# Expedited Removal of Aliens: Legal Framework > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/crs%3AR45314 ## Record - **Collection:** Congressional research report - **Document type:** CRS Report - **Published:** October 8, 2019 - **Citation:** R45314 ## Text Expedited Removal of Aliens: Legal Framework Hillel R. Smith Legislative Attorney Updated October 8, 2019 Congressional Research Service 7-.... www.crs.gov R45314 SUMMARY Expedited Removal of Aliens: Legal Framework The federal government has broad authority over the admission of non-U.S. nationals (aliens) seeking to enter the United States. The Supreme Court has repeatedly held that the government may exclude such aliens without affording them the due process protections that traditionally apply to persons physically present in the United States. Instead, aliens seeking entry are entitled only to those procedural protections that Congress has expressly authorized. Consistent with this broad authority, Congress established an expedited removal process for certain aliens who have arrived in the United States without permission. R45314 October 8, 2019 Hillel R. Smith Legislative Attorney -re-acte--@crs.loc.gov For a copy of the full report, please call 7-.... or visit www.crs.gov. In general, aliens whom immigration authorities seek to remove from the United States may challenge that determination in administrative proceedings with attendant statutory rights to counsel, evidentiary requirements, and appeal. Under the streamlined expedited removal process created by the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 and codified in Section 235(b)(1) of the Immigration and Nationality Act (INA), however, certain aliens deemed inadmissible by an immigration officer may be removed from the United States without further administrative hearings or review. INA Section 235(b)(1) applies only to certain aliens who are inadmissible into the United States because they either lack valid entry documents or have attempted to procure their admission through fraud or misrepresentation. The statute generally permits the government to summarily remove those aliens if they are arriving in the United States. The statute also authorizes, but does not require, the government to apply this procedure to aliens who are inadmissible on the same grounds if they have been physically present in the country for less than two years. Immigration authorities currently apply expedited removal in more limited fashion than authorized by statute—in general, the process is applied strictly to covered aliens (1) apprehended when arriving at a designated port of entry; (2) who arrived in the United States by sea without being admitted or paroled into the country by immigration authorities, and who had been physically present in the United States for less than two years; or (3) who were found in the United States within 100 miles of the border within 14 days of entering the country, who had not been admitted or paroled into the United States by immigration authorities. Nevertheless, expedited removal has accounted for a substantial portion of the alien removals each year. And in July 2019, DHS announced that it would expand expedited removal within the broader framework of INA Section 235(b)(1) to eligible aliens apprehended in any part of the United States who have not been admitted or paroled by immigration authorities, and who have been physically present in the country for less than two years. A federal district court, however, has enjoined the implementation of this expansion pending a legal challenge. Although INA Section 235(b)(1) generally confers broad authority on immigration officials to apply expedited removal to certain classes of aliens, in some circumstances an alien subject to expedited removal may be entitled to certain procedural protections before he or she may be removed from the United States. For example, an alien who expresses a fear of persecution may obtain administrative review of his or her claim, and if the alien’s fear is determined credible, the alien will be placed in formal removal proceedings where he or she can pursue asylum and related protections. Additionally, an alien may seek administrative review of a claim that he or she is a U.S. citizen, lawful permanent resident, admitted refugee, or asylee. Unaccompanied alien children also are statutorily exempted from expedited removal. Given the streamlined nature of expedited removal and the broad discretion afforded to immigration officers to implement that process, challenges have been raised contesting the procedure’s constitutionality. In particular, some have argued that the procedure violates aliens’ due process rights because aliens placed in expedited removal do not have the opportunity to seek counsel or contest their removal before a judge or other arbiter. Reviewing courts have largely dismissed such challenges for lack of jurisdiction, or, in the alternative, rejected the claims on the grounds that aliens seeking entry into the United States generally do not have constitutional due process protections. But such cases have concerned aliens arriving at the U.S. border or designated ports of entry, and such aliens may be entitled to lesser constitutional protections than aliens located within the United States. Expanding the expedited removal process to aliens located within the interior could compel courts to tackle questions involving the relationship between the federal government’s broad power over the entry and removal of aliens and the due process rights of aliens located within the United States. Congressional Research Service Expedited Removal of Aliens: Legal Framework Contents Introduction ..................................................................................................................................... 1 Background ..................................................................................................................................... 3 The Government’s Plenary Power and Constitutional Protections for Aliens Subject to Removal ............................................................................................................................. 3 Creation of the Expedited Removal Process ............................................................................. 6 Implementation and Expansion of Expedited Removal ............................................................ 8 Inadmissibility Grounds That Serve as the Basis for Expedited Removal ..................................... 11 Expedited Removal Process .......................................................................................................... 13 Inspection ................................................................................................................................ 14 Inadmissibility Determination and Issuance of Expedited Removal Order ...................... 15 Withdrawal of Application for Admission ........................................................................ 16 Exceptions to Expedited Removal .......................................................................................... 16 Credible Fear Determinations ........................................................................................... 17 Aliens Who Claim to Be U.S. Citizens, Lawful Permanent Residents, Admitted Refugees, or Persons Who Have Been Granted Asylum ............................................... 22 Unaccompanied Children.................................................................................................. 24 Detention and Parole of Aliens Subject to Expedited Removal .................................................... 25 Detention of Aliens in Expedited Removal Proceedings ........................................................ 26 Detention of Aliens Who Establish a Credible Fear of Persecution or Torture................. 26 Detention of Other Applicants for Admission................................................................... 28 Detention of Minors and Accompanying Family Members.............................................. 29 Litigation Concerning Indefinite Detention of Aliens Pending Removal Proceedings ........... 31 Limitations to Judicial Review of an Expedited Order of Removal .............................................. 33 Statutory Framework ............................................................................................................... 33 Habeas Corpus Proceedings .................................................................................................... 34 Challenges to the Expedited Removal System ........................................................................ 34 Collateral Challenges Raised as a Defense During Criminal Proceedings for Unlawful Reentry into the United States ............................................................................................. 35 Constitutional and Legal Challenges to Expedited Removal ........................................................ 37 Challenges to the Expedited Removal System: American Immigration Lawyers Association v. Reno .............................................................................................................. 37 Challenges to Expedited Removal in Individual Cases........................................................... 38 Recent Expansion of Expedited Removal and Legal Implications ............................................... 41 Tables Table 1. Different Forms of Administrative Removal Proceedings Pre- and Post-IIRIRA ............. 8 Table 2. Expansion of Expedited Removal ................................................................................... 10 Table 3. Detention and Parole of Applicants for Admission Placed in Expedited Removal ......... 30 Appendixes Appendix A. Glossary ................................................................................................................... 45 Congressional Research Service Expedited Removal of Aliens: Legal Framework Appendix B. Implementation and Expansion of Expedited Removal: 1997-2019........................ 47 Contacts Author Contact Information .......................................................................................................... 55 Congressional Research Service Expedited Removal of Aliens: Legal Framework Introduction Federal immigration laws set forth procedures governing the exclusion and removal of non-U.S. nationals (aliens) who do not meet specified criteria regarding their entry or presence within the United States.1 Typically, aliens within the United States may not be removed without due process.2 Commensurate with these constitutional protections, the Immigration and Nationality Act (INA) generally affords an alien whose removal is sought with certain procedural guarantees, including the rights to written notice of the charge of removability, to seek counsel, to appear at a hearing before an immigration judge (IJ), to present evidence, to appeal an adverse decision to the Board of Immigration Appeals (BIA), and to seek judicial review.3 Congress, however, has broad authority over the admission of aliens seeking to enter the United States.4 The Supreme Court has repeatedly held that the government may exclude an alien seeking to enter this country without affording him the traditional due process protections that otherwise govern formal removal proceedings; instead, an alien seeking initial entry is entitled only to those procedural protections that Congress expressly authorized.5 Consistent with this broad authority, Section 235(b)(1) of the INA provides for the expedited removal of arriving aliens who do not have valid entry documents or have attempted to gain their admission by fraud or misrepresentation.6 Under this streamlined removal procedure, which Congress established through the Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA) of 1996, such aliens may be summarily removed without a hearing or further review.7 In limited circumstances, however, an alien subject to expedited removal may be entitled to certain procedural protections before he or she may be removed from the United States. For 1 See 8 U.S.C. §§ 1182, 1225(b)(1)(A), 1227, 1228, 1229, 1229a, 1231. 2 See e.g., Demore v. Kim, 538 U.S. 510, 523 (2003) (“‘It is well established that the Fifth Amendment entitles aliens to due process of law in deportation proceedings.’”) (quoting Reno v. Flores, 507 U.S. 292, 306 (1993)); Plyler v. Doe, 457 U.S. 202, 210 (1982) (“Aliens, even aliens whose presence in this country is unlawful, have long been recognized as ‘persons’ guaranteed due process of law by the Fifth and Fourteenth Amendments.”) (citing Shaughnessy v. United States ex rel. Mezei, 345 U.S. 206, 212 (1953); Wong Wing v. United States, 163 U.S. 228, 238 (1896); Yick Wo v. Hopkins, 118 U.S. 356, 369 (1886)). 3 8 U.S.C. §§ 1229(a)(1), 1229a(b)(4); 8 C.F.R. §§ 1003.1(b), 1240.11(a)(2), 1240.15. 4 See e.g., Fiallo v. Bell, 430 U.S. 787, 792 (1977) (“This Court has repeatedly emphasized that ‘over no conceivable subject is the legislative power of Congress more complete than it is over’ the admission of aliens”) (quoting Oceanic Navigation Co. v. Stranahan, 214 U.S. 320, 339 (1909)); Kleindienst v. Mandel, 408 U.S. 753, 765–66 (1972) (“The Court without exception has sustained Congress’ ‘plenary power to make rules for the admission of aliens and to exclude those who possess those characteristics which Congress has forbidden.’”) (quoting Boutilier v. Immigration and Naturalization Serv., 387 U.S. 118, 123 (1967)); Mezei, 345 U.S. at 210 (“Courts have long recognized the power to expel or exclude aliens as a fundamental sovereign attribute exercised by the Government’s political departments largely immune from judicial control.”). 5 Zadvydas v. Davis, 533 U.S. 678, 693 (2001) (“It is well established that certain constitutional protections available to persons inside the United States are unavailable to aliens outside of our geographic borders.”); United States v. Verdugo-Urquidez, 494 U.S. 259, 269 (1990) (“[W]e have rejected the claim that aliens are entitled to Fifth Amendment rights outside the sovereign territory of the United States.”); Landon v. Plasencia, 459 U.S. 21, 32 (1982) (“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”); Fiallo, 430 U.S. at 792 (“[I]n the exercise of its broad power over immigration and naturalization, ‘Congress regularly makes rules that would be unacceptable if applied to citizens.’”) (quoting Mathews v. Diaz, 426 U.S. 67, 80 (1976)). 6 8 U.S.C. § 1225(b)(1)(A). 7 Illegal Immigration Reform and Immigrant Responsibility Act of 1996, P.L. 104-208, § 302, 110 Stat. 3009-546, 579–80 (1996). Congressional Research Service 1 Expedited Removal of Aliens: Legal Framework example, an alien who expresses a fear of persecution may obtain administrative review of his or her claim and, if the review determines that the alien’s fear is credible, the alien will be placed in “formal” removal proceedings where he or she can pursue asylum and related protections.8 Additionally, an alien may seek administrative review of a claim that he or she is a U.S. citizen, lawful permanent resident (LPR), admitted refugee, or asylee.9 Unaccompanied alien children also are not subject to expedited removal.10 In addition to providing for expedited removal of certain arriving aliens, INA Section 235(b)(1) also confers the Secretary of the Department of Homeland Security (DHS) with the ability to expand the use of expedited removal to aliens present in the United States without being admitted or paroled11 if they have been in the country less than two years and do not have valid entry documents or have attempted to gain their admission by fraud or misrepresentation.12 In practice, the government currently employs expedited removal only to such aliens when they (1) are arriving aliens; (2) arrived in the United States by sea within the last two years, and have not been admitted or paroled by immigration authorities; or (3) are found in the United States within 100 miles of the border within 14 days of entering the country, and have not been admitted or paroled by immigration authorities.13 Nevertheless, expedited removal is a major component of immigration enforcement, and in recent years it has been one of the most regularly employed means by which immigration authorities remove persons from the United States.14 And in July 2019, DHS announced that it would expand expedited removal to the full degree authorized by statute: to aliens apprehended in any part of the United States who have not been admitted or paroled by immigration authorities, and who have been physically present in the country for less than two years.15 A federal district court, however, has issued a nationwide injunction barring the implementation of this expansion pending a legal challenge.16 This report provides an overview of the statutory and regulatory framework that governs expedited removal under INA Section 235(b)(1).17 The report also highlights the exceptions to expedited removal, including provisions that permit an alien to seek review of an asylum claim before the alien may be removed. Finally, the report addresses the scope of judicial review of an expedited removal order and some of the legal challenges that have been raised to the expedited 8 8 U.S.C. § 1225(b)(1)(A)(ii), (B)(ii); 8 C.F.R. §§ 208.30(f), 235.3(b)(4), 235.6(a)(1)(ii), 235.6(a)(1)(iii), 1003.42(f), 1208.30(g)(2)(iv)(B). 9 8 U.S.C. § 1225(b)(1)(C); 8 C.F.R. §§ 235.3(b)(5)(i), 235.3(b)(5)(iv), 235.6(a)(2)(ii). 10 8 U.S.C. § 1232(a)(5)(D) (providing for the placement of unaccompanied alien children in formal removal proceedings under INA § 240). 11 Parole is a process by which an alien may be permitted to enter the United States temporarily pending his or her application for admission. 8 U.S.C. § 1182(d)(5); Samirah v. O’Connell, 335 F.3d 545, 547 (7th Cir. 2003) (“Parole allows an alien temporarily to remain in the United States pending a decision on his application for admission.”). 12 8 U.S.C. § 1225(b)(1)(A)(i), (iii). 13 See Notice Designating Aliens Subject to Expedited Removal Under Section 235(b)(1)(A)(iii) of the Immigration and Nationality Act, 67 Fed. Reg. 68,924 (Nov. 13, 2002); Notice Designating Aliens for Expedited Removal, 69 Fed. Reg. 48,877 (Aug. 11, 2004). 14 Bryan Baker, Immigration Enforcement Actions: 2016, DHS OFFICE OF IMMIGRATION STATISTICS (Dec. 2017), https://www.dhs.gov/sites/default/files/publications/Enforcement_Actions_2016.pdf. 15 See Designating Aliens for Expedited Removal, 84 Fed. Reg. 35,409 (July 23, 2019). 16 See Make the Road New York, et al., v. McAleenan, __ F. Supp. 3d. __, 2019 WL 4738070 (Sept. 27, 2019). 17 This report does not address the separate expedited removal procedures for arriving aliens inadmissible on security, terrorist, and related grounds; or the special removal proceedings available for certain incarcerated aliens convicted of aggravated felonies. See 8 U.S.C. §§ 1225(c), 1228. Congressional Research Service 2 Expedited Removal of Aliens: Legal Framework removal process, and briefly considers potential legal issues that may arise if expedited removal were expanded to cover additional categories of aliens present in the United States.18 A glossary of some terms used frequently throughout this report can be found in Appendix A. Background The Government’s Plenary Power and Constitutional Protections for Aliens Subject to Removal The Supreme Court has long recognized the federal government’s authority “to expel or exclude aliens” from the United States.19 The Court has described this authority as a “fundamental act of sovereignty” that stems not only from Congress’s legislative power, but also from “the executive power to control the foreign affairs of the nation.”20 The Court also has repeatedly recognized that an alien’s admission into the United States is a privilege, but the alien lacks a vested right to be admitted into the country.21 Guided by these principles, the Supreme Court has held that the government’s decision to exclude an alien from entering the United States generally lies beyond the scope of judicial review.22 Moreover, the Court has determined, “the decisions of executive or administrative officers, acting within powers expressly conferred by [C]ongress, are due process of law” for aliens seeking to enter this country.23 Thus, the government’s decision to deny entry is often deemed “final and conclusive,” and immigration officials are fully “entrusted with the duty of specifying the procedures” for implementing that authority.24 Initially, the Supreme Court held that the government’s broad authority covered not only the expulsion of foreign nationals seeking to enter the United States, but also aliens who were already within the territorial boundaries of this country.25 The Court explained that “[t]he right of a nation 18 This report does not address the separate expedited removal procedures for aliens inadmissible on security, terrorist, and related grounds; or expedited removal of certain aliens convicted of aggravated felonies. See 8 U.S.C. §§ 1225(c), 1228. 19 Fiallo v. Bell, 430 U.S. 787, 792 (1977); Kleindienst v. Mandel, 408 U.S. 753, 765–66 (1972); Shaughnessy v. United States ex rel. Mezei, 345 U.S. 206, 210 (1953); Fong Yue Ting v. United States, 149 U.S. 698, 711 (1893); Chae Chan Ping v. United States, 130 U.S. 581, 606–09 (1889). 20 United States ex rel. Knauff v. Shaughnessy, 338 U.S. 537, 542 (1950); see also Fong Yue Ting, 149 U.S. at 711 (observing Congress’s “right to exclude or to expel all aliens, or any class of aliens, absolutely or upon certain conditions, in war or in peace, being an inherent and inalienable right of every sovereign and independent nation, essential to its safety, its independence, and its welfare.”). 21 Landon v. Plasencia, 459 U.S. 21, 32 (1982) (“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.”); Knauff, 338 U.S. at 542 (“Admission of aliens to the United States is a privilege granted by the sovereign United States Government.”). 22 Nishimura Ekiu v. United States, 142 U.S. 651, 660 (1892); see also Knauff, 338 U.S. at 543 (“[I]t is not within the province of any court, unless expressly authorized by law, to review the determination of the political branch of the Government to exclude a given alien.”). 23 Ekiu, 142 U.S. at 660; see also Knauff, 338 U.S. at 544 (“Whatever the procedure authorized by Congress is, it is due process as far as an alien denied entry is concerned.”). 24 Knauff, 338 U.S. at 543. 25 Fong Yue Ting, 149 U.S. at 707 (discussing the deportation of Chinese immigrants under the Chinese Exclusion Act); Wong Wing v. United States, 163 U.S. 228, 236–38 (1896) (holding that the government could summarily expel aliens already residing within the United States, but that it could not subject such aliens to criminal punishment on Congressional Research Service 3 Expedited Removal of Aliens: Legal Framework to expel or deport foreigners who have not been naturalized, or taken any steps towards becoming citizens of the country, rests upon the same grounds, and is as absolute and unqualified, as the right to prohibit and prevent their entrance into the country.”26 Gradually, the Supreme Court modified its position regarding the reach of the government’s authority. For example, the Court determined that lawfully admitted aliens were entitled to Fifth Amendment due process protections in formal removal proceedings.27 The Court explained that “once an alien lawfully enters and resides in this country he becomes invested with the rights guaranteed by the Constitution to all people within our borders.”28 In these circumstances, the alien is “entitled to notice of the nature of the charge and a hearing at least before an executive or administrative tribunal.”29 The Supreme Court eventually went further and declared that all aliens who have entered the United States—including those who entered unlawfully—may not be removed without due process.30 The Court declared that aliens physically present in the United States, regardless of their legal status, are recognized as “persons” guaranteed due process of law by the Fifth and Fourteenth Amendments.31 Consequently, the Court reasoned, “[e]ven one whose presence in this country is unlawful, involuntary, or transitory is entitled to that constitutional protection.”32 But while the Supreme Court has recognized that due process considerations may constrain the federal government’s exercise of its immigration power, there is some uncertainty regarding when these considerations may be consequential in light of the Court’s recognition that the nature of an alien’s constitutional protections “may vary depending upon [the alien’s] status and circumstance.”33 Although the Supreme Court has afforded due process protections to aliens physically present in the United States, the Court has consistently held that aliens seeking to enter the country may not avail themselves of those same protections.34 The Court has reasoned that, although “aliens who account of their unlawful presence without due process). 26 Fong Yue Ting, 149 U.S. at 707. 27 Yamataya v. Fisher, 189 U.S. 86, 101 (1903); Kwong Hai Chew v. Colding, 344 U.S. 590, 596–98 (1953); Jay v. Boyd, 351 U.S. 345, 359 (1956); Landon v. Plasencia, 459 U.S. 21, 32–33 (1982). 28 Kwong Hai Chew, 344 U.S. at 596 n. 5 (quoting Bridges v. Wixon, 326 U.S. 135, 161 (1945) (Murphy, J., concurring)); see also Yamataya, 189 U.S. at 101 (concluding that “an alien who has entered the country, and has become subject in all respects to its jurisdiction, and a part of its population” may not be deported without due process). 29 Kwong Hai Chew, 344 U.S. at 597. 30 Shaughnessy v. United States ex rel. Mezei, 345 U.S. 206, 212 (1953); Mathews v. Diaz, 426 U.S. 67, 77 (1976); Plyler v. Doe, 457 U.S. 202, 210 (1982). For further discussion of the application of the Due Process Clause in the immigration context, including how the Clause might apply differently to aliens arriving at the U.S. border than those found in the interior, see CRS Report R45915, Immigration Detention: A Legal Overview, by Hillel R. Smith, at 2-5. 31 Plyler, 457 U.S. at 210 (citing Mezei, 345 U.S. at 212; Wong Wing v. United States, 163 U.S. 228, 238 (1896)); Yick Wo v. Hopkins, 118 U.S. 356, 369 (1886)). 32 Mathews, 426 U.S. at 77; see also Zadvydas v. Davis, 533 U.S. 678, 693 (2001) (explaining that the Due Process Clause applies “to all ‘persons’ within the United States, including aliens, whether their presence here is lawful, unlawful, temporary, or permanent”); Ibrahim v. Dep’t of Homeland Sec., 669 F.3d 983, 994 (9th Cir. 2012) (“Even aliens who are in the United States illegally may bring constitutional challenges.”). 33 Zadvydas, 533 U.S. at 694. 34 See Landon v. Plasencia, 459 U.S. 21, 32 (1982) (“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.”). The Supreme Court, however, has held that a returning LPR has a due process right to a hearing before he or she may be denied admission. See id. at 33 (describing Supreme Court precedent “as holding ‘that the returning resident alien is entitled as a matter of due process to a hearing on the charges underlying any attempt to exclude him’”) (quoting Rosenberg v. Fleuti, 374 U.S. 449, 460 (1963)); Kwong Hai Chew, Congressional Research Service 4 Expedited Removal of Aliens: Legal Framework have once passed through our gates, even illegally, may be expelled only after proceedings conforming to traditional standards of fairness encompassed in due process of law,” an alien “on the threshold of initial entry stands on a different footing” because, theoretically, the alien is outside of the geographic boundaries of the United States, and thus beyond the scope of constitutional protection.35 This distinction, known as the “entry fiction” doctrine, allows courts to treat an alien seeking admission as though he or she had never entered the country, even if the alien is, technically, physically within U.S. territory, such as at a border checkpoint or airport.36 In those circumstances, the alien is legally considered to be “standing on the threshold of entry,” and outside the territorial jurisdiction of the United States.37 By contrast, once an alien “enters” the country, “the legal circumstance changes,” and the alien may become subject to constitutional rights and protections.38 The Supreme Court has applied this principle not only with respect to aliens seeking entry into the United States, but also to aliens seeking entry who are detained within the country’s borders pending determinations of their admissibility. For example, in United States ex rel. Knauff v. Shaughnessy, the German wife of a U.S. citizen challenged her exclusion without a hearing under the War Brides Act.39 The German national was detained at Ellis Island during her proceedings, and, therefore, technically within U.S. territory.40 Nevertheless, the Supreme Court held that the government had the “inherent executive power” to deny her admission, and that “[w]hatever the procedure authorized by Congress is, it is due process as far as an alien denied entry is concerned.”41 Similarly, in Shaughnessy v. United States ex rel. Mezei, an alien detained on Ellis Island for more than 21 months argued that the government’s decision to deny admission without a hearing violated due process.42 Citing “the power to expel or exclude aliens as a fundamental sovereign 344 U.S. at 600–01 (holding that a returning LPR was entitled to a hearing because he retained the same constitutional rights that he enjoyed prior to leaving the United States); Matter of Huang, 19 I. & N. Dec. 749, 754 (BIA 1988) (“For purposes of the constitutional right to due process, a returning lawful permanent resident’s status is assimilated to that of an alien continuously residing and physically present in the United States.”) (citing Kwong Hai Chew, 344 U.S. at 596). Moreover, under the INA, a returning LPR is not considered an applicant for admission except in certain circumstances. 8 U.S.C. § 1101(a)(13)(C). And before IIRIRA, the Supreme Court had interpreted the term “entry” in the INA as excluding an LPR’s return to the United States following “an innocent, casual, and brief excursion” outside the country. Fleuti, 374 U.S. at 462. 35 Mezei, 345 U.S. at 212; see also Kaplan v. Tod, 267 U.S. 228, 230–31 (1925) (an alien denied entry and initially held at Ellis Island was, notwithstanding her subsequent transfer to the custody of another entity while awaiting removal, “still in theory of law at the boundary line and had gained no foothold in the United States”) (citing Nishimura Ekiu v. United States, 142 U.S. 651, 661 (1892)). 36 Zadvydas, 533 U.S. at 693 (“The distinction between an alien who has effected an entry into the United States and one who has never entered runs throughout immigration law. It is well established that certain constitutional protections available to persons inside the United States are unavailable to aliens outside of our geographic borders.”). 37 Alvarez-Garcia v. Ashcroft, 378 F.3d 1094, 1097 (9th Cir. 2004); but see Rodriguez v. Robbins, 804 F.3d 1060, 1082–83 (9th Cir. 2015) (holding that, “to avoid serious constitutional concerns,” mandatory detention provisions for aliens subject to expedited removal should be subject to six-month time limitation because aliens seeking to enter the United States could in some cases include returning LPRs, who are not subject to the entry fiction doctrine and entitled to due process protections), rev’d sub nom. Jennings v. Rodriguez, 138 S. Ct. 830 (2018). 38 Zadvydas, 533 U.S. at 693. 39 United States ex rel. Knauff v. Shaughnessy, 338 U.S. 537, 539–40 (1950). 40 Id. at 539. 41 Id. at 544. 42 Shaughnessy v. United States ex rel. Mezei, 345 U.S. 206, 207–09 (1953). Congressional Research Service 5 Expedited Removal of Aliens: Legal Framework attribute exercised by the Government’s political departments,” the Court determined that the Executive was authorized to deny entry without a hearing, and that the decision was not subject to judicial review.43 Further, the Court held, although the alien had “temporary harborage” inside the United States pending his exclusion proceedings, he had not effected an “entry” for purposes of immigration law, and could be “treated as if stopped at the border.”44 Therefore, existing Supreme Court jurisprudence recognizes that the federal government has broad plenary power over the admission and exclusion of aliens seeking to enter the United States, and may deny admission without affording due process protections such as the right to a hearing. Aliens seeking entry are thus generally entitled only to those protections that Congress explicitly authorized.45 Conversely, an alien who has entered the United States is generally entitled to due process protections prior to removal.46 Under the “entry fiction” doctrine, however, aliens who are detained within the United States pending a determination of their admissibility may be “treated, for constitutional purposes” as though they have not entered this country.47 The extent to which the entry fiction doctrine may apply to aliens who are already within the United States remains an unresolved question. While some courts have held that aliens apprehended near the U.S. border may be treated as though they had not effected an entry into the country, the degree to which this principle may be applied to aliens within the interior of the United States is unclear.48 Creation of the Expedited Removal Process Congress established the expedited removal process when it enacted IIRIRA in 1996.49 Before IIRIRA, federal immigration law distinguished between arriving aliens and aliens who had entered the United States. Based on this distinction, there were two types of proceedings to determine whether an alien should be removed: exclusion proceedings, which were “the usual means of proceeding against an alien outside the United States seeking admission,” and deportation proceedings, which applied to aliens “already physically in the United States.”50 In both types of proceedings, however, the alien had statutory rights to counsel, a hearing, and administrative and judicial review before he or she could be removed from the United States.51 43 Id. at 210–12. 44 Id. at 212–15 (citations omitted). The Court also held that the alien could not be construed as having “entered” the country despite having previously lived in the United States. Id. at 213. 45 See Guzman v. Tippy, 130 F.3d 64, 66 (2d Cir. 1997) (“An excluded alien’s rights are determined by the procedures established by Congress and not by the due process protections of the Fifth Amendment.”). 46 Zadvydas v. Davis, 533 U.S. 678, 693 (2001). 47 Id. 48 See e.g., Castro v. Dep’t of Homeland Sec., 835 F.3d 422, 445–50 (3d Cir. 2016) (holding that aliens “apprehended within hours of surreptitiously entering the United States” could not raise a constitutional challenge to their expedited removal because they were “recent clandestine entrants” who could be treated, under the entry fiction doctrine, as aliens seeking initial admission to the country who lack constitutional protections), cert. denied 137 S. Ct. 1581 (2017); M.S.P.C. v. U.S. Customs and Border Prot., 60 F. Supp. 3d 1156, 1175 (D.N.M. 2014) (“Petitioner, who undisputedly crossed approximately nine miles over the border and was apprehended within 30 minutes of crossing, does not have any substantial ties to this country to place the nature of her rights near those of a permanent resident. Thus, for purposes of the constitutional right to due process, Petitioner’s status is assimilated to that of an arriving alien.”). 49 Illegal Immigration Reform and Immigrant Responsibility Act of 1996, P.L. 104-208, § 302, 110 Stat. 3009-546, 579–585, 625 (1996). 50 Landon v. Plasencia, 459 U.S. 21, 25 (1982). 51 8 U.S.C. §§ 1105a(a)(1), 1105a(b), 1225(b), 1226(b), 1251(b), 1362 (1995). Congressional Research Service 6 Expedited Removal of Aliens: Legal Framework Confronted with what it perceived as mounting levels of unlawful migration,52 Congress enacted IIRIRA in 1996 and made sweeping changes to the federal immigration laws.53 One major shift was to replace the exclusion/deportation framework, which turned on whether an alien had physically entered the United States, with a new framework that turned on whether an alien had been lawfully admitted into the country by immigration authorities.54 Under the new framework, aliens who were lawfully admitted could be removed from the United States if they fell under the grounds of deportability listed in INA Section 237(a).55 On the other hand, aliens who had not been admitted into the United States—whether first arriving to the United States or having entered the country without being lawfully admitted—could be denied admission and removed from the United States if they fell under the grounds of inadmissibility listed in INA Section 212(a).56 Secondly, IIRIRA removed the distinction between deportation and exclusion proceedings. Instead, it established a standard, “formal” removal proceeding under INA Section 240 applicable to aliens regardless of whether they are charged with being inadmissible or deportable.57 These formal removal proceedings generally entail the same statutory rights and protections that previously governed deportation proceedings.58 IIRIRA also created a new, expedited removal process generally required for certain arriving aliens.59 This expedited removal process, codified in INA Section 235, does not apply to all arriving aliens who are believed inadmissible, but only to those who are inadmissible because they lack valid entry documents or have attempted to procure their admission through fraud or misrepresentation.60 Under this new procedure, the federal government could summarily remove these aliens without a hearing or further review unless they expressed an intent to apply for asylum or a fear of persecution.61 In a separate provision, Congress gave the Attorney General (now the Secretary of DHS) “the sole and unreviewable discretion” to apply this procedure to “certain other aliens” inadmissible on the same grounds if (1) they were not admitted or paroled into the United States, and (2) they could not establish that they have been physically present in the United States continuously for two years at the time of their apprehension.62 Table 1 illustrates the differences between expedited removal proceedings, pre-IIRIRA deportation/exclusion proceedings, and post-IIRIRA formal removal proceedings. 52 S.Rept. 104-249, at 1, 3 (1996). 53 See generally Illegal Immigration Reform and Immigrant Responsibility Act of 1996. 54 Id. § 304, 110 Stat. at 587-88 (codified at 8 U.S.C. §§ 1229, 1229a). 55 Id. § 304, 110 Stat. at 589 (codified at 8 U.S.C. § 1229a). 56 Id. § 304, 110 Stat. at 593 (codified at 8 U.S.C. § 1229a). 57 Id. § 304, 110 Stat. at 594 (codified at 8 U.S.C. §§ 1229, 1229a). See also Vartelas v. Holder, 566 U.S. 257, 262–63 (2012) (discussing changes made by IIRIRA). 58 IIRIRA § 304, 110 Stat. at 596-98 (codified at 8 U.S.C. §§ 1229, 1229a). 59 Id. § 302, 110 Stat. at 579-84 (codified at 8 U.S.C. § 1225(b)(1)(A)(i)). 60 Id. 61 Id. 62 Id. § 302, 110 Stat. at 580-81 (codified at 8 U.S.C. § 1225(b)(1)(A)(iii)(I)). Congressional Research Service 7 Expedited Removal of Aliens: Legal Framework Table 1. Different Forms of Administrative Removal Proceedings Pre- and PostIIRIRA Right to Administrative Appeal and Judicial Review Type of Proceedings Covered Aliens Right to Counsel Right to Administrative Hearing Pre-IIRIRA Exclusion Proceedings Arriving aliens seeking entry into the United States Yes Yes Yes Pre-IIRIRA Deportation Proceedings Aliens who already entered the United States Yes Yes Yes Post-IIRIRA Expedited Removal Proceedings Arriving aliens who are inadmissible because they lack valid entry documents or have sought admission through fraud (may also include aliens inadmissible on same grounds if they are present in the United States without being admitted or paroled and have been in the country less than two years) No No No Post-IIRIRA Formal Removal Proceedings Most aliens unless they meet the criteria for expedited removal or another type of removal process Yes Yes Yes Source: 8 U.S.C. §§ 1105a(a)(1), 1105a(b), 1225(b), 1226(b), 1251(b), 1362 (1995); 8 U.S.C. §§ 1225(b)(1)(A), 1229, 1229a. Implementation and Expansion of Expedited Removal Following IIRIRA, the former Immigration and Naturalization Service (INS)63 initially applied the new expedited removal authority to circumstances mandated by the governing statute (i.e., to arriving aliens), and not to other circumstances where the Attorney General was authorized (but not required) to exercise such authority.64 In addition, because the expedited removal provisions 63 On March 1, 2003, the INS ceased to exist as an independent agency under the U.S. Department of Justice, and its functions were transferred to DHS. See Homeland Security Act of 2002, P.L. 107-296, §§ 101, 441, 451, 471, 116 Stat. 2135, 2142, 2192, 2195, 2205 (2002). Within DHS, most of the functions were transferred to three new entities: U.S. Immigration and Customs Enforcement (ICE), U.S. Citizenship and Immigration Services (USCIS), and U.S. Customs and Border Protection (CBP). See id. §§ 401, 411, 442, 451. 64 Inspection and Expedited Removal of Aliens, 62 Fed. Reg. 10,312, 10,313–14 (Mar. 6, 1997); see also SYMPOSIUM, Procedures for Expedited Removal and Asylum Screening Under the Illegal Immigration Reform and Immigrant Congressional Research Service 8 Expedited Removal of Aliens: Legal Framework exempted aliens from countries in the Western Hemisphere whose governments did not have full diplomatic relations with the United States, and who arrived by aircraft at a port of entry,65 Cuban nationals who arrived in the United States by aircraft were not subject to expedited removal.66 While the expedited removal statute governs the removal of certain aliens who are “arriving” in the United States, it does not define this group. When promulgating regulations implementing the new expedited removal authority, the INS defined the term “arriving alien” to include (1) aliens seeking admission into the United States at a port of entry, (2) aliens seeking transit through the United States at a port of entry, and (3) aliens who have been interdicted at sea 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.”67 Over the years, however, the INS and its successor agency DHS gradually expanded the implementation of expedited removal authority to cover (1) aliens who entered the United States by sea without being admitted or paroled by immigration authorities, and who have been in the country less than two years;68 (2) aliens apprehended within 100 miles of the U.S. border within 14 days of entering the country, and who have not been admitted or paroled by immigration authorities;69 and, (3) ultimately, Cuban nationals who met the criteria for expedited removal.70 More recently, DHS exercised its authority to employ expedited removal to the full degree authorized by INA Section 235(b)(1), to include all aliens physically present in the United States without being admitted or paroled, who have been in the country less than two years, and who fall under the expedited removal statute’s specified grounds of inadmissibility.71 A federal district court, however, has issued a nationwide injunction barring DHS from enforcing the expedited removal expansion pending a legal challenge.72 Responsibility Act of 1996, 29 CONN. L. REV. 1501, 1505, 1520 (1997). 65 8 U.S.C. § 1225(b)(1)(F). 66 8 C.F.R. § 235.3(b)(1)(i) (1997). At the time IIRIRA was passed in 1996, the United States did not have diplomatic relations with Cuba. See Eliminating Exception to Expedited Removal Authority for Cuban Nationals Arriving by Air, 82 Fed. Reg. 4769, 4769 (Jan. 17, 2017) (noting that the United States and Cuba lacked full diplomatic relations for many years). 67 Inspection and Expedited Removal of Aliens, 62 Fed. Reg. 444, 445 (Jan. 3, 1997); 8 C.F.R. § 1.2. In its notice of these regulations, the INS recognized that “[a]n exception is provided for Cuban nationals arriving by aircraft at a portof-entry.” Inspection and Expedited Removal of Aliens, 62 Fed. Reg. at 444-45; see also 8 U.S.C. § 1225(b)(1)(F) (statutory exception for aliens from countries in the Western Hemisphere whose government does not have diplomatic relations with the United States and who arrived by aircraft). The INS amended the definition of “arriving alien” to exempt from expedited removal aliens who were paroled into the United States before April 1, 1997 (the effective date of IIRIRA), as well as aliens who, either before or after April 1, 1997, returned to the United States pursuant to a grant of advance parole that they applied for and obtained while physically present in the United States and prior to their departure from this country. Amendment of the Regulatory Definition of Arriving Alien, 63 Fed. Reg. 19,382, 19,382 (Apr. 20, 1998). 68 Notice Designating Aliens Subject to Expedited Removal Under Section 235(b)(1)(A)(iii) of the Immigration and Nationality Act, 67 Fed. Reg. 68,924, 68,924 (Nov. 13, 2002). 69 Designating Aliens for Expedited Removal, 69 Fed. Reg. 48,877, 48,877 (Aug. 11, 2004). 70 Following the restoration of diplomatic relations with Cuba in 2015, DHS eliminated the exceptions to expedited removal that it had implemented for Cuban nationals. See Eliminating Exception to Expedited Removal Authority for Cuban Nationals Arriving by Air, 82 Fed. Reg. at 4770; Eliminating Exception to Expedited Removal Authority for Cuban Nationals Encountered in the United States or Arriving by Sea, 82 Fed. Reg. 4902 (Jan. 17, 2017). 71 Designating Aliens for Expedited Removal, 84 Fed. Reg. 35,409 (July 23, 2019). DHS’s nationwide expansion of expedited removal has been preliminarily enjoined pending the outcome of a lawsuit legally challenging the implementation of that expansion. 72 See Make the Road New York, et al., v. McAleenan, __ F. Supp. 3d. __, 2019 WL 4738070, *3 (D.D.C. Sept. 27, Congressional Research Service 9 Expedited Removal of Aliens: Legal Framework Table 2 shows how the INS and DHS have implemented their expedited removal authority since 1997. (A more comprehensive discussion about the exercise of expedited removal authority over time can be found in Appendix B.) Table 2. Expansion of Expedited Removal Category Federal Register Notice Date of Notice Description Arriving Aliens 62 Fed. Reg. 10,312 March 6, 1997 Aliens seeking entry at a designated port of entry, aliens seeking transit through the United States at a port of entry, and aliens who have been interdicted at sea and brought into the United States “by any means, whether or not to a designated port-ofentry, and regardless of the means of transport.” Aliens who Arrived in the United States by Sea 67 Fed. Reg. 68,924 November 13, 2002 Aliens who arrived in the United States by sea, “either by boat or other means,” who (1) have not been admitted or paroled and (2) have been physically present in the United States for less than two years. Aliens Unlawfully Present in Border Regionsa 69 Fed. Reg. 48,877 August 11, 2004 Aliens apprehended within 100 miles of border within 14 days of entering the United States, who have not been admitted or paroled. Cuban Nationals 82 Fed. Reg. 4769; 82 Fed. Reg. 4902 January 17, 2017 All Cuban nationals who fall within the categories of aliens currently subject to expedited removal. 2019) (preliminarily enjoining DHS “from enforcing the expedited removal expansion that the Acting DHS Secretary prescribed in the July 23rd Notice while the instant claims are being litigated, pending further order of this Court”). Congressional Research Service 10 Expedited Removal of Aliens: Legal Framework Category Aliens Unlawfully Present in the Interior (not currently in effect) a. Federal Register Notice 84 Fed. Reg. 35,409 Date of Notice July 23, 2019 Description Aliens apprehended anywhere in the United States within two years of entering the country, who have not been admitted or paroled. Discussion of DHS’s implementation of this expansion from designated sectors of the U.S.-Mexico land border in 2004 to the entirety of the U.S. international borders in 2006 is found in Appendix B. Inadmissibility Grounds That Serve as the Basis for Expedited Removal As noted above, DHS’s expedited removal authority currently is exercised with regard to the following three overarching categories of aliens: 1. Arriving aliens seeking entry into the United States at a designated port of entry. 2. Aliens who arrived in the United States by sea, who have not been admitted or paroled, and who have been in this country for less than two years. 3. Aliens who are encountered within 100 miles of the border, who have not been admitted or paroled, and who have been in the United States for less than 14 days.73 Aliens in these categories are subject to expedited removal only if they fall under the grounds of inadmissibility found in INA Section 212(a)(6)(C) and (a)(7).74 These grounds of inadmissibility generally apply to aliens who lack valid entry documents or who attempt to procure admission through fraud or misrepresentation.75 More specifically, the two inadmissibility grounds apply to the following:  An alien who is not in possession of (1) a valid unexpired immigrant visa, reentry permit, border crossing identification card, or other valid entry document; and (2) a valid unexpired passport, or other suitable travel document, or document of identity and nationality if required under applicable regulations.76 This provision applies, for example, to aliens who arrive with proper documents for entry into 73 8 U.S.C. § 1225(b)(1)(A)(i), (iii)(II); 8 C.F.R. § 235.3(b)(1)(i), (ii); see Notice Designating Aliens Subject to Expedited Removal Under Section 235(b)(1)(A)(iii) of the Immigration and Nationality Act, 67 Fed. Reg. 68,924 (Nov. 13, 2002); Designating Aliens for Expedited Removal, 69 Fed. Reg. 48,877 (Aug. 11, 2004). As noted, although DHS sought to expand the use of expedited removal nationwide, see Designating Aliens for Expedited Removal, 84 Fed. Reg. 35,409 (July 23, 2019), that expansion has been enjoined pending legal challenge. See Make the Road New York, et al., v. McAleenan, __ F. Supp. 3d. __, 2019 WL 4738070 (D.D.C. Sept. 27, 2019). 74 8 U.S.C. § 1225(b)(1)(A)(i). 75 Id. § 1182(a)(6)(C), (a)(7). 76 Id. § 1182(a)(7)(A)(i)(I). DHS may waive this ground of inadmissibility if the alien is otherwise admissible, and was unaware that he or she lacked valid entry or travel documents, and could not have discovered the lack of necessary documents through reasonable diligence before his or her departure from outside the United States. Id. § 1182(a)(7)(A)(ii), (k). Congressional Research Service 11 Expedited Removal of Aliens: Legal Framework      the United States for certain purposes, but who intend to enter the United States for reasons that require different authorizing documents.77 An alien whose immigrant visa has been issued in violation of the provisions regarding the numerical limitations on the distribution of immigrant visas.78 An alien whose passport will expire within six months after his or her authorized period of stay in the United States.79 An alien who is not in possession of a valid nonimmigrant visa or border crossing identification card at the time of his or her application for admission.80 An alien who seeks to procure (or has attempted to procure or has procured) a visa, other documentation, or admission into the United States or other immigration benefit through fraud or willful misrepresentation (e.g., an alien presenting a photo-substituted passport, or providing false information on a visa application).81 An alien who falsely represents (or has falsely represented) himself to be a U.S. citizen.82 Importantly, expedited removal is available in cases where the alien is charged only with being inadmissible under these grounds. If an immigration officer determines that an alien is inadmissible on additional grounds (e.g., because the alien has engaged in specified criminal activity), then the alien will be placed in formal removal proceedings under INA Section 240.83 77 See id. § 1184(b) (providing that every alien “shall be presumed to be an immigrant until he establishes to the satisfaction of the consular officer, at the time of application for a visa, and the immigration officers, at the time of application for admission, that he is entitled to a nonimmigrant status”); Smith v. U.S. Customs & Border Prot., 741 F.3d 1016, 1021 (9th Cir. 2014) (discussing application of expedited removal statute to a Canadian national who sought entry into the United States and was deemed to be an intending immigrant because he carried large quantities of undeclared cash and flyers advertising his photography business in Arizona, and he convinced the CBP officer that he intended to work in the United States rather than come as a temporary visitor). 78 8 U.S.C. § 1182(a)(7)(A)(i)(II). DHS may waive this ground of inadmissibility if the alien is otherwise admissible, and was unaware that he or she did not have a properly issued immigrant visa, and could not have discovered it through reasonable diligence before his or her departure from outside the United States. Id. § 1182(a)(7)(A)(ii), (k). 79 Id. § 1182(a)(7)(B)(i)(I). DHS may waive this requirement “(A) on the basis of unforeseen emergency in individual cases, or (B) on the basis of reciprocity with respect to nationals of foreign contiguous territory or of adjacent islands and residents thereof having a common nationality with such nationals, or (C) in the case of aliens proceeding in immediate and continuous transit through the United States pursuant to a contract with transportation companies to guarantee passage through the United States to foreign countries.” Id. § 1182(d)(4); see also id. §§ 1182(a)(7)(B)(ii), 1223(c). 80 Id. § 1182(a)(7)(B)(i)(II). DHS may waive this requirement “(A) on the basis of unforeseen emergency in individual cases, or (B) on the basis of reciprocity with respect to nationals of foreign contiguous territory or of adjacent islands and residents thereof having a common nationality with such nationals, or (C) in the case of aliens proceeding in immediate and continuous transit through the United States pursuant to a contract with transportation companies to guarantee passage through the United States to foreign countries.” Id. § 1182(d)(4); see also id. §§ 1182(a)(7)(B)(ii), 1223(c). 81 Id. § 1182(a)(6)(C)(i). This provision may be waived if the alien is the spouse, son, or daughter of a U.S. citizen or lawful permanent resident, and establishes that the denial of the alien’s admission would result in “extreme hardship” to the citizen or lawful permanent resident spouse or parent. Id. §§ 1182(a)(6)(C)(iii), 1182(i)(1). This waiver provision does not apply to aliens who falsely claim to be U.S. citizens. Id. § 1182(a)(6)(C)(iii). 82 Id. § 1182(a)(6)(C)(ii). This provision does not apply if the alien’s natural or adoptive parents are or were U.S. citizens, the alien permanently resided in the United States before turning 16, and the alien “reasonably believed at the time of making such representation that he or she was a citizen.” Id. § 1182(a)(6)(C)(ii)(II). 83 Id. § 1225(b)(2)(A) (inspection of other aliens); 8 C.F.R. § 235.3(c). Congressional Research Service 12 Expedited Removal of Aliens: Legal Framework Expedited Removal Process INA Section 235(b)(1) instructs that an immigration officer must inspect an alien and determine whether the alien falls within the category of inadmissible aliens subject to expedited removal.84 If the alien meets the criteria for expedited removal, the alien will be ordered removed without a hearing or further review, unless the alien indicates an intent to apply for asylum or a fear of persecution.85 The alien will also be barred from reentering the United States for five years, with lengthier or even permanent bars to admission if special factors are present.86 While expedited removal is a more streamlined process than formal removal proceedings, it nonetheless can involve a number of determinations by multiple agencies and agency subcomponents—particularly in cases where an alien intends to apply for asylum or expresses a more generalized fear of persecution that could potentially render the alien eligible for relief from removal. U.S. Customs and Border Protection (CBP), the DHS component with primary responsibility for immigration enforcement along the border and at designated ports of entry,87 typically takes the lead role in the expedited removal process, from the initial inspection or apprehension of the alien through the issuance of an order of expedited removal.88 U.S. Immigration and Customs Enforcement (ICE), the DHS component primarily responsible for interior enforcement and removal, also regularly plays a significant role, such as when the alien seeks asylum or expresses a fear of persecution, and ICE takes responsibility for the alien’s detention and removal.89 Another DHS component, U.S. Citizenship and Immigration Services (USCIS), is responsible for interviewing aliens who have claimed a fear of persecution and assesses whether such claims are credible.90 If such claims are not deemed credible, the agency may issue an expedited removal order.91 Finally, IJs within the Department of Justice’s Executive Office for Immigration Review may become involved in the expedited removal process when either (1) an IJ is asked to review a USCIS determination that an alien does not have a credible fear of persecution or (2) in the event that an alien is determined to have a credible fear, the alien is placed in formal removal proceedings before an IJ where the alien’s claim for relief can be adjudicated.92 84 8 U.S.C. § 1225(a)(3), (b)(1)(A)(i). 85 Id. § 1225(b)(1)(A)(i), (iii)(I); 8 C.F.R. § 235.3(b)(2)(i). 86 8 U.S.C. § 1182(a)(9)(A)(i). In the case of a second or subsequent removal, the alien is barred from seeking admission to the United States within 20 years. Id. If the alien is convicted of an aggravated felony, there is a permanent bar to reentry. Id. In addition, an alien who unlawfully enters the United States following an expedited removal is permanently barred from admission. Id. § 1182(a)(9)(C)(i)(II). These statutory bars, however, are subject to waivers where DHS has consented to the alien applying for admission. Id. § 1182(a)(9)(A)(iii), (C)(ii). 87 See 6 U.S.C. § 211(c) (listing functions of CBP). 88 See Jill E. Family, The Executive Power of Process in Immigration Law, 91 CHI.-KENT L. REV. 59, 75–76 (2016) (discussing CBP’s responsibilities and expedited removal authority). Within CBP, the U.S. Border Patrol is the agency component primarily charged with the apprehension of aliens unlawfully entering the United States or who have recently entered the country unlawfully away from a designated point of entry. See 6 U.S.C. § 211(e)(3). 89 See 6 U.S.C. §§ 251, 252 (conferring immigration enforcement functions); Family, supra note 88, at 63 (discussing ICE’s interior enforcement responsibilities). 90 See Credible Fear Screenings, U.S. CITIZENSHIP & IMMIGRATION SERVS., http://www.uscis.gov/unassigned/crediblefear-screenings (last modified Sept. 26, 2008). 91 8 C.F.R. § 208.30(g)(1)(ii). 92 See 8 U.S.C. § 1225(b)(1)(B)(ii) (referral of aliens who have a credible fear of persecution to an IJ for consideration of asylum application in formal removal proceedings), (iii)(III) (providing for an IJ’s review of a negative credible fear determination by USCIS). Congressional Research Service 13 Expedited Removal of Aliens: Legal Framework The following sections provide further explanation of the expedited removal process. Inspection An alien arriving in the United States or an alien present in the United States who has not been admitted is considered an “applicant for admission” who is subject to inspection by an immigration officer.93 At a designated port of entry, the initial phase of the inspection process is referred to as “primary inspection.”94 During this stage, “the immigration officer literally has only a few seconds to examine documents, run basic lookout queries, and ask pertinent questions to determine admissibility and issue relevant entry documents.”95 If the immigration officer finds discrepancies in the alien’s documents or statements, “or if there are any other problems, questions, or suspicions that cannot be resolved within the exceedingly brief period allowed for primary inspection,” the alien will be referred to “secondary inspection” for “a more thorough inquiry.”96 During secondary inspection, the immigration officer often will not know if the alien is subject to expedited removal until the officer has sufficiently questioned the alien to assess whether the alien is inadmissible.97 In order to make that determination, the immigration officer may obtain statements under oath about the purpose and intention of the applicant in coming to the United States.98 DHS regulations provide that “[i]nterpretative assistance shall be used if necessary to communicate with the alien.”99 At other locations (e.g., in cases where the alien is found between ports of entry), an alien who is apprehended by immigration authorities is typically taken to a U.S. Border Patrol station for inspection and processing to determine whether the alien is inadmissible and subject to expedited removal.100 93 Id. § 1225(a)(1) (defining an “applicant for admission” as “[a]n alien present in the United States who has not been admitted or who arrives in the United States (whether or not at a designated port of arrival and including an alien who is brought to the United States after having been interdicted in international or United States waters)”), (3) (“All aliens (including alien crewmen) who are applicants for admission or otherwise seeking admission or readmission to or transit through the United States shall be inspected by immigration officers.”). DHS, however, may as a matter of discretion parole an alien and defer his or her inspection to another location if there is insufficient documentation for the immigration officer to determine whether the alien is inadmissible. 8 C.F.R. § 235.2; see also Deferred Inspection, U.S. CUSTOMS & BORDER PROT., https://www.cbp.gov/contact/deferred-inspection/overview-deferred-inspection (last modified Apr. 4, 2018). 94 Inspection and Expedited Removal of Aliens, 62 Fed. Reg. 10,312, 10,318 (Mar. 6, 1997). 95 Id. 96 Id. An alien may also be referred to secondary inspection “for routine matters, such as processing immigration documents and responding to inquiries.” Id. 97 Id. 98 8 U.S.C. § 1225(a)(5); see also id. § 1225(d)(3) (“The [Secretary] and any immigration officer shall have power to administer oaths and to take and consider evidence of or from any person touching the privilege of any alien or person he believes or suspects to be an alien to enter, reenter, transit through, or reside in the United States or concerning any matter which is material and relevant to the enforcement of this chapter and the administration of [DHS].”). 99 8 C.F.R. § 235.3(b)(2)(i). 100 See 8 U.S.C. § 1225(a)(3) (requiring all applicants for admission to be inspected by immigration officers); Zero Tolerance Immigration Prosecutions—Family Fact Sheet, U.S. CUSTOMS & BORDER PROT., https://www.cbp.gov/ newsroom/zero-tolerance-immigration-prosecutions-family-fact-sheet (last modified June 15, 2018) (indicating that individuals apprehended by Border Patrol are taken to stations for processing). Congressional Research Service 14 Expedited Removal of Aliens: Legal Framework Inadmissibility Determination and Issuance of Expedited Removal Order DHS regulations provide that, if an immigration officer determines that an alien is inadmissible and subject to expedited removal, the officer must prepare a Record of Sworn Statement in Proceedings (Form I-867), which contains the facts of the case and any statements made by the alien.101 The regulations require the immigration officer to record the alien’s statements in response to questions concerning his or her identity, nationality, and inadmissibility.102 Following questioning, the alien must be given an opportunity to read (or have read to him) the information in the Form I-867 and any statements he or she made during the inspection.103 Further, the alien must sign and initial each page of the Form I-867 as well as any corrections made.104 DHS regulations also require the immigration officer to prepare a Notice and Order of Expedited Removal (Form I-860) containing the charges of inadmissibility against the alien, and the alien must have an opportunity to respond to the charges.105 In addition, the regulations instruct that, in cases where an alien is suspected of being present in the United States without being admitted or paroled, the alien must be given an opportunity to show that he or she was admitted or paroled into the United States after inspection at a port of entry.106 As previously noted, an alien placed in expedited removal may be charged with being inadmissible only under the grounds involving a lack of entry documents or attempting to procure admission through fraud or misrepresentation.107 If the immigration officer determines that the alien is inadmissible on other grounds, and DHS intends to pursue additional charges, the alien will be placed in formal removal proceedings under INA Section 240, and the agency may lodge the additional charges during those proceedings.108 An expedited order of removal becomes final after supervisory review.109 At that point, agency regulations permit the immigration officer to serve the alien with Form I-860 and obtain the alien’s signature acknowledging receipt.110 During this process, the alien is not entitled to an 101 8 C.F.R. § 235.3(b)(2)(i). 102 Id. 103 Id. 104 Id. If the alien refuses to sign the Form I-867, the immigration officer must write “Subject refused to sign” on the signature line. See Inspector’s Field Manual § 17.15(b)(1), U.S. CUSTOMS & BORDER PROT., http://www.aila.org/File/ Related/11120959F.pdf. Similarly, if the alien refuses to answer questions, the immigration officer should indicate that “Subject refused to answer” after each pertinent question. Id. The alien’s refusal to sign or answer questions does not prevent expedited removal as long as there is sufficient evidence independent of the alien’s statements to show that he or she is subject to expedited removal. Id. 105 8 C.F.R. § 235.3(b)(2)(i). 106 Id. § 235.3(b)(6). The alien has the burden of showing that he or she was lawfully admitted or paroled into the United States. Id. If the alien meets that burden, the immigration officer will determine whether any grounds of deportability apply under INA Section 237(a), or, if the alien was paroled and that parole has been or should be terminated, whether the alien is inadmissible under INA Section 212(a). Id. If the alien cannot show a lawful admission or parole, he or she will be ordered removed under the expedited removal provisions of INA Section 235(b)(1). Id. 107 Id. § 235.3(b)(3). 108 8 U.S.C. § 1225(b)(2)(A); 8 C.F.R. § 235.3(b)(3), (c). Additionally, if an alien physically present in the United States who is detained pending an expedited removal screening establishes that he or she does not meet the criteria for expedited removal because of continuous presence in the country for the requisite period of time prior to apprehension (e.g., 14 days), the alien will be placed in formal removal proceedings under INA Section 240. 8 C.F.R. § 235.3(b)(1)(ii). 109 8 C.F.R. § 235.3(b)(7). 110 Id. § 235.3(b)(2)(i). Congressional Research Service 15 Expedited Removal of Aliens: Legal Framework administrative hearing or appeal of the expedited removal order.111 Upon the issuance of the expedited removal order, the alien will be removed from the United States.112 Withdrawal of Application for Admission As an alternative to expedited removal, DHS may permit an alien to voluntarily withdraw his or her application for admission if the alien intends, and is able, to depart the United States immediately.113 This option allows the agency “to better manage its resources by removing inadmissible aliens quickly at little or no expense to the Government, and may be considered instead of expedited or regular removal when the circumstances of the inadmissibility may not warrant a formal removal.”114 Under DHS policy, the immigration officer typically considers a number of factors to determine whether an alien may withdraw his or her application for admission, including (1) the seriousness of the immigration violation; (2) any previous findings of inadmissibility against the alien; (3) the intent on the part of the alien to violate the law; (4) the alien’s ability to overcome the ground of inadmissibility; (5) the alien’s age and health; and (6) other humanitarian or public interest considerations.115 An alien does not have a right to withdraw his or her application for admission; instead, it is up to the discretion of the agency whether to permit the alien to withdraw the application and immediately leave the United States in lieu of undergoing removal proceedings.116 Furthermore, implementing regulations provide that an alien who is allowed to withdraw his or her application for admission will remain detained pending departure unless DHS determines that parole is warranted.117 Exceptions to Expedited Removal Generally, an alien subject to expedited removal will be ordered removed without further hearing to contest the immigration officer’s determination.118 But there are exceptions. Notwithstanding these restrictions, further administrative review occurs if an alien in expedited removal indicates an intent to seek asylum or claims that the alien fears persecution if removed.119 Administrative review also occurs if a person placed in expedited removal claims that the person is a U.S. citizen, an LPR, or has been granted refugee or asylee status.120 In these limited circumstances, DHS may not proceed with removal until the alien’s claim receives consideration. 111 8 U.S.C. § 1225(b)(1)(C); 8 C.F.R. § 235.3(b)(2)(ii). 112 8 C.F.R. § 235.3(b)(8). 113 8 U.S.C. § 1225(a)(4); 8 C.F.R. § 235.4. 114 Inspection and Expedited Removal of Aliens, 62 Fed. Reg. 444, 445 (Jan. 3. 1997). 115 United States v. Barajas-Alvarado, 655 F.3d 1077, 1090 (9th Cir. 2011) (citing U.S. DEP’T OF JUSTICE, IMMIGRATION & NATURALIZATION SERV., INSPECTOR’S FIELD MANUAL § 17.2(a) (2001)). 116 8 C.F.R. § 235.4; see also Inspection and Expedited Removal of Aliens, 62 Fed. Reg. at 445 (“The option to permit withdrawal is solely at the discretion of the Government, and is not a right of the alien.”). 117 8 C.F.R. § 235.4. 118 8 U.S.C. § 1225(b)(1)(A)(i), (C); 8 C.F.R. § 235.3(b)(2)(ii). 119 8 U.S.C. § 1225(b)(1)(A)(ii); 8 C.F.R. § 235.3(b)(4). 120 8 U.S.C. § 1225(b)(1)(C); 8 C.F.R. § 235.3(b)(5)(i). Congressional Research Service 16 Expedited Removal of Aliens: Legal Framework Credible Fear Determinations When Congress created the expedited removal process in 1996, it also established special protections for those who claim they qualify for certain forms of relief from removal.121 Specifically, an alien otherwise subject to expedited removal who expresses an intent to apply for asylum, a fear of persecution or torture, or a fear of returning to his or her country is entitled to administrative review of that claim before he or she can be removed.122 In these circumstances, the statute instructs, the immigration officer must refer the alien for an interview with an asylum officer123 to determine whether the alien has a “credible fear” of persecution or torture.124 A credible fear determination is a screening process that evaluates whether an alien could potentially qualify for asylum, withholding of removal, or protection under the Convention Against Torture (CAT).125 The INA defines a “credible fear of persecution” as “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.”126 A “credible fear of torture” is defined by regulation as “a significant possibility that [the alien] is eligible for [protection] under the Convention Against Torture.”127 Under this “low screening standard,”128 the alien has to show only a “substantial and realistic possibility of success on the merits” of an application for asylum, withholding of removal, or CAT protection.129 An alien does not have to show that it is more likely than not that he or she could establish eligibility for these protections to be found to have a credible fear.130 The credible 121 Illegal Immigration Reform and Immigrant Responsibility Act of 1996, P.L. 104-208, § 302, 110 Stat. 3009 (1996) (codified at 8 U.S.C. § 1225(b)(1)(A)(i)); see also Procedures for Expedited Removal, supra note 64, at 1503. 122 8 U.S.C. § 1225(b)(1)(A)(i); 8 C.F.R. § 235.3(b)(4). 123 An asylum officer is an immigration officer who “has had professional training in country conditions, asylum law, and interview techniques comparable to that provided to full-time adjudicators of [asylum] applications.” 8 U.S.C. § 1225(b)(1)(E)(i). The asylum officer is “supervised by an officer” who has the same training and qualifications, and who “has had substantial experience adjudicating asylum applications.” Id. § 1225(b)(1)(E)(ii). 124 8 U.S.C. § 1225(b)(1)(A)(ii); 8 C.F.R. § 235.3(b)(4). In addition, the Form I-867 prepared by the immigration officer must reflect that the alien indicated an intent to apply for asylum or had a fear of persecution. 8 C.F.R. § 235.3(b)(4). 125 An alien is eligible for asylum if he or she has suffered past persecution or has a well-founded fear of future persecution on account of his or her race, religion, nationality, membership in a particular social group, or political opinion. 8 U.S.C. §§ 1101(a)(42), 1158(b)(1)(B)(i). An alien qualifies for withholding of removal if the alien can show it is more likely than not that he or she will be persecuted on account of one of these enumerated grounds. Id. § 1231(b)(3)(A); 8 C.F.R. § 208.16(b)(2). And to qualify for CAT protection, an alien must show that it is more likely than not that he or she will be tortured by a government official or person acting with the consent or acquiescence of that official. 8 C.F.R. §§ 208.16(c)(2), 208.18(a)(1). 126 8 U.S.C. § 1225(b)(1)(B)(v); see also 8 C.F.R. § 208.30(e)(2). 127 8 C.F.R. § 208.30(e)(3). 128 See 142 CONG. REC. S11491–02 (daily ed. Sept. 27, 1996) (statement of Sen. Hatch) (referring to “low screening standard” for credible fear determinations). 129 See Asylum Division Officer Training Course: Credible Fear, U.S. CITIZENSHIP & IMMIGRATION SERVS. (Feb. 28, 2014), https://www.uscis.gov/sites/default/files/.../Asylum_and_Female_Genital_Mutilation.pdf#page=14 (citing Holmes v. Amerex Rent-a-Car, 180 F.3d 294, 297 (D.C. Cir. 1999)). 130 Id. (citing Joseph E. Langlois, Asylum Division, Office of International Affairs, Increase of Quality Assurance Review for Positive Credible Fear Determinations and Release of Updated Asylum Officer Basic Training Course Lesson Plan, Credible Fear of Persecution and Torture Determinations, Memorandum to Asylum Office Directors, et al. (Washington, DC: 17 April 2006)). Congressional Research Service 17 Expedited Removal of Aliens: Legal Framework fear determination is not intended to fully assess the alien’s claims, but only to determine whether those claims are sufficiently viable to warrant more thorough review.131 USCIS may conduct the credible fear interview at a designated port of entry or another location, such as a detention center.132 Before the interview, the alien may consult with another person at no expense to the government; the consulted person may be present at the interview and may be permitted, at the discretion of the asylum officer, to offer a statement.133 The alien also has the option to present evidence at the interview.134 DHS regulations provide that the immigration officer who refers the alien for an interview must prepare Form M-444, Information about Credible Fear Interview in Expedited Removal Cases, that explains the credible fear interview process, the right to consultation before the interview, the right to request a review of the asylum officer’s determination, and the consequences of failing to show a credible fear of persecution or torture.135 The regulations direct the asylum officer to confirm that the alien received Form M444, and that the alien understands the credible fear interview process.136 The asylum officer “will conduct the interview in a nonadversarial manner, separate and apart from the general public,” and the purpose of the interview “shall be to elicit all relevant and useful information bearing on whether the applicant has a credible fear of persecution or torture.”137 If the alien cannot proceed with the interview in English, the asylum officer “shall arrange for the assistance of an interpreter in conducting the interview.”138 By regulation, during the interview, the asylum officer will create “a summary of the material facts as stated by the applicant,” and, at the end of the interview, will review that summary with the alien, who must have an opportunity to correct any errors.139 The asylum officer will then create a written record of the credible fear determination, which will include the factual summary, any additional facts the alien relied upon, and his or her decision as to whether the alien established a credible fear of persecution or torture.140 The asylum officer’s determination will not become final until it is reviewed by a supervisory asylum officer.141 Aliens Who Establish a Credible Fear of Persecution or Torture An alien who has a credible fear of persecution or torture is not automatically granted relief. Rather, the alien is placed in formal removal proceedings governed by INA Section 240 in lieu of expedited removal.142 During these formal removal proceedings, the alien may be represented by 131 Id. at 14-16. 132 8 U.S.C. § 1225(b)(1)(B)(i); Inspection and Expedited Removal of Aliens, 62 Fed. Reg. 444, 447 (Jan. 3, 1997). 133 8 U.S.C. § 1225(b)(1)(B)(iv); 8 C.F.R. §§ 208.30(d)(4), 235.3(b)(4)(i)–(ii). 134 8 C.F.R. § 208.30(d)(4). 135 8 U.S.C. § 1225(b)(1)(B)(iv); 8 C.F.R. § 235.3(b)(4)(i). 136 8 C.F.R. § 208.30(d)(2). 137 Id. § 208.30(d). 138 Id. § 208.30(d)(5). 139 Id. § 208.30(d)(6). 140 Id. § 208.30(e)(1). 141 Id. § 208.30(e)(7); see also Inspection and Expedited Removal of Aliens, 62 Fed. Reg. 444, 447 (Jan. 3, 1997) (“The supervisory asylum officer may direct the asylum officer to interview the applicant further, or to research country conditions or other matters relevant to the decision.”). 142 8 U.S.C. § 1225(b)(1)(B)(ii); 8 C.F.R. §§ 208.30(f), 235.6(a)(1)(ii). An alien who establishes a credible fear will be placed in formal removal proceedings for consideration of an asylum application even if he or she appears to be subject to one of the statutory bars to asylum (e.g., the alien may be safely removed to a different country, has committed a Congressional Research Service 18 Expedited Removal of Aliens: Legal Framework counsel; challenge the basis for his removability; and pursue applications for asylum, withholding of removal, CAT protection, and other forms of relief.143 The alien may also administratively appeal the IJ’s decision and (as specified by statute) seek judicial review of a final order of removal.144 Aliens Who Fail to Establish a Credible Fear of Persecution or Torture An alien’s failure to establish a credible fear to the satisfaction of the asylum officer may also be subject to further review. Under INA Section 235(b)(1) and its implementing regulations, if an asylum officer determines that an alien does not have a credible fear of persecution or torture, the officer will provide the alien with written notice of that decision and inquire whether the alien would like to seek review of the decision before an IJ.145 The alien indicates whether he or she wants to seek review on Form I-869, Record of Negative Credible Fear Finding and Request for Review by an IJ.146 If the alien declines further review, the asylum officer will issue Form I-860, Notice and Order of Expedited Removal, following review by a supervisory asylum officer, and order the alien removed from the United States.147 The statute and regulations instruct, however, that if the alien requests review of the asylum officer’s negative credible fear finding (or refuses to request or decline such review), the asylum officer will issue Form I-863, Notice of Referral to Immigration Judge, for a de novo review of that determination.148 The IJ’s 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 asylum officer’s decision.149 The alien has the opportunity to be heard and questioned by the IJ during this review, which is limited to the issue of credible fear, and may be conducted in person or by telephonic or video conferencing.150 If the IJ concurs with the asylum officer’s negative credible fear finding, “the case shall be returned to [DHS] for removal of the alien,” and the IJ’s decision “is final and may not be appealed.”151 DHS, however, may reconsider a negative credible fear finding that has been concurred upon by an IJ after providing notice to the IJ.152 The alien may submit a request for reconsideration to the regional USCIS asylum office that conducted his initial interview, and if the request is granted, the alien will either have a second interview or receive a positive credible criminal offense or other activity disqualifying him or her from asylum eligibility). See 8 U.S.C. § 1158(a)(2), (b)(2); 8 C.F.R. § 208.30(e)(5). 143 8 U.S.C. §§ 1225(b)(1)(B)(ii), 1229a(b)(4); 8 C.F.R. §§ 208.30(f), 235.6(a)(1)(ii). 144 8 U.S.C. § 1252(a)(1); 8 C.F.R. § 1003.3(a)(1). 145 8 U.S.C. § 1225(b)(1)(B)(iii)(III); 8 C.F.R. § 208.30(g)(1). 146 8 C.F.R. § 208.30(g)(1). 147 8 U.S.C. § 1225(b)(1)(B)(iii)(I); 8 C.F.R. § 208.30(g)(1)(ii). 148 8 U.S.C. § 1225(b)(1)(B)(iii)(III); 8 C.F.R. §§ 208.30(g)(1)(i), 235.6(a)(2)(i), 1003.42(a), 1208.30(g)(2)(i). 149 8 U.S.C. § 1225(b)(1)(B)(iii)(III); 8 C.F.R. § 1003.42(e). 150 8 U.S.C. § 1225(b)(1)(B)(iii)(III); 8 C.F.R. § 1003.42(c); Inspection and Expedited Removal of Aliens, 62 Fed. Reg. 444, 447 (Jan. 3, 1997). 151 8 C.F.R. § 1208.30(g)(2)(iv)(A); see also id. § 1003.42(f) (“No appeal shall lie from a review of an adverse credible fear determination made by an immigration judge.”). 152 Id. § 1208.30(g)(2)(iv)(A); see also Katherine Shattuck, Comment, Preventing Erroneous Expedited Removals: Immigration Judge Review and Requests for Reconsideration of Negative Credible Fear Determinations, 93 WASH. L. REV. 459, 500 (2018) (noting that “this regulation supplies the official basis of a process by which asylum seekers who have received negative credible fear determinations may try to avoid expedited removal and enter [INA] section 240 removal proceedings”). Congressional Research Service 19 Expedited Removal of Aliens: Legal Framework fear determination.153 Based on a 1997 INS memorandum, USCIS will reconsider the alien’s credible fear claim if the alien “has made a reasonable claim that compelling new information concerning the case exists and should be considered.”154 Conversely, if the IJ finds that the alien has a credible fear of persecution or torture, the IJ will vacate the asylum officer’s negative credible fear determination, and the alien will be placed in formal removal proceedings under INA § 240, where the alien will have an opportunity to pursue asylum, withholding of removal, or CAT protection during those proceedings.155 Special Rules for Aliens Arriving from Canada In late 2002, the United States and Canada entered into an agreement that bars certain nonCanadian nationals arriving at a U.S. port of entry from Canada, or who are in transit during removal from Canada, from applying for asylum and related protections in the United States.156 Under the agreement, if such aliens express a fear of persecution or torture, they must be returned to Canada—the country of last presence—to seek protection under Canadian law rather than applying in the United States.157 Under DHS regulations, if an alien arriving in the United States from Canada expresses a fear of persecution or torture, the asylum officer will determine whether the alien is ineligible to apply for asylum in light of the agreement, or whether the alien qualifies for an exception.158 If the asylum officer (after supervisory consultation) determines that the alien does not qualify for an exception, the alien will be ineligible to apply for asylum in the United States, and will be removed to Canada, where the asylum claims may be pursued.159 If the alien qualifies for an exception to the agreement, the asylum officer may determine whether the alien has a credible fear of persecution or torture.160 153 See Shattuck, supra note 152, at 500. If USCIS denies reconsideration, the alien remains subject to expedited removal. Id. 154 See Memorandum from Michael A. Pearson, Exec. Assoc. Comm'r for Field Operations, Immigration & Naturalization Serv., to Reg'l Dirs., Dist. Dirs. & Asylum Office Dirs. Regarding Expedited Removal: Additional Policy Guidance (Dec. 30, 1997), https://www.aila.org/infonet/ins-expedited-removal-additional-policy. 155 8 C.F.R. §§ 235.6(a)(1)(iii), 1003.42(f), 1208.30(g)(2)(iv)(B). 156 Agreement Between the Government of Canada and the Government of the United States for Cooperation in the Examination of Refugee Status Claims from Nationals of Third Countries, Can.-U.S., Dec. 5, 2002, C.T.S. 2004/2 (hereinafter U.S.-Canada Agreement). The U.S.-Canada Agreement also applies to aliens arriving in Canada from the United States who seek asylum protection. See Canada-U.S. Safe Third Country Agreement, CANADA.CA, http://www.cic.gc.ca/english/department/laws-policy/menu-safethird.asp (last modified June 23, 2016). 157 U.S.-Canada Agreement, supra note 156, at art. V cl. a. 158 8 C.F.R. § 208.30(e)(6). An arriving alien from Canada (not including an alien who is being removed from Canada in transit through the United States) will be exempt from the agreement if the alien (1) “[i]s a citizen of Canada, or, not having a country of nationality, is a habitual resident of Canada”; (2) has “a spouse, son, daughter, parent, legal guardian, sibling, grandparent, grandchild, aunt, uncle, niece, or nephew who has been granted asylum, refugee, or other lawful status in the United States” (unless the alien’s relative in the United States only has a nonimmigrant visitor status or visitor status under the Visa Waiver Program); (3) has “a spouse, son, daughter, parent, legal guardian, sibling, grandparent, grandchild, aunt, uncle, niece, or nephew who is at least 18 years old and has an asylum application pending” in the United States; (4) is an unaccompanied minor who “does not have a parent or legal guardian in either Canada or the United States”; (5) “[a]rrived in the United States with a validly issued visa or other valid admission document, other than for transit, issued by the United States,” or, “being required to hold a visa to enter Canada, was not required to obtain a visa to enter the United States”; or (6) USCIS determines as a matter of discretion that the alien should be permitted to pursue asylum and related protections in the United States. Id. § 208.30(e)(6)(iii). 159 Id. § 208.30(e)(6)(i). An IJ has no jurisdiction to review the asylum officer’s determination. Id. § 1003.42(h)(1). 160 Id. § 208.30(e)(6)(ii). Congressional Research Service 20 Expedited Removal of Aliens: Legal Framework Asylum Restrictions for Aliens Arriving at the Southern Border Who Transit Through Third Countries In July 2019, DHS and the Department of Justice (DOJ) jointly published an interim final rule (IFR) that makes an alien who enters or attempts to enter the United States at the southern border ineligible for asylum if he or she failed to apply for protection in at least one third country (outside the alien’s country of citizenship, nationality, or last lawful habitual residence) through which the alien transited en route to the United States.161 The IFR’s asylum bar does not apply if (1) an alien demonstrates that he or she applied for protection from persecution or torture in at least one of the third countries through which the alien transited, and received a final judgment denying protection in that country; (2) an alien demonstrates that he or she falls within the definition of a “victim of a severe form of trafficking in persons” (as that is defined in DHS regulations); or (3) an alien transited through only a country or countries that are not parties to the 1951 Convention Relating to the Status of Refugees, the 1967 Protocol Relating to the Status of Refugees, or CAT.162 The IFR creates a “bifurcated screening process” for aliens subject to expedited removal, and who seek to pursue asylum.163 During the credible fear screening, the asylum officer will determine whether the alien is subject to the IFR’s asylum bar.164 If the alien is found subject to the asylum bar, the asylum officer will issue a negative credible fear determination.165 The asylum officer, however, will then consider whether the alien has a “reasonable fear” of persecution— meaning a reasonable possibility the alien would be persecuted on account of a protected ground—to assess whether the alien may apply for withholding of removal and CAT protection.166 If the alien shows a reasonable fear of persecution, the alien will be placed in formal removal proceedings for consideration of withholding of removal and CAT protection.167 Conversely, if the alien does not show a reasonable fear, the alien may still request an IJ’s review 161 Asylum Eligibility and Procedural Modifications, 84 Fed. Reg. 33,829, 33,835 (July 16, 2019). In support of this rule, DHS and DOJ relied primarily on 8 U.S.C. § 1158(b)(2)(C), which states that “[t]he Attorney General may by regulation establish additional limitations and conditions, consistent with [INA Section 208], under which an alien shall be ineligible for asylum under paragraph (1).” Id. at 33,833. The IFR has been subject to legal challenge, and a federal district court has issued a preliminary injunction barring implementation of the rule on the grounds that the rule is not consistent with the asylum statute. See East Bay Sanctuary Covenant v. Barr, 385 F. Supp. 3d 922 (N.D. Cal. 2019), modified, 934 F.3d 1026 (9th Cir. 2019); East Bay Sanctuary Covenant v. Barr, 391 F. Supp. 3d 974 (9th Cir. 2019). In September 2019, however, the Supreme Court stayed the injunction pending resolution of the government’s appeal before the U.S. Court of Appeals for the Ninth Circuit, and pending resolution of the government’s petition for further review in the Supreme Court (and if the Court grants the petition, until the Court issues a final judgment). Barr v. East Bay Sanctuary Covenant, 2019 WL 4292781 (U.S. Sept. 11, 2019) (No. 19A230). Therefore, the IFR is currently in effect. 162 84 Fed. Reg. at 33,833. 163 Id. at 33,837. 164 Id. 165 Id. In their joint rule, DHS and DOJ reason that, if an alien is subject to the third country transit bar, and thus ineligible for asylum, the alien cannot show a significant possibility of eligibility for asylum for purposes of establishing a credible fear. Id. However, the IFR provides, if the alien establishes a “significant possibility” that he or she is not subject to the asylum bar, and the alien otherwise demonstrates a significant possibility that he or she could establish eligibility for asylum, the alien will be found to have shown a credible fear of persecution. Id. 166 Id. at 33,837-38; see also supra note 125 (describing protected grounds required for asylum and withholding). 167 84 Fed. Reg. at 33,838. During the formal removal proceedings, the alien may also obtain review of whether he or she was “correctly identified” as being subject to the asylum bar. Id. If the IJ determines that the alien is not subject to the bar, the alien may additionally apply for asylum during those proceedings. Id. Congressional Research Service 21 Expedited Removal of Aliens: Legal Framework of whether the alien is subject to the asylum bar, and whether the alien established a reasonable fear.168 Aliens Who Claim to Be U.S. Citizens, Lawful Permanent Residents, Admitted Refugees, or Persons Who Have Been Granted Asylum When Congress established the expedited removal process, it created an exception to the otherwise applicable expedited removal procedures for any alien who claims to be an LPR, an admitted refugee, a person who has been granted asylum (asylee), or a U.S. citizen.169 Congress directed the implementing agency to “provide by regulation for prompt review” of an expedited removal order in these circumstances, which involve persons who claim to have some legal foothold into the United States.170 Pursuant to the implementing regulations, an immigration officer must attempt to verify a claim of U.S. citizenship, LPR status, refugee status, or asylee status before the officer can issue an expedited order of removal.171 The verification process includes “a check of all available [DHS] data systems and any other means available to the officer.”172 Unverified Claims DHS regulations provide that, if the immigration officer cannot verify the alien’s claim that he or she is an LPR, refugee, asylee, or U.S. citizen, the alien will be advised of the penalties of perjury, and placed under oath or permitted to make an unsworn declaration regarding his claim of lawful status.173 The immigration officer will obtain a written statement from the alien in his own language and handwriting “stating that he or she declares, certifies, verifies, or states that the claim is true and correct.”174 Following the alien’s declaration, the immigration officer will issue an expedited order of removal and refer the alien to an IJ for further review.175 Under the regulations, if the IJ determines that the alien has not been admitted as an LPR or refugee, granted asylum status, or is not a U.S. citizen, the IJ will affirm the expedited order of removal, and DHS typically proceeds with the alien’s removal.176 There is no appeal of the IJ’s decision.177 However, if the IJ determines that the individual has been admitted as an LPR or a refugee, has been granted asylum, or is a U.S. citizen, the IJ will vacate the expedited order of 168 Id. If the IJ concludes that either the alien is not subject to the asylum bar or that the alien has shown a reasonable fear, the alien will be placed in formal removal proceedings. Id. But if the IJ concludes that the alien is subject to the asylum bar, or that the alien did not show a reasonable fear, the alien will remain subject to expedited removal. Id. For additional information about the IFR and the legal challenge to the rule, see CRS Legal Sidebar LSB10337, Asylum Bar for Migrants Who Reach the Southern Border through Third Countries: Issues and Ongoing Litigation, by Ben Harrington. 169 Illegal Immigration Reform and Immigrant Responsibility Act of 1996, P.L. 104-208, § 302, 110 Stat. 3009-546, 579–84 (1996) (codified at 8 U.S.C. § 1225(b)(1)(C)); see also Landon v. Plasencia, 459 U.S. 21, 33 (1982); Rosenberg v. Fleuti, 374 U.S. 449, 460 (1963); Kwong Hai Chew v. Colding, 344 U.S. 590, 600–01 (1953) (holding that returning resident aliens are entitled to due process before being excluded). 170 8 U.S.C. § 1225(b)(1)(C). 171 8 C.F.R. § 235.3(b)(5)(i); Inspection and Expedited Removal of Aliens, 62 Fed. Reg. 444, 445 (Jan. 3, 1997). 172 8 C.F.R. § 235.3(b)(5)(i). 173 Id.; see 28 U.S.C. § 1746. 174 8 C.F.R. § 235.3(b)(5)(i). 175 Id. §§ 235.3(b)(5)(i), 235.3(b)(5)(iv), 235.6(a)(2)(ii). 176 8 C.F.R. § 235.3(b)(5)(iv). 177 Id. Congressional Research Service 22 Expedited Removal of Aliens: Legal Framework removal and terminate the proceedings.178 At this point, DHS may admit the individual or, if appropriate, commence formal removal proceedings against him under INA Section 240 “to contest his or her current retention of such status.”179 The agency, however, may not initiate removal proceedings against a U.S. citizen.180 Verified Claims If, upon examination, an immigration officer verifies that an alien is a U.S. citizen, the alien may not be ordered removed and must be admitted.181 If the immigration officer verifies that an alien is an LPR, and that the alien continues to hold that status, the immigration officer cannot issue an expedited order of removal against the alien.182 Instead, the regulations require the immigration officer to determine whether the alien is considered to be applying for admission into the United States.183 Under the INA, an LPR will not be regarded as an applicant for admission unless he       has abandoned or relinquished his LPR status; has been absent from the United States for a continuous period of more than 180 days; has engaged in illegal activity after departing the United States; has departed the United States while removal or extradition proceedings against him were pending; has committed a criminal offense described in INA Section 212(a)(2), such as a crime involving moral turpitude, a controlled substance offense, or a drug trafficking crime, unless the alien was previously granted a discretionary waiver or cancellation of removal; or is attempting to enter the United States at a time or place other than as designated by immigration officers, or has not been admitted to the United States after inspection and authorization by an immigration officer.184 If the immigration officer concludes that the LPR is an applicant for admission, and that the LPR is otherwise admissible except that he or she lacks required documentation to enter the country, the officer may waive the documentary requirements if the alien shows good cause for failing to present documentation.185 Alternatively, the immigration officer may defer the alien’s inspection “to an onward office for presentation of the required documents.”186 On the other hand, if the immigration officer determines that an LPR seeking admission is inadmissible under INA Section 212(a) (e.g., because of certain criminal activity), the officer may initiate formal removal proceedings against the alien under INA Section 240.187 178 Id. 179 Id.; see Inspection and Expedited Removal of Aliens, 62 Fed. Reg. 444, 446 (Jan. 3, 1997); Inspection and Expedited Removal of Aliens, 62 Fed. Reg. 10,312, 10,314 (Mar. 6, 1997). 180 8 C.F.R. § 235.3(b)(5)(iv). 181 Id. 182 Id. § 235.3(b)(5)(ii). 183 Id. 184 8 U.S.C. § 1101(a)(13)(C). 185 Id. § 1181(b); 8 C.F.R. §§ 211.1(b)(3), 235.3(b)(5)(ii). 186 8 C.F.R. § 235.3(b)(5)(ii). 187 Id. If a returning LPR cannot be regarded as seeking admission into the United States (based on the criteria set forth Congressional Research Service 23 Expedited Removal of Aliens: Legal Framework Under DHS regulations, if the immigration officer determines, through the verification process, that an alien has previously been admitted as a refugee or granted asylum in the United States, and that the alien continues to hold such status, the officer cannot issue an expedited order of removal against the alien.188 Instead, if the alien is not in possession of a valid, unexpired refugee travel document,189 the immigration officer may accept an application for a refugee travel document from the alien provided that he or she (1) did not intend to abandon his or her refugee or asylum status when departing the United States; (2) did not engage in any activities outside the United States that would conflict with the alien’s refugee or asylum status (e.g., the alien engaged in persecution); and (3) has been outside the United States for less than one year.190 If the application is approved, the immigration officer will readmit the refugee or asylee into the United States.191 However, if the alien is not eligible to apply for a refugee travel document, the immigration officer may initiate regular removal proceedings against the alien under INA Section 240.192 Unaccompanied Children Under federal statute, unaccompanied alien children are not subject to expedited removal.193 Instead, the governing statute provides that any unaccompanied alien child (UAC)194 who is determined by immigration authorities to be subject to removal must be placed in formal removal proceedings under INA Section 240, regardless of whether the alien is found in the interior of the United States or at the border.195 The governing statute also instructs that, during the formal removal proceedings, the UAC is eligible for voluntary departure in lieu of removal at no cost196 and will be provided access to pro bono counsel.197 in INA Section 101(a)(13)(C)), he or she is not an arriving alien for immigration purposes, and DHS must allow the alien to return to the United States. Matter of Pena, 26 I. & N. Dec. 613, 616 (BIA 2015). If DHS determines that the alien is subject to removal for other reasons (e.g., an alien who had obtained LPR status through fraud or misrepresentation) and initiates formal removal proceedings, the LPR can only be charged with being deportable under INA Section 237 rather than being charged with inadmissibility under INA Section 212. Id. at 618–619; see 8 U.S.C. §§ 1182(a), 1227(a) (grounds of inadmissibility and deportability). 188 8 C.F.R. § 235.3(b)(5)(iii). 189 A person who holds refugee or asylum status generally must have a refugee travel document to return to the United States after temporary travel abroad. Id. § 223.1(b). 190 Id. §§ 223.2(b)(2)(ii), 235.3(b)(5)(iii). 191 Id. §§ 223.3(d)(2)(i), 235.3(b)(5)(iii). 192 Id. § 235.3(b)(5)(iii). 193 8 U.S.C. § 1232(a)(5)(D). This statutory provision was created by Section 235 of the William Wilberforce Trafficking Victims Protection Reauthorization Act of 2008, P.L. 110-457, § 235, 122 Stat. 5044, 5077 (2008). 194 A UAC is defined as a child who has no lawful immigration status in the United States; has not reached the age of 18; and either has no parent or legal guardian in the United States, or has no parent or legal guardian in the United States who is available to provide care and physical custody. 6 U.S.C. § 279(g). 195 8 U.S.C. § 1232(a)(5)(D). The UAC will be placed in the custody of the Department of Health and Human Services’ (HHS’s) Office of Refugee Resettlement (ORR) pending the formal removal proceedings, and typically must be transferred to ORR within 72 hours after DHS determines that the child is a UAC. Id. § 1232(a)(4), (b)(3). Following transfer to ORR, the agency generally must place the UAC “in the least restrictive setting that is in the best interest of the child,” and may place the child with a sponsoring individual or entity who “is capable of providing for the child’s physical and mental well-being.” Id. § 1232(c)(2)(A), (3)(A). 196 Generally, under INA Section 240B, an IJ may permit an alien to voluntarily depart the United States at the alien’s expense in lieu of being removed if the alien meets certain statutory requirements (including the posting of bond if at the conclusion of removal proceedings). See 8 U.S.C. § 1229c(a), (b). 197 Id. § 1232(a)(5)(D), (c)(5). Congressional Research Service 24 Expedited Removal of Aliens: Legal Framework In limited circumstances, DHS may permit a UAC to voluntarily return to his country in lieu of removal proceedings,198 but only if the UAC is “a national or habitual resident of a country that is contiguous with the United States” (i.e., Mexico and Canada), and the child (1) has not been a victim of human trafficking (or is not at risk of human trafficking upon return to his native country or country of last habitual residence); (2) does not have a credible fear of persecution in his native country or country of last habitual residence; and (3) is capable of independently withdrawing his application for admission to the United States.199 Detention and Parole of Aliens Subject to Expedited Removal The INA generally authorizes (but does not require) immigration authorities to detain aliens pending their removal proceedings.200 Aliens placed in expedited removal, however, are generally subject to detention pending a determination as to whether they should be removed from the United States.201 Aliens in the expedited removal process who express a fear of persecution or an intent to apply for asylum are likewise generally subject to detention while the viability of those claims is considered.202 But depending on a number of circumstances, including whether such aliens are apprehended at a designated port of entry or crossing the border surreptitiously, such aliens may potentially be released from detention on bond, on their own recognizance, under an order of supervision, or via the exercise of DHS’s parole authority.203 Moreover, the extended detention of alien minors and their parents is limited by a binding settlement agreement from a case in the U.S. District Court for the Central District of California now called Flores v. Barr.204 198 “Voluntary return” following a withdrawal of an application of admission is a distinct alternative to “voluntary departure” during formal removal proceeding authorized under INA Section 240B. An alien granted voluntary departure typically must pay the costs associated with departing from the United States as well as a voluntary departure bond, and is subject to a fine and certain other immigration-related penalties if he or she fails to depart. 8 U.S.C. § 1229c(a)(1), (a)(3), (b)(1), (b)(3), (d)(1). 199 8 U.S.C. § 1232(a)(2)(A), (a)(2)(B), (a)(5)(D). The federal laws concerning UACs are generally consistent with DHS’s (and before that, the INS’s) previously policy not to implement expedited removal with respect to unaccompanied minors, except in very limited circumstances. See e.g., U.S. DEP’T OF JUSTICE, IMMIGRATION & NATURALIZATION SERV., INSPECTOR’S FIELD MANUAL § 17.15(a)(1) (2001). 200 See 8 U.S.C. § 1226(a) (providing that “an alien may be arrested and detained pending a decision on whether the alien is to be removed from the United States,” and that DHS may release the alien on bond of at least $1,500 or grant conditional parole). During the removal proceedings, the alien may request review of DHS’s custody determination at a bond hearing before an IJ, and may appeal the IJ’s custody decision to the BIA. 8 C.F.R. §§ 236.1(d)(1), 236.1(d)(3)(i), 1003.19(a). 201 See 8 U.S.C. § 1225(b)(1)(B)(iii)(IV); 8 C.F.R. § 235.3(b)(2)(iii). 202 See 8 U.S.C. § 1225(b)(1)(B)(ii), (iii)(IV); 8 C.F.R. § 235.3(b)(4)(ii). 203 See Detention and Removal of Illegal Aliens U.S. Immigration & Customs Enforcement, DEP’T OF HOMELAND SEC. OFFICE OF INSPECTOR GEN. (Apr. 14, 2006), https://www.oig.dhs.gov/assets/Mgmt/OIG_06-33_Apr06.pdf#page=34; Parole of Arriving Aliens Found to Have a Credible Fear of Persecution or Torture ¶ 8.3(2)(b), U.S. IMMIGRATION & CUSTOMS ENFORCEMENT (Dec. 8, 2009), https://www.ice.gov/doclib/dro/pdf/11002.1-hdparole_of_arriving_aliens_found_credible_fear.pdf. 204 934 F.3d 910, 911–13 (9th Cir. 2019). See generally CRS Report R45297, The “Flores Settlement” and Alien Families Apprehended at the U.S. Border: Frequently Asked Questions, by Ben Harrington. Congressional Research Service 25 Expedited Removal of Aliens: Legal Framework Detention of Aliens in Expedited Removal Proceedings INA Section 235(b)(1) and its implementing regulations provide that an alien “shall be detained” pending a determination as to whether the alien should be subject to expedited removal.205 Historically, executive branch agencies have construed this detention authority as mandatory.206 The mandatory detention requirement applies not only during the initial expedited removal screening, but also during any determination as to whether the alien has a credible fear of persecution or torture and any administrative review of an alien’s claim that he or she is a U.S. citizen, LPR, asylee, or refugee.207 DHS, however, has the discretion to parole an alien on a caseby-case basis “for urgent humanitarian reasons or significant public benefit” during these expedited removal proceedings.208 Based on this statutory authority, the agency has implemented regulations that allow parole of an alien subject to expedited removal, but only if parole “is required to meet a medical emergency or is necessary for a legitimate law enforcement objective.”209 The agency’s discretionary decision to grant parole is not subject to administrative or judicial review.210 Detention of Aliens Who Establish a Credible Fear of Persecution or Torture INA Section 235(b)(1) provides that aliens subject to expedited removal who establish a credible fear of persecution or torture “shall be detained” pending consideration of their applications for asylum and related protections in formal removal proceedings.211 Under DHS regulations, the agency may parole such aliens on a case-by-case basis for “urgent humanitarian reasons” or “significant public benefit,” and typically will interview the alien to determine his eligibility for parole within seven days following the credible fear finding.212 The regulations list the following five categories of aliens who would generally meet the criteria for parole, provided that they do not present a security or flight risk: 1. aliens who have serious medical conditions; 2. women who have been medically certified as pregnant; 3. alien juveniles (defined as aliens under the age of 18) who can be released to a relative or nonrelative sponsor; 205 8 U.S.C. § 1225(b)(1)(B)(iii)(IV); 8 C.F.R. § 235.3(b)(2)(iii), (4)(ii), (5)(i). 206 See e.g., Matter of X-K-, 23 I. & N. Dec. at 734 (noting that the INA “provides for the mandatory detention of aliens” who are being processed for expedited removal); Inspection and Expedited Removal of Aliens, 62 Fed. Reg. 10,312, 10,315, 10,323 (Mar. 6, 1997) (observing that detention is required for aliens subject to expedited removal). 207 8 U.S.C. § 1225(b)(1)(B)(iii)(IV) (“Any alien subject to the procedures under this clause shall be detained pending a final determination of credible fear of persecution and, if found not to have such a fear, until removed”); 8 C.F.R. § 235.3(b)(2)(iii) (“An alien whose inadmissibility is being considered under this section or who has been ordered removed pursuant to this section shall be detained pending determination and removal”), (4)(ii) (“Pending the credible fear determination by an asylum officer and any review of that determination by an [IJ], the alien shall be detained.”), (5)(i) (providing that an alien whose claim of being a U.S. citizen, LPR, asylee, or refugee cannot be verified “shall be detained pending review of the expedited removal order under this section”). 208 8 U.S.C. § 1182(d)(5)(A); 8 C.F.R. § 235.3(b)(2)(iii), (4)(ii), (5)(i). Parole is not considered a lawful admission into the United States or a determination of admissibility, and the decision whether to grant parole is entirely subject to DHS’s discretion and may be revoked at any time. 8 U.S.C. §§ 1101(a)(13)(B), 1182(d)(5)(A). 209 8 C.F.R. § 235.3(b)(2)(iii), (4)(ii), (5)(i). 210 8 U.S.C. § 1252(a)(2)(B)(ii); Rodriguez v. Robbins, 804 F.3d 1060, 1081 (9th Cir. 2015), rev’d sub nom. Jennings v. Rodriguez, 138 S. Ct. 830 (2018). 211 8 U.S.C. § 1225(b)(1)(B)(ii). 212 8 C.F.R. §§ 208.30(f), 212.5(b); Parole of Arriving Aliens, supra note 203, at ¶ 4.2. Congressional Research Service 26 Expedited Removal of Aliens: Legal Framework 4. aliens who will be witnesses in proceedings conducted by judicial, administrative, or legislative bodies in the United States; and 5. aliens “whose continued detention is not in the public interest.”213 Previously, the BIA had construed INA Section 235(b)(1)’s mandatory detention requirement for aliens who establish a credible fear of persecution or torture pending consideration of their applications for asylum and related protections (unless DHS grants parole) to apply only to arriving aliens.214 The BIA had decided that, during the formal removal proceedings, such aliens were not eligible for bond hearings before an IJ under INA Section 236(a) to determine whether they should be released from custody, and could only be considered for parole by DHS.215 On the other hand, aliens apprehended between ports of entry (e.g., when suspected of surreptitiously crossing the border) who were first screened for expedited removal and then placed in formal removal proceedings after a positive credible fear determination were considered eligible for release on bond.216 The BIA had reasoned that these aliens were subject to INA Section 236(a)’s discretionary detention authority, and, unlike arriving aliens, did not fall within the listed classes of aliens that are excluded from an IJ’s custody jurisdiction during formal removal proceedings.217 But in 2019, Attorney General William Barr overturned the BIA’s decision, ruling that INA Section 235(b)(1)’s mandatory detention scheme applies to all aliens placed in formal removal proceedings after a positive credible fear determination, regardless of their manner of entry.218 The Attorney General reasoned that INA Section 235(b)(1) plainly mandates that aliens first screened for expedited removal who establish a credible fear “shall be detained” until completion of their formal removal proceedings, and that the INA only authorizes their release on parole.219 213 8 C.F.R. §§ 212.5(b), 236.3(a). An alien’s continued detention is not considered in the public interest if the alien establishes his or her identity to an immigration officer, and shows that he or she presents neither a flight risk nor a danger to the community. See Parole of Arriving Aliens, supra note 203, at ¶¶ 4.3, 8.3(2); see also 8 C.F.R. § 212.5(d) (providing that, in deciding whether to grant parole, agency officials may consider “relevant factors,” including whether there are reasonable assurances that the alien will appear at all hearings and/or depart the United States when required to do so; the alien’s community ties such as close relatives with known addresses; and any agreement to reasonable conditions such as periodic reporting requirements). If parole is denied, agency guidelines instruct that the immigration officer should advise the alien that he or she may request reconsideration based on changed circumstances or additional evidence relating to the alien’s identity, security risk, or risk of absconding. Parole of Arriving Aliens, supra note 203, at ¶ 8.2. 214 See Matter of X-K-, 23 I. & N. Dec. 731, 735 (BIA 2005) (clarifying that INA Section 235(b)(1)’s mandatory detention requirement for aliens placed in formal removal proceedings “applies only to arriving aliens”), overruled by Matter of M-S-, 27 I. & N. Dec. 509 (A.G. 2019). 215 Id. at 735 (stating that “arriving aliens in removal proceedings are specifically excluded from the custody jurisdiction of Immigration Judges” under INA Section 236 and that such aliens “may only be considered for parole”). See also 8 C.F.R. §§ 236.1(d)(1), 1003.19(a) (permitting an alien to seek an IJ’s review of an initial custody determination by DHS); id. § 1003.19(h)(2)(i)(B) (providing that an IJ may not review DHS’s custody decisions with respect to certain categories of aliens, including “[a]rriving aliens in removal proceedings”). 216 Matter of X-K-, 23 I. & N. Dec. at 736. (overruled by Matter of M-S-, 27 I. & N. Dec. 509 (A.G. 2019)). 217 Id. at 735–36. See also R.I.L-R v. Johnson, 80 F. Supp. 3d 164, 171–72 (D.D.C. 2015) (stating that INA § 236(a) governs the detention of aliens initially screened for expedited removal following their unlawful entry into the United States, and who are placed in “standard” removal proceedings after a credible fear determination). 218 Matter of M-S-, 27 I. & N. Dec. 509 (A.G. 2019). The Attorney General exercised his appellate authority to review the BIA’s decision under 8 C.F.R. § 1003.1(h)(1)(i), which authorizes the Attorney General to direct the BIA to refer cases to him for review. Matter of M-S-, 27 I. & N. Dec. 476 (A.G. 2018). 219 Matter of M-S-, 27 I. & N. Dec. at 515–17. The Attorney General recognized that INA § 236(a) generally permits the release of aliens on bond, but concluded that it “provides an independent ground for detention that does not limit Congressional Research Service 27 Expedited Removal of Aliens: Legal Framework In Padilla v. Immigration & Customs Enforcement, the U.S. District Court for the Western District of Washington ruled that INA Section 235(b)(1)’s mandatory detention scheme is unconstitutional, and that aliens apprehended within the United States who are first screened for expedited removal and placed in formal removal proceedings following a positive credible fear determination are “constitutionally entitled to a bond hearing before a neutral decisionmaker” pending consideration of their asylum claims.220 The court reasoned that aliens who have entered the United States “are entitled to due process protections,” including the “freedom from unnecessary detention.”221 The court thus issued an injunction requiring the government to (1) provide bond hearings within seven days of a bond hearing request by detained aliens who entered the United States without inspection, were first screened for expedited removal, and were placed in formal removal proceedings after a positive credible fear determination; (2) release any aliens within that class whose detention time exceeds that seven-day limit; and (3) require DHS to prove at the bond hearing that continued detention is warranted.222 Thus, as things currently stand, arriving aliens who are first screened for expedited removal, and placed in formal removal proceedings after a positive credible fear determination, generally must remain detained pending those proceedings unless DHS grants parole; while aliens apprehended within the United States who are first screened for expedited removal and transferred to formal removal proceedings after a positive credible fear determination are eligible for release on bond. Detention of Other Applicants for Admission INA Section 235(b)(2) covers applicants for admission who are not subject to expedited removal.223 This provision would thus cover unadmitted aliens who are inadmissible on grounds other than those specified in INA Section 212(a)(6)(C) and (a)(7), such as for engaging in specified criminal conduct, as [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/crs%3AR45314. Public record. Not legal advice.