal administrative review of an expedited review decision, but the US CBP will allow a review requests for reconsideration directed to the Port of Entry or "POE." Supervisory personnel will review the request and will decide whether legal criteria were met. It is unlikely that officer discretion will reviewed, but this is not completely without exception. A person in this position should consult with counsel to whether this is a possible option. Most Port Directors will only review their agent's decision to determine whether it is legally authorized, but it can be credibly argued that expedited removals which are inconsistent with the stated purpose of the 1997 amendments should be subject to this review.
- Expedited Removal Shouldn't be Used in Cases Where the Applicant Was Not Attempting to Illegally Migrate to the US.
CBP’s authority to issue orders of expedited removal is provided for by federal law. Congress granted the expedited removal authority to CBP in 1997. Specifically, Section 302 of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (“IIRIRA”), which took effect April 1, 1997, amended Section 235(b) of the INA to authorize the expedited removal of aliens.
In any case involving a Port Request for reconsideration, it is useful to remind the officer's of the original purpose of expedited removal. The IIRIRA(which includes the expanded expedited removal provisions discussed in this article) was introduced in response to significant concerns about illegal immigration. Congress wanted to prevent and combat the surreptitious entry of undocumented aliens and the easy availability of fraudulent documents. [vi] The IIRIRA was designed to address these problems by, in part by, expanding process of expedited removal.[vii]
Thus, as noted above, the specific expedited removal provision of IIRIRA was actually created for the purposes of deterring the use of fraudulent documents, providing a greater punishment for the use of fraudulent documents, and combating the systematic abuse of the US's asylum by many individuals. US Senator Alan Simpson (a co-sponsor of the bill) stated that the law is: “is about new penalties for those who use or alter or make fraudulent documents.”[viii] Senator Simpson went on to specifically talk about expedited removal, stating:[ix]
There is a system of expedited removal which should curb the abuse of our asylum system while still providing a hearing for an immigration judge to those who make an asylum claim.
Senator Simpson also discussed expedited removal in an earlier Senate debate on IIRIRA, stating:[x]
It will create an expedited removal process, so that those who seek to enter the United States surreptitiously or with fraudulent documents can be promptly deported and not allowed to stay here for years while pursuing various frivolous appeals at all levels and in all forums, administrative and judicial.
Thus, Congress' intent in passing the expedited removal provisions of the IIRIRA was to combat, prevent, and deter the entry of illegal aliens to the United States by fraud and/or surreptitious means. Further, it was equally Congress’s intent that the new process of expedited removal would deter and prevent the abuse of our asylum system by aliens who would file frivolous asylum claims for the sole purpose of gaining entry and permission to work in the U.S. while their cases remained pending in the courts, sometimes for years
2. Limitations on Judicial Review.
Expedited removal has an enormous potential for abuse. A CBC News article has noted that several US-CBP officers are responsible for thousands of these notices. Once former officer, in particular, turned expedited removal into the "rule" rather than the "exception" with respect to these cases. While many courts have criticized the process, they have largely strictly applied the anti-review provisions of the IIRIRA recognizing only a very narrow jurisdictional mechanism for review.
According to 8 U.S.C. § 1252(e)(2), there is no judicial review of the CBP’s expedited removal order except to determine (1) whether the person is a U.S. citizen; (2) whether the person is a permanent resident or a refugee; and (3) whether the person was ordered removed under the expedited removal statute. As one court noted:[xi]
The entire process… can happen without any check on whether the person understood the proceedings, had an interpreter, or enjoyed any other safeguards. … [T]his procedure is fraught with risk of arbitrary, mistaken, or discriminatory behavior (suppose a particular CBP officer decides that enough visitors from Africa have already entered the United States). … [Nevertheless, we] must align ourselves with the courts that have considered the issue and hold that we lack jurisdiction to inquire whether the expedited removal procedure to which the Khans were subjected was properly invoked.
The harshness of this remedy has also been criticized by another court where a Canadian was subjected to expedited removal for running a small online business from his US house when he was legally in the US as a University Instructor. The Court noted (while reluctantly dismissing the judicial challenge to expedited removal):
"Apart from running a small business out of his home and lying about it in order to return home from visiting his mother, the government does not appear. to contest that Dugdale has long been an otherwise law-abiding and tax-paying resident of the United States. For his sins, he has been barred from the entering the country for five years, kept from his job, and separated from his ailing wife and American children. While the Court in no way condones Dugdale's conduct, a repentant Dugdale strikes it as a worthy candidate for further parole or whatever other discretionary dispensation may be available to him while he continues to litigate his claims. See e.g., 8 U.S.C. § 1182 (noting the Attorney General may, in his discretion, parole an alien into the United States for humanitarian reasons or significant public benefit). That said, and for the foregoing reasons, the Court will grant Respondents' Motion to Dismiss in part, reserve judgment on Dugdale's claim he was never removed pursuant to a valid order, and deny the remainder of Dugdale's motions. The Court will issue an order consistent with this opinion."
Under Section 302 of the IIRIRA after conducting a formal interview outlined above, the US-CBP is authorized to subject an individual to expedited removal. While expedited removal could theoretically occur for a lie or misrepresentation made before this point, this is not how the provision has been implemented. The regulations impose the formal interview as part of CBP's attempt to temper some of the claims of arbitrariness and possibly hold off judicial intervention. As noted above, CBP's failure to abide by its own administrative regulations is a potential basis for challenging the decision. A judicial challenge must be filed within 60 days of the decision. Dugdale v US Customs & Border Prot, 88 F Supp 3d 1, 8 (DDC 2015) reconsideration den No. 14-CV-01175 (CRC), 2015 WL 2124937 (DDC May 6, 2015). While the Dugdale Court noted on rehearing that precedent holding this time period is jurisdictional may have been implicitly overruled by the Supreme Court's ruling in United States v Kwai Fun Wong, 135 S Ct 1625; 191 L Ed 2d 533 (2015), the Court found it within its power to declare the contrary authority invalid.
As has bee noted in this article, when the rules were originally formulated, the INS (the predecessor to Homeland Security) was concerned that persons could be inadvertently or unintentionally in violation of the immigration laws or regulations who should not be subject to the harsh consequences of a formal expedited removal order.[xii] In an attempt to someone ameliorate the harshness of expedited removal, the agency created an internal policy and criteria to determine the individuals who should be afforded some relief from the harshness of expedited removal.[xiii]
First, individuals facing expedited removal should also be aware that by regulation CBP must create a detailed record of proceedings containing the facts of the case and statements made by the person being removed. The individual being removed must be advised of the charges against him/her and given an opportunity to respond to those charges in a sworn statement. [xiv]
These policies are carried forward in the Inspector's Field Manual or "IFM." The Manual states that officers that “the authority to formally order an alien removed from the U.S. without a hearing or review carries with it the responsibility to accurately and properly apply the grounds of inadmissibility.”[xv] Officers are instructed to only charge those grounds of inadmissibility that can be fully supported by the evidence and to consider, on a case-by-case basis, whether the individual is deserving of any appropriate waivers, withdrawal of application for admission, or deferred inspection to resolve the ground of inadmissibility rather than an order of expedited removal.[xvi]
V. Agency Discretion and Other Self-Imposed Limitations
As noted above, CBP has broader discretion to place a person into expedited removal than is commonly recognized. Under INA Sections 212(a)(6)(C) and/or (7)(A), the decision to place a person into expedited removal is a discretionary decision. An officer or a supervisor has the discretion to permit a person to withdraw their application for admission. The CBP agent can also consider applicable statutory waivers, parole, or deferred inspection. All three of these legal processes would allow a person to temporarily enter the United States. The agency is required to follow its own regulations in this area and it is possible to argue that the agency's failure to follow these regulations is grounds to set aside the expedited removal. As one federal court has noted: "[G]iven how few means aliens have to challenge expedited removal orders, the Court believes it important that CBP follow the letter of the law in issuing them, even in cases where the grounds for removal appear clear. Supervisory approval is one of the few checks on erroneous or arbitrary expedited removals. It should be taken seriously." Dugdale v US Customs & Border Prot, 88 F Supp 3d 1, 7-8 (DDC 2015) reconsideration den No. 14-CV-01175 (CRC), 2015 WL 2124937 (DDC May 6, 2015)
If an individual subject to expedited removal indicates to CBP officers that (s)he intends to apply for asylum in the United States, or expresses a fear of persecution or torture or a fear of return to his/her home country, then CBP must not proceed any further with the removal of that individual, but refer him/her to an asylum officer for a credible fear determination. Pending a credible fear determination, however, individuals will be subject to mandatory detention. In some situations, individuals can wait several weeks for their credible fear interview and determination, as asylum officers are not present in all detention locations. In these situations, individuals can wait several weeks in detention for an asylum officer to travel to the detention facility to conduct the credible fear interview.
If review of all the facts and circumstances of your case reveals that the order of expedited removal was improper, the first step is to approach CBP officials at the Port of Entry where the expedited order was issued. Every POE is different but most will agree to accept a formal written submission challenging the order of expedited removal.
In some cases, the order of expedited removal is challenged on the basis that CBP improperly applied the underlying ground of inadmissibility. For example, if an individual was telling the truth, an order of expedited removal based on a charge of fraud cannot be sustained. In other cases, even though the individual may have been inadmissible as charged, the order of expedited removal can still be challenged as inconsistent with Congressional and agency intent.
VI. Fraud as a Separate Basis of Inadmissibility
Although an order of expedited removal in and of itself carries a five year bar to returning to the U.S., if an individual is expedited removed on grounds of fraud/misrepresentation or false claim to citizenship, (s)he is actually inadmissible to the U.S. for life. Prior to 1996, a person who committed such was subject to a near automatic waiver for this ground of inadmissibility if more than ten years had passed. The IIRIRA limited the availability of the waiver and eliminated the possibility of applying for a waiver if more than 10 years have passed. The Act is not retroactive and pre-1996 rulings of inadmissibility are subject to the old rules.
A waiver is now available only to applicants who can demonstrate extreme hardship to:
•A U.S. citizen parent or spouse;
•An LPR ("green card") parent or spouse;
•A U.S. citizen fiancé(e); A fiancé(e) is not yet the spouse of a U.S. citizen, or
•In the case of a Violence Against Women Act (VAWA) self-petitioner: the VAWA self-petitioner, or his or her U.S. citizen, LPR, or qualified alien parent or child.
The IIRIRA made other changes that play a role in the waiver adjudication. The IIRIRA modified the inadmissibility provision of the Immigration & Nationality Act by separating most fraud which is still waivable from cases involving fraudulent claims to US citizenship which are not-waivable under this provision. (Some waivers still exist for fraudulent claims to US citizenship, but this is beyond the scope of this blog piece).
VII. Unique Issue for Canadians
There is an excellent legal argument that a Canadian cannot be subject to expedited removal based on their "visa exempt status." In Smith v. CBP,[xvii] the United States Court of Appeals for the Ninth Circuit held that a Canadian's special status means that some provisions of the expedited removal process should not be applied to them. Although the court ultimately rejected the petitioner’s merits argument, the case opens the door to future challenges by other individuals with different facts. Here is a basic outline of the argument.
Under the “expedited removal” process, 8 U.S.C. § 1225(b)(1)(A), an immigration officer at the border can issue an expedited order of removal against certain noncitizens applying to enter. This can be done immediately, while the person is at the border, and is completely at the discretion of the immigration officer if the officer believes that the person has made a false statement or does not have the proper immigration documents. The applicant is turned away and is also banished from coming back to the United States for five years.
Even where the CBP officer acts in an arbitrary or abusive manner, the statute seems to preclude any judicial oversight over certain situations. The statute precludes its use against non-citizens who are not “arriving in the United States”, as well as against Cuban citizenswho arrive by aircraft.[xviii] The regulations preclude its application to individuals “for whom documentary requirements are waived” – which includes Canadian citizens who seek to enter the United States as visitors. [xix] Thus, there is an initial threshold question whether CBP actually has the legal authority to issue the expedited removal order against a particular person in the first place.
Prior case law suggested that federal courts have no jurisdiction to consider the threshold question of whether CBP exceeded its statutory and regulatory authority in issuing an expedited removal order.[xx] In Smith v. CBP, the Ninth Circuit rejected this suggestion and held that the court does in fact have jurisdiction to consider the threshold question: “we agree with Smith that there is limited jurisdiction to consider his case under § 1252(e)(2)(B).” For example, if a person argued that he was not subject to expedited removal because he was a “flying Cuban”, the court would have jurisdiction to determine that issue.
In Smith, Mr. Smith argued that as a Canadian citizen he was not subject to expedited removal because he was entitled to the exception established in 8 C.F.R. § 235.3(b)(2)(i) (expedited removal does not apply to individuals “for whom documentary requirements are waived”). The court explained: "certain Canadian citizens who have established their nonimmigrant status are exempt from the documentary requirements to which other arriving aliens are subject, see 8 C.F.R. § 212.1(a), and are, in turn, not subject to the expedited removal statute. 8 C.F.R. § 235.3(b)(2)(i). But these exceptions apply only to nonimmigrants." 741 F.3d 1016. Thus, the threshold question that the court entertained was whether Smith had established a bona fide or non-frivolous claim to nonimmigrant status.
On the facts of the case, the court rejected Smith’s claim. The court noted that when Smith attempted to enter the U.S., he carried photographic equipment, flyers advertising work, and large quantities of cash, and he made false statements concerning the amount of cash that he had, all of which indicated that he might be running a photography business in the United States. Thus, the court held, Smith did not have a legitimate claim to being a person “for whom documentary requirements are waived.”
However, the court made it clear that it was limiting its decision to the facts of this particular case:[xxi] "This opinion is limited to the specific circumstances of Smith’s presentation at the border …. We do not opine on the circumstances of Canadians who fall in the nonimmigrant categories and are exempt from documentary requirements, see 8 C.F.R. §212. 1, or on other circumstances involving Canadians seeking to enter the United States."
The Smith court deferred ruling on the scope of judicial review of an expedited removal order against a Canadian citizen who has a bona fide or non-frivolous claim to being a visitor.
[i] 8 U.S.C. Sec. 212(a)(6)(C)(i).
[ii] 8 U.S.C. Sec. 212(a)(6)(C)(ii).
[iii] 8 U.S.C. Sec. 212(a)(7)(A)(i)(I).
[iv] 8 U.S.C. Sec. 212(a)(7)(A)(i)(II)(i).
[v] 8 U.S.C. Sec. 212(a)(7)(A)(i)(II)(ii).
[vi] See Cong. Rec. H2378-2380 (March 19, 1996) (statement of Rep. Hyde).
[vii] As the Senate Report on the IIRIRA notes:[F]irst, to increase control over immigration to the United States—decreasing the number of persons becoming part of the U.S. population in violation of this country’s immigration law (through visa overstay as well as illegal entry); expediting the removal of excludable and deportable aliens, especially criminal aliens; and reducing the abuse of parole and asylum provisions.
- REP. 104-249 (April 10, 1996) (emphasis added).
[viii] Cong. Rec. S11711 (September 28, 1996).
[ix] Cong. Rec. S11711 (September 28, 1996) (statement of Sen. Simpson).
[x] Cong. Rec. S10572-73 (September 16, 1996) (statement of Sen. Simpson) (emphasis added).
[xi] Khan v. Holder, 608 F.3d 325, 329, 330 (7th Cir. 2010).
[xii] . Inspection and Expedited Removal of Aliens; Detention and Removal of Aliens; Conduct of Removal Proceedings; Asylum Procedures, 62 FR 10312-01.
[xiii] See Inspection and Expedited Removal of Aliens; Detention and Removal of Aliens; Conduct of Removal Proceedings; Asylum Procedures, 62 FR 10312-01.
[xiv] See 8 C.F.R. § 235.3(b)(2)(i).
[xv] IFM, Chapter 17.15(a)(2).
[xvi] IFM, Chapter 17.15(a)(2).
[xvii] Smith v. U.S. Customs & Border Prot., 741 F.3d 1016 (9th Cir. 2014),
[xviii] 8 U.S.C. § 1225(b)(1)(A).
[xix] See 8 C.F.R. § 212.1(a)(1).
[xx] . See, e.g. Li v. Eddy, 259 F.3d 1132, 1134 (9th Cir. 2001), opinion vacated on reh'g, 324 F.3d 1109 (9th Cir. 2003), cited favorably by Garcia de Rincon v. Dep't of Homeland Sec., 539 F.3d 1133, 1141, n. 4 (9th Cir. 2008) (courts may not “inquire into whether section 1225(b)(1) was properly invoked”); Khan, 608 F.3d at 330 (“we lack jurisdiction to inquire whether the expedited removal procedure to which the [plaintiffs] were subjected was properly invoked”).
[xxi] Smith, 741 F.3d 1016.