Expedited Removal Under 8 U.S.C. § 1225

Expedited Removal (ER) was created by the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA). It permits the U.S. Department of Homeland Security (Customs & Border Protection and Immigration & Customs Enforcement) to remove arriving aliens from the U.S. without allowing them to have a hearing before an Immigration Judge.

Overview

An expedited removal proceeding under 8 U.S.C. § 1225 allows immigration officers to (1) determine whether certain aliens are inadmissible, and (2) enter removal orders, generally without hearing or further review.

Two classes of individuals are subject to expedited removal proceedings. Originally, onlyaliens “arriving” in the United States were subject to the proceedings. However, the Department of Homeland Security (DHS) has expanded the reach of expedited removal proceedings to aliens who have entered the United States, as long as they (1) “are physically present in the U.S. without having been admitted or paroled,” (2) are discovered “within 100 air miles” of the United States border, and (3) cannot establish that they have been “physically present in the U.S.” for the fourteen days prior to the encounter with immigration authorities. Designating Aliens For Expedited Removal, 69 Fed. Reg. 48877-01, 48880 (Aug. 11, 2004). All such aliens are deemed “applicants for admission” into the United States, regardless of whether they seek to enter at a port of entry or have already entered the country. 8 U.S.C. § 1225(a)(1).

During an expedited removal proceeding, an immigration officer must conduct an inspection and determine whether the alien is inadmissible because the alien (1) has made a material misrepresentation to gain admission into the United States, (2) has “falsely represent[ed]” himself to be a United States citizen, or (3) does not possess a “valid entry
document.” See 8 U.S.C. § 1225(a)(3), (b)(1)(A)(i); see also id. § 1182(a)(6)(C)(i), (a)(6)(c)(ii)(I), (a)(7)(A)(i). When making a finding of inadmissibility, the examining immigration officer must “create a record of the facts of the case and statements made by the alien.” 8 C.F.R. § 235.3(b)(2)(i). The officer “shall . . . have the alien read (or have read to him or her) the statement.” Id. Moreover, the officer “shall advise the alien of the charges against him or her on Form I-860, Notice and Order of Expedited Removal, and the alien shall be given an opportunity to respond to those charges in the sworn statement.” Id. Then, if the officer determines the alien to be inadmissible, “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 . . . or a fear of persecution.” 8 U.S.C. § 1225(b)(1)(A)(i).

Unless an alien professes a fear of persecution or claims to be a lawful permanent resident (LPR), an expedited removal order “is not subject to administrative appeal.” Id. § 1225(b)(1)(C). However, the Attorney General has the discretion to provide a type of statutory relief to certain aliens: withdrawal of application for admission. See id.
§ 1225(a)(4). When an individual is permitted to “withdraw” his application for admission, he may leave voluntarily and without a removal order, and thus without facing formal immigration consequences. See 8 C.F.R. § 1235.4.

Who is Exempt from Expedited Removal?

Lawful permanent residents, refugees and asylees are exempt from expedited removal. Also exempt are individuals who have been lawfully admitted or paroled into the U.S., most minors, individuals re-entering the U.S. on advance parole and those who can demonstrate that they have been physically present in the U.S. for a continuous period of 2 years or more.

In the past, undocumented immigrants encountered within 100 miles of the border with Mexico or Canada were subject to expedited removal unless they could demonstrate that they had been continuously present in the U.S. for at least 14 days. However, on July 22, 2019, the U.S. Department of Homeland Security announced that it would immediately expand expedited removal to apply to anyone in the U.S. who entered the country unlawfully and who is unable to prove that he/she has resided in the U.S. for 2 years or more.