Immigration Policy on Expedited Removal of Aliens

Congressional research reportJan 30, 2009

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Prepared for Members and Committees of Congress

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Expedited removal, an immigration enforcement strategy originally conceived to operate at the

borders and ports of entry, is being expanded, raising a set of policy, resource, and logistical

questions. Expedited removal is a provision under which an alien who lacks proper

documentation or has committed fraud or willful misrepresentation of facts may be removed from

the United States without any further hearings or review, unless the alien indicates a fear of

persecution. Congress added expedited removal to the Immigration and Nationality Act (INA) in

1996, making it mandatory for arriving aliens, and giving the Attorney General the option of

applying it to aliens in the interior of the country who have not been admitted or paroled into the

United States and who cannot affirmatively show that they have been physically present in the

United States continuously for two years. Until recently, expedited removal was only applied to

aliens at ports of entry.

Proponents of expanding expedited removal point to the lengthy procedural delays and costs of

the alien removal process. They cite statistics that indicate that the government is much more

successful at removing detained aliens (aliens in expedited removal must be detained) than those

not detained. They argue that aliens who entered the country illegally should not be afforded the

due process and appeals that those who entered legally are given under the law. They point to the

provision added to INA in 1996 that clarified that aliens who are in the United States without

inspection are deemed to be “arriving” (i.e., not considered to have entered the United States and

acquired the legal protections it entails). Advocates for requiring mandatory expedited removal

maintain that it is an essential policy tool to handle the estimated 12 million unauthorized aliens

in the United States.

Opponents of the expansion of mandatory expedited removal to the interior argue that it poses

significant logistical problems, and cite increased costs caused by mandatory detention and the

travel costs of repatriation. They also express concern that apprehended aliens will not be given

ample opportunity to produce evidence that they are not subject to expedited removal, and argue

that expedited removal limits an alien’s access to relief from deportation. Some predict diplomatic

problems if the United States increases repatriations of aliens who have not been afforded a

judicial hearing. The Bush Administration is taking a an incremental approach to expanding

expedited removal. From April 1997 to November 2002, expedited removal only applied to

arriving aliens at ports of entry. In November 2002, it was expanded to aliens arriving by sea who

are not admitted or paroled. Subsequently, in August 2004, expedited removal was expanded to

aliens who are present without being admitted or paroled, are encountered by an immigration

officer within 100 air miles of the U.S. southwest land border, and can not establish to the

satisfaction of the immigration officer that they have been physically present in the United States

continuously for the 14-day period immediately preceding the date of encounter. In January 2006,

expedited removal was reportedly expanded along all U.S. borders. This report will be updated.

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Background ..................................................................................................................................... 1

Overview ................................................................................................................................... 1

Legislative History .................................................................................................................... 2

Current Policy.................................................................................................................................. 3

Basics of Expedited Removal ................................................................................................... 3

Expedited Removal Procedure at the Ports of Entry........................................................... 5

Arrivals at Sea........................................................................................................................... 5

Expansion Along the Border ..................................................................................................... 5

Issues ............................................................................................................................................... 7

Due Process............................................................................................................................... 7

Protections for Asylum Seekers ................................................................................................ 7

Mandatory Detention of Asylum Seekers ........................................................................... 8

Coordination Across Agencies .................................................................................................. 9

Expansion of Expedited Removal ............................................................................................. 9

Protection of Rights .......................................................................................................... 10

Cost and Resources ............................................................................................................11

Removal Proceeding Delays ............................................................................................. 12

Logistics............................................................................................................................ 12

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Appendix A. Overview of §240 Formal Removal Procedures...................................................... 14

Appendix B. Legislation in the 110th Congress ............................................................................. 16

Author Contact Information .......................................................................................................... 16

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Expedited removal, an immigration enforcement strategy originally conceived to operate at the

borders and ports of entry, recently has been expanded in certain border regions. Whether the

policy should be made mandatory and extended into the interior of the country is emerging as an

issue. Expanding expedited removal raises a set of policy, resource, and logistical questions.

Expedited removal is a provision in the Immigration and Nationality Act (INA),1 under which an

alien who lacks proper documentation or has committed fraud or willful misrepresentation of

facts to gain admission into the United States is inadmissable2 and may be removed from the

United States without any further hearings or review,3 unless the alien indicates either an intention

to apply for asylum4 or a fear of persecution. Aliens who receive negative “credible fear”

determinations may request that an immigration judge review the case.5 Under expedited

removal, both administrative and judicial review are limited generally to cases in which the alien

claims to be a U.S. citizen or to have been previously admitted as a legal permanent resident, a

refugee, or an asylee.6

Aliens subject to expedited removal must be detained until they are removed and may only be

released due to medical emergency or if necessary for law enforcement purposes. In addition,

aliens who have been expeditiously removed are barred from returning to the United States for

five years.7 Although under law, the Attorney General8 may apply expedited removal to any alien

INA §235(b)(1)(A)(i); 8 U.S.C. §1225(b)(1)(A)(i).

All aliens must satisfy to immigration inspectors upon entry to the United States that they are not ineligible for

admission under the so-called “grounds for inadmissibility” of INA §212. These categories are: health-related grounds;

criminal history; national security and terrorist concerns; public charge; seeking to work without proper labor

certification; illegal entrants and immigration law violations; lacking proper documents; ineligible for citizenship; and,

aliens previously removed.

Aliens from Western Hemisphere countries with which the United States does not have full diplomatic relations (e.g.,

Cuba) are excluded from expedited removal. In addition, a former Immigration and Naturalization Service (INS) policy

memorandum (August 1997), stated that unaccompanied minors should be placed in expedited removal in limited

circumstances.

The INA provides immigration protections to aliens who have a well-founded fear of persecution, most notably in the

form of asylum status. Aliens seeking asylum must demonstrate a well-founded fear that if returned home, they will be

persecuted based upon one of five characteristics: race, religion, nationality, membership in a particular social group, or

political opinion.

Aliens who are in expedited removal and claim asylum are given a “credible fear” hearing to determine if there is

support for their asylum claim. The INA states that “the term credible fear of persecution means that there is 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 ... ” (INA

§235(b)(1)(B)(v); 8 U.S.C. §1225). Those who pass the credible fear hearing are placed into formal removal

proceedings under INA §240. For a discussion of removal under §240 see Appendix A. For more on credible fear, see

CRS Report RL32621, U.S. Immigration Policy on Asylum Seekers, by (name redacted).

The INA states that judicial review of an expedited removal order is available in habeas corpus proceedings, but the

review is limited to whether the petitioner is an alien, was ordered expeditiously removed, or was previously granted

legal permanent resident (LPR), refugee or asylee status.

INA §212(a)(9)(i).

The Homeland Security Act of 2002 (P.L. 107-296) abolished the INS and transferred most of its functions to various

bureaus in the new Department of Homeland Security (DHS) effective March 1, 2003. Expedited removal policy is

(continued...)

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who has not been admitted or paroled into the United States and cannot show that they have been

continuously present for two years,9 expedited removal has been applied in a more limited

manner.

Under regulation, expedited removal only applied to arriving aliens at ports of entry from April

1997 to November 2002.10 In November 2002, the Bush Administration extended expedited

removal to aliens arriving by sea who are not admitted or paroled.11 Subsequently, in August

2004, expedited removal was expanded to aliens who are present without being admitted or

paroled, are encountered by an immigration officer within 100 air miles of the U.S. international

southwest land border, and have not established to the satisfaction of an immigration officer that

they have been physically present in the United States continuously for the 14-day period

immediately preceding the date of encounter.

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Failure to have valid documents has long been a ground for exclusion from the United States.12

With regard to fraudulent entry in general, the INA provides that “any alien who, by fraud or

willfully misrepresenting a material fact, seeks to procure (or has sought to procure or has

procured) a visa, other documentation, or admission into the United States or other benefit

provided under this Act is inadmissible.”13

The policy option known as expedited removal was proposed in the early 1980s under the name

“summary exclusion.” The proposal was triggered largely by the mass migration of

approximately 125,000 Cubans and 30,000 Haitians to South Florida in 1980. While this dramatic

influx of asylum seekers, commonly known as the Mariel boatlift, lasted only a few months, it

cast a long shadow over U.S. immigration policy. At that time, aliens arriving at a port of entry to

the United States without proper immigration documents were eligible for a hearing before an

Executive Office for Immigration Review (EOIR) immigration judge to determine whether the

aliens were admissible.14 If the alien received an unfavorable decision from the immigration

judge, he or she also could seek administrative and judicial review of the case. The goal of

“summary exclusion” was to stymie unauthorized migration by restricting the hearing, review,

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being administered by the Secretary of Homeland Security.

Under regulation, any absence from the United States breaks the period of continuous presence (8 C.F.R.

325.3(b)(1)(ii)).

Department of Justice, “Inspection and Expedited Removal of Aliens; Detention and Removal of Aliens; Conduct of

Removal Proceedings; Asylum Procedures; Final Rule,” 62 Federal Register 10311, March 6, 1997.

“Parole” is a term in immigration law that means the alien has been granted temporary permission to enter and be

present in the United States. Parole does not constitute formal admission to the United States and parolees are required

to leave when the parole expires, or if eligible, to be admitted in a lawful status. Department of Justice, “Notice

Designating Aliens Subject to Expedited Removal Under §235(b)(1)(A)(iii) of the Immigration and Nationality Act;

Notice,” 67 Federal Register 68923, November 13, 2002.

INA §212(a)(7).

INA §212(a)(6)(C).

In addition to an inadmissibility hearing, aliens lacking proper documents could request asylum in the United States

at that time.

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and appeal process for aliens arriving without proper documents at ports of entry. It was included

and then deleted from legislation that became the Immigration Reform and Control Act of 1986.15

In 1993, during the 103rd Congress, the Clinton Administration proposed “summary exclusion” in

S. 1333/H.R. 2836, the “Expedited Exclusion and Alien Smuggling Enhanced Penalties Act of

1993,” to address the problem of aliens arriving at ports of entry without proper documents. The

goal of these provisions was to target the perceived abuses of the asylum process by restricting

the hearing, review, and appeal process for aliens at the port of entry. The bill would have

instituted a “summary exclusion” procedure for such aliens who did not articulate a plausible

asylum claim. The House took no action on H.R. 2836, but approved H.R. 2602, a similar bill that

would have created a summary exclusion process.

During the 104th Congress, the House-passed version of H.R. 2202 “The Immigration in the

National Interest Act of 1995” (which subsequently became the Illegal Immigration Reform and

Immigrant Responsibility Act of 1996) had language providing for the “expedited removal of

arriving aliens” and deemed aliens who were in the United State without inspection to be

arriving.16 H.R. 2202 also restructured the laws on deportation and exclusion into a single

“removal” process. During the debate on its related bill, S. 1664, however, the Senate eliminated

the bill’s “expedited removal” provisions, replacing them with a more limited special exclusion

process to be used only in “extraordinary migration situations.”17 The Illegal Immigration Reform

and Immigrant Responsibility Act of 1996 (IIRIRA; P.L. 104-208, Division C) established the

expedited removal policy that is in place today.18

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An immigration officer can summarily exclude an alien arriving without proper documentation or

an alien present in the United States for less than two years, unless the alien expresses an intent to

apply for asylum or has a fear of persecution or torture. According to DHS immigration policy

and procedures, Customs and Border Protection (CBP) inspectors, as well as other DHS

immigration officers, are required to ask each individual who may be subject to expedited

removal (i.e., arriving aliens who lack proper immigration documents) a series of “protection

questions” to identify anyone who is afraid of return.19

P.L. 99-603, S. 1200.

§302 of H.R. 2202 in the 104th Congress.

§141 of S. 1664 in the 104th Congress. In the Senate version of a related bill (S. 269), as introduced, §141 was

characterized as “special port-of-entry exclusion procedure for aliens using documents fraudulently or failing to present

documents, or excludable aliens apprehended at sea.”

The IIRIRA provisions amended §235 of the INA. For an earlier enacted version of expedited removal see The

Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA; P.L. 104-132, §422).

The required “protection questions” are Why did you leave your home country or country of last residence? Do you

have any fear or concern about being returned to your home country or being removed from the United States? Would

you be harmed if you were returned to your home country or country of last residence? Do you have any questions or is

there anything else you would like to add?

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If the alien expresses a fear of return, the alien is supposed to be detained by the Immigration and

Customs Enforcement (ICE) Bureau and interviewed by an asylum officer from DHS’ Bureau of

Immigration and Citizenship Services (USCIS).20 The asylum officer then makes the “credible

fear” determination of the alien’s claim. Those found to have a “credible fear” are referred to an

EOIR immigration judge, which places the asylum seeker on the defensive path to asylum.21 In

those cases in which the alien requests it, an immigration judge may review the USCIS asylum

officer’s determination that the alien does not have a credible fear of persecution. Under IIRIRA,

the review must 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 finding of no credible

fear.22

The law states that expedited removals are not subject to administrative appeals; however, those

in expedited removal who claim a legal right to reside in the United States based on citizenship,

legal permanent residence, asylee or refugee status are to be provided with additional procedural

protections, rather than being immediately returned. Aliens whose visas have been revoked by the

Department of State are subject to expedited removal. The expedited removal provisions provide

very limited circumstances for administrative and judicial review of those aliens who are

summarily excluded or removed.23 Additionally, those in expedited removal are subject to

mandatory detention.24

When expedited removal initially went into effect in April 1997, the INS applied the provisions

only to “arriving aliens” as defined in 8 CFR §1.1(q).25 The discussion accompanying the

regulation defining expedited removal procedures and “arriving aliens” clarifies:

The [Justice] Department acknowledges that application of the expedited removal provisions

to aliens already in the United States will involve more complex determinations of fact and

will be more difficult to manage, and therefore wishes to gain insight and experience by

initially applying these new provisions on a more limited and controlled basis.

The Department does, however, reserve the right to apply the expedited removal procedures

to additional classes of aliens within the limits set by the statute, if, in the [INS]

Commissioner’s discretion, such action is operationally warranted. It is emphasized that a

proposed expansion of the expedited removal procedures may occur at any time and may be

driven either by specific situations such as a sudden influx of illegal aliens motivated by

For further discussions of expedited removal, see CRS Report RL32621, U.S. Immigration Policy on Asylum

Seekers, by (name redacted).

For more information, see Obtaining Asylum in the United States: Two Paths to Asylum, at the USCIS website

http://uscis.gov/graphics/services/asylum/paths.htm#seekers.

INA §235(b)(1)(B)(iii)(III).

INA §235(b)(1)(C).

For more information on mandatory detention of aliens see CRS Report RL31606, Detention of Noncitizens in the

United States, by (name redacted) and (name redacted), and CRS Report RL32369,

Immigration-Related

Detention: Current Legislative Issues, by (name redacted).

“The term arriving alien means an applicant for admission coming or attempting to come into the United States at a

port-of-entry, or an alien seeking transit through the United States at a port-of-entry, or an alien interdicted in

international or United States waters and brought into the United States by any means, whether or not to a designated

port-of-entry, and regardless of the means of transport. An arriving alien remains such even if paroled pursuant to

§212(d)(5) of the act, except that an alien who was paroled before April 1, 1997, or an alien who was granted advance

parole which the alien applied for and obtained in the United States prior to the alien’s departure from and return to the

United States, shall not be considered an arriving alien for purposes of §235(b)(1)(A)(i) of the act.” 8 CFR §1.1(q).

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political or economic unrest or other events or by a general need to increase the effectiveness

of enforcement operations at one or more locations.26

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The logistics of expedited removal at ports of entry are fairly straightforward. Aliens placed in

expedited removal proceedings are detained pending a determination of their removability. At

land ports of entry, the aliens who are issued expedited removal orders are denied entry to the

United States. After the expedited removal order is issued at an air or sea port of entry, the airline

or sea carrier is required to take the inadmissible alien back on board or have another vessel or

aircraft operated by the same company return the alien to the country of departure.27

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On November 13, 2002, INS published a notice clarifying that certain aliens arriving by sea who

are not admitted or paroled are to be placed in expedited removal proceedings.28 This notice

concluded that illegal mass migration by sea threatens national security because it diverts the

Coast Guard and other resources from their homeland security duties.29 This expansion of

expedited removal was in response to a vessel that sailed into Biscayne Bay, Florida on October

29, 2002, carrying 216 aliens from Haiti and the Dominican Republic who were attempting to

enter the United States illegally.30

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In addition, on August 11, 2004, DHS published a notice potentially expanding the use of

expedited removal by authorizing the agency to place in expedited removal proceedings aliens

who:

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are determined to be inadmissible because they lack proper documents;

• are present in the United States without having been admitted or paroled following

inspection by an immigration officer at a designated port of entry;

• are encountered by an immigration officer within 100 air miles of the U.S.

international land border; and

• have not established to the satisfaction of an immigration officer that they have been

physically present in the United States continuously for the 14-day period immediately

preceding the date of encounter.

Department of Justice, “Inspection and Expedited Removal of Aliens; Detention and Removal of Aliens; Conduct of

Removal Proceedings; Asylum Procedures; Final Rule,” 62 Federal Register 10313, March 6, 1997.

INA §241(c), (d).

Department of Justice, “Notice Designating Aliens Subject to Expedited Removal Under §235(b)(1)(A)(iii) of the

Immigration and Nationality Act,” 67 Federal Register 68923, November 13, 2002.

23 I&N December 572 (A.G. 2003).

For more information on Haitian migration and this incident, see CRS Report RS21349, U.S. Immigration Policy on

Haitian Migrants, by (name redacted).

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The notice was given effect with respect to apprehensions made within the border patrol sectors

of Laredo, Rio Grande Valley (McAllen), Del Rio, Marfa, El Paso, Tucson, Yuma, El Centro, San

Diego, Blaine, Spokane, Havre, Grand Forks, Detroit, Buffalo, Swanton, and Houlton. Expedited

removal is only applied to nationals who are not from Mexico or Canada,31 and Canadians and

Mexicans with histories of criminal activities or immigration violations.32 DHS stated that

expanding expedited removal on the border “will enhance national security and public safety by

facilitating prompt immigration determinations, enabling DHS to deal more effectively with the

large volume of persons seeking illegal entry, and ensure the removal from the country of those

not granted relief, while at the same time protecting the rights of the individuals affected.”33 DHS

also maintains that the expansion of expedited removal will the interfere operation of human

trafficking and smuggling organizations.34

Nonetheless, DHS states that expedited removal currently can not be applied to the nearly one

million aliens who are apprehended annually on the southwest border, as it is not possible to

initiate formal removal proceedings against all of the aliens. The majority of aliens apprehended

along the southwest border are Mexican nationals who are “voluntarily” returned to Mexico

without a formal removal hearing.35 Nationals from countries other than Mexico (often referred to

as Other-than Mexicans or OTMs)36 must be returned to their home county by aircraft (when

apprehended at a airport) or placed into removal proceedings.37

Although the August 2004 notice stated that expedited removal could be applied to numerous

border patrol sectors along the southwest and northern borders, it was only expanded to all

eligible southwest border patrol sections in September 2005, and to the northern and coastal

borders in January 2006. Beginning in August 2004, expedited removal was piloted in the

Laredo, Texas and Tucson, Arizona sectors, and then expanded to the Rio Grande Valley, Texas

sector. In addition, expedited removal was used in the Yuma and El Centro Arizona, and the San

Diego, California sectors only for aliens who met the criteria for expedited removal and had

illegally reentered the United States while being subject to prior orders of exclusion, removal, or

deportation.38 On September, 14, 2005, the Secretary of Homeland Security stated that border

Nonetheless, Mexican nationals have historically been the largest group subject to expedited removal. From FY2000FY2003, Mexicans comprised 85.1% of all aliens issued expedited removal orders. U.S. Commission on International

Religious Freedom, Study on Asylum Seekers in Expedited Removal, Statistical Report on Expedited Removal, Credible

Fear, and Withdrawal, FY 2000-2003, February 2005.

Cubans are not subject to expedited removal under this regulation.

Department of Homeland Security, “Designating Aliens for Expedited Removal,” 69 Federal Register 48877,

August 11, 2004.

Department of Homeland Security, “Designating Aliens for Expedited Removal,” 69 Federal Register 48877-48881,

August 11, 2004.

Voluntary departure is a cost saving measure as DHS does not have to pay for aliens to be returned to their home

countries. Nonetheless, since aliens who agree to voluntary departure who are not at the border, agree to the leave the

United States on their own, the aliens may not depart from the United States.

For more information on the treatment of OTMs encountered on the southwest border, see CRS Report RL33097,

Border Security: Apprehensions of "Other Than Mexican" Aliens, by (name redacted), (name redacted), and (name redac

ted).

Department of Homeland Security, “Designating Aliens for Expedited Removal,” 69 Federal Register 48877-48881,

August 11, 2004.

Testimony of Chief, Office of the Border Patrol, David Aguilar, in U.S. Congress, House Committee on

Appropriations, Subcommittee on Homeland Security, Coping with Illegal Immigration on the Southwest Border,

hearings, 109th Cong., 2nd sess., July, 12, 2005. (Hereafter, Aguilar, Coping with Illegal Immigration on the Southwest

Border.)

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patrol agents had been trained in the application of expedited removal and expanded the use of

expedited removal to the entire southwest border. The Secretary also reported, that because of

support from Congress, DHS would acquire the additional detention space needed to detain the

increased number of aliens subject to expedited removal.39 Lastly, on January 30, 2006, the

Secretary announced the expansion of expedited removal along the northern and coastal

borders.40

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In terms of procedural due process under the Fifth Amendment, critics of expedited removal

maintain that immigration law has long made a distinction between those aliens seeking

admission to the United States and those who are already within the United States, irrespective of

the legality of the entry.41 In the latter instance, they observe, the Supreme Court has recognized

additional rights and privileges not extended to those in the former category, who are merely “on

the threshold of initial entry.”42 Some legal scholars continue to question whether the Constitution

applies at all to aliens seeking entry at the border or a port of entry, particularly in determining an

alien’s right to be here.43

Proponents of expedited removal state that it is well settled in the courts that aliens seeking

admission have no constitutional rights with respect to their applications for admission.

Accordingly, they cite the 1998 U.S. District Court decision in AILA v. Reno, in which the court

concluded that the aliens “cannot avail themselves of the protections of the Fifth Amendment to

guarantee certain procedures with respect to their admission.”44 Proponents similarly reject

arguments based upon equal protection claims for discrimination.45

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Proponents of expedited removal reference the provisions giving aliens who express a fear of

persecution or an intention to seek asylum the opportunity for a credible fear determination. They

usually cite statistics indicating that more than 90% of aliens who express a fear are deemed to be

credible (pass their credible fear hearing) and are able to bring their cases to an immigration

Department of Homeland Security, “DHS Expands Expedited Removal Authority Along Southwest Border,”

September 14, 2005, http://www.dhs.gov/dhspublic/display?content=4816.

Department of Homeland Security, “Department of Homeland Security Streamlines Removal Process Along Entire

U.S. Border,” January 30, 2006, at http://www.dhs.gov/dhspublic/display?content=5377.

For further analysis of legal issues, see CRS Report RL32399, Border Security: Inspections Practices, Policies, and

Issues, by (name redacted) et al.

Leng May Ma v. Barber, 357 U.S. 185, 187 (1958) (articulating the “entry fiction” doctrine).

For an example of this argument, see Mary Kenny, DHS Announces Unprecedented Expansion of Expedited Removal

to the Interior, American Immigration Law Foundation Legal Action Center Practice Advisory, August 13, 2004,

available at http://www.ailf.org/lac/lac_pa_081704.asp. (Hereafter Kenny, DHS Announces Unprecedented Expansion

of Expedited Removal to the Interior.)

American Immigration Lawyers Association (AILA) v. Reno, Nos. 97-0597, 97-1237, and 97-1229 (D.D.C. 1998).

Ibid.

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judge. They also note that the U.S. Commission on International Religious Freedom (USCIRF)

study found that DHS has mandatory procedures in place to ensure that asylum seekers are

protected under expedited removal.46 Testifying on the issue of expedited removal, C. Stewart

Verdery, Jr., formerly Assistant Secretary for Border and Transportation Security Policy and

Planning in DHS, concluded, “I am heartened to see that internal and external reviews of the

asylum process largely have concluded that DHS has handled this subset of cases

appropriately.”47

Critics of expedited removal maintain that a low-level immigration officer’s authority to order

removal is virtually unchecked. The officer’s decision to place the person in expedited rather than

regular removal proceedings, they argue, can result in the person losing substantive rights.

Indeed, they assert that there have been reports of abuse of the procedure since it was first

implemented at the ports of entry and many individuals with valid claims have been erroneously

removed.48 Critics refer to one investigation that found cases where aliens had requested the

opportunity to apply for asylum but were refused and “pushed back” at primary inspection.49

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As discussed, IIRIRA requires that aliens in expedited removal be detained, and thus aliens in

expedited removal who claim asylum are detained while their “credible fear” cases are pending.50

Prior to IIRIRA, most aliens arriving without proper documentation who applied for asylum were

released on their own recognizance into the United States (and given work authorization), a

practice which enabled inadmissable aliens falsely claiming persecution to enter the country. As a

result, many argued that the only way to deter fraudulent asylum claims was to detain asylum

seekers rather than releasing them on their own recognizance. Indeed the practice of detaining

asylum seekers has reduced the number of fraudulent asylum claims.51

However, others contend that the policy of detaining all asylum seekers who enter without proper

documentation is too harsh. The position of the United Nations High Commission on Refugees is

that detention of asylum seekers is “inherently undesirable.”52 They argue that detention may be

psychologically damaging to an already fragile population such as those who are escaping from

U.S. Commission on International Religious Freedom, Study on Asylum Seekers in Expedited Removal, February

2005.

U.S. Senate Committee on the Judiciary, Subcommittee on Terrorism, Technology and Homeland Security and

Subcommittee on Immigration, Border Security and Citizenship, hearing on “The Southern Border in Crisis: Resources

and Strategies to Improve National Security,” June 7, 2005.

For examples of this view, see American Immigration Law Foundation, DHS Announces Unprecedented Expansion

of Expedited Removal to the Interior, by Mary Kenney, August 13, 2004; and Center for Human Rights and

International Justice, University of California, Hastings College of Law, Report on the First Three Years of

Implementation of Expedited Removal, May 2000.

CBP has stated that it is “very concerned and dismayed that this is happening contrary to policy, and is taking steps

to address this.” U.S. Commission on International Religious Freedom, Study on Asylum Seekers in Expedited Removal,

February 2005.

H.R. 257, introduced on March 2, 2005, and H.R. 2092, introduced on May 23, 2005, by Representative Sheila

Jackson Lee, would remove the requirement that those in expedited removal are subject to mandatory detention.

CRS Issue Brief IB93095, Immigration: Illegal Entry and Asylum Issues, coordinated by (name redacted). This

report is archived and available from the author.

Office of the of the United Nations High Commissioner for Refugees. UNHRC Revised Guidelines on Applicable

Criteria and Standards Relating to the Detention of Asylum Seekers, February 1999. p. 1.

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imprisonment and torture in their countries. Often the asylum seeker does not understand why

they are being detained. Additionally, asylum seekers are often detained with criminal aliens.

From April 1, 1997, through September 30, 2001, there were 34,736 aliens in expedited removal

who made a claim of credible fear. Of these, 33,551 were detained, and 1,185 were paroled.53

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Concerns about the coordination across agencies involved in expedited removal are arising, an

issue that some observers argue has been exacerbated by the dispersal of immigration functions

into four different agencies.54 While one evaluation points to longstanding immigration

management issues,55 another study that focused on expedited removal concludes “[t]he

impediments to communication and information sharing within DHS ... are serious.” This study

further maintains:

Some procedures were applied with reasonable consistency, but compliance with others

varied significantly, depending upon where the alien arrived, and which immigration judges

or inspectors addressed the alien’s claim. Most procedures lacked effective quality assurance

measures to ensure that they were consistently followed.56

Supporters of expedited removal point to evidence of cooperation among the agencies and

maintain that proper training has been a key part of the expedited removal deployment.57 The

Administration states that all immigration officers who conduct expedited removal proceedings

have been trained in how to implement the statutory provisions and regulations. It further argues

that it “developed extensive, detailed regulations and procedures that go far beyond the statutory

requirements to ensure fair and consistent application of the law,” and adds that these regulations,

“were developed following public comment and input from various immigrant, legal and

community-based groups.... ”58

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There have been discussions about expanding expedited removal to include all groups authorized

under statute. In other words, aliens who had illegally entered the United States and could not

prove that they had been continuously present for more than two years would be detained and

Phone call with Maureen Stanton, INS Congressional Affairs, August 6, 2002.

Homeland Security Act of 2002 (P.L. 107-296) abolished INS and transferred most of its functions from the

Department of Justice (DOJ) to several bureaus in DHS. The responsibilities for expedited removal are spread across

Customs and Border Protection (apprehensions and inspections), Immigration and Customs Enforcement

(investigations, arrests, detention and deportation), U.S. Citizenship and Immigration Services (credible fear

determination, as well as all other immigration and naturalization adjudications), and DOJ’s Executive Office for

Immigration Review (asylum, immigration and removal hearings).

U.S. Government Accountability Office, Management Challenges Remain in Transforming Immigration Programs

GAO-05-81, October 2004.

U.S. Commission on International Religious Freedom, Study on Asylum Seekers in Expedited Removal, Executive

Summary, p. 4, February 2005.

U.S. Senate Committee on the Judiciary, Subcommittee on Terrorism, Technology and Homeland Security and

Subcommittee on Immigration, Border Security and Citizenship, hearing on “The Southern Border in Crisis: Resources

and Strategies to Improve National Security,” June 7, 2005.

U.S. Citizenship and Immigration Services, Fact Sheet, Expedited Removal, November 8, 2002.

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removed without hearings or review unless they claimed asylum. Proponents argue that expedited

removal is necessary to stretch enforcement resources.59 Opponents note that there are other ways

to accelerate the removal process (such as, the Institutional Removal Program)60 which are

efficient and do not sacrifice the aliens rights.61

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When aliens are placed in expedited removal, they do not have access to relief from deportation

other than asylum protections and protections under the torture convention, unless they claim a

legal right to reside in the United States based on citizenship, or legal permanent resident status.

For example, those in expedited removal would not be eligible for relief from deportation under

the Violence Against Women Act, Temporary Protected Status, or as trafficking victims.62 As

discussed above, aliens in full removal proceedings (under INA §240, see Appendix A for a

discussion of §240 removal proceedings) have access to more types of relief from removal than

those in expedited removal.

Opponents of expanding expedited removal argue that aliens in the United States have a

fundamental right to due process and other constitutional protections, and that the expansion

would deprive aliens of significant rights and safeguards (including the opportunity to apply for

immigration benefits for which they are eligible), and would be constitutional unsound.63 In

addition, those opposed to the expansion of expedited removal express concerns that since there

is no review by EOIR and only limited judicial review, the immigration officer’s authority to

order the alien removed is almost unchecked, and that there have been reports of abuse of the

expedited removal procedure since its inception, including aliens with valid legal status who were

expeditiously removed.64

Proponents of expanding expedited removal point to the law which states that aliens subject to

expedited removal have not “entered” the United States, and therefore are not entitled to these

rights. In addition, aliens in primary and secondary inspection do not have a right to

representation unless the alien has become the focus of a criminal investigation.65 Proponents

Testimony of C. Stewart Verdery, Jr., in U.S. Congress, Senate Judiciary Committee, Subcommittees on

Immigration, Border Security and Citizenship, and Terrorism, Technology and Homeland Security, The Southern

Border in Crisis: Resources and Strategies to Improve National Security, hearing 109th Cong., 1st sess., June 7, 2005.

(Hereafter, Verdery, The Southern Border in Crisis: Resources and Strategies to Improve National Security.)

The Institutional Removal Program (IRP) is a program during which incarcerated criminal aliens undergo their

removal proceedings while they are serving their criminal sentences. Once the alien has served his criminal sentence,

he is taken into ICE custody and quicky deported from the country.

Letter from Robert D. Evans, Director, Governmental Affairs Office, American Bar Association, to Public Comment

Clerk, regarding the Federal Register Notice of Expansion of Expedited Removal to Certain Jails in Texas, November

22, 1999.

For more information on these types of relief, see CRS Report RS20844, Temporary Protected Status: Current

Immigration Policy and Issues, by (name redacted) and (name redacted), and CRS Report RL30559,Immigration:

Noncitizen Victims of Family Violence, by (name redacted) and (name redacted).

Letter from Robert D. Evans, Director, Governmental Affairs Office, American Bar Association, to Public Comment

Clerk, regarding the Federal Register Notice of Expansion of Expedited Removal to Certain Jails in Texas, November

22, 1999.

Kenny, DHS Announces Unprecedented Expansion of Expedited Removal to the Interior.

Department of Justice, “Inspection and Expedited Removal of Aliens; Detention and Removal of Aliens; Conduct of

Removal Proceedings; Asylum Procedures; Final Rule,” 62 Federal Register 10319, March 6, 1997.

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reiterate that all expedited removal orders are reviewed by the immigration officers’ supervisors,

providing a built-in check to the system, and that there are safeguards built into the expedited

removal system for those who fear persecution.66

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Arguments for and against the expansion of expedited removal invoke the issue of resources.

While expanding expedited removal will increase the need for some resources, it will also lessen

the need for others. As a result, it is difficult to ascertain whether the expansion of expedited

removal will increase or decrease the cost of removing aliens. Since expedited removal

accelerates the removal of aliens by limiting the aliens’ access to judicial hearings and reviews, it

can reduce the costs of the DHS lawyers who represent the government’s position in removal

cases, the EOIR courts, and detention—both staff and bed space—, as the aliens are detained for

shorter periods of time.67 Similarly, as aliens in expedited removal are not eligible for bond, they

are also, unlike aliens in formal removal procedures, ineligible for bond redetermination

hearings68 in front of an immigration judge. In addition, there is evidence that the most recent

expansion of expedited removal along the southwest border has decreased the apprehensions of

OTMs along the border,69 which may imply that the expansion of expedited removal has been a

deterrent to those trying to enter the country illegally.

However, both the availability of detention bed space and transportation of aliens placed in

expedited removal (i.e., transporting the aliens to detention facilities, and returning the alien to

their home country) present barriers to expanding expedited removal.70 Aliens placed in expedited

removal are subject to mandatory detention, yet many of these individuals do not have criminal

records, multiple re-entries, or other characteristics that would make them subject to mandatory

detention absent expedited removal. Since aliens under expedited removal are subject to

mandatory detention while noncriminal aliens in removal proceedings are often not detained,

expanding expedited removal may raise detention costs (including transporting aliens to the

detention facilities), and make fewer beds available for other aliens to go through removal

proceedings.71 Notably, ICE has been at or above their detention capacity for several years.72 In

addition, expanding expedited removal would increase the need for deportation officers to arrange

the physical removal of the aliens, and USCIS asylum officers, to conduct the additional credible

fear hearings.

Department of Justice, “Inspection and Expedited Removal of Aliens; Detention and Removal of Aliens; Conduct of

Removal Proceedings; Asylum Procedures; Final Rule,” 62 Federal Register 10357, March 6, 1997.

Using expedited removal on these OTMs along the southwest border has reportedly reduced the average amount of

time in detention from 90 to 26 days. Verdery, The Southern Border in Crisis: Resources and Strategies to Improve

National Security.

Aliens who are not subject to mandatory detention may be released on bond. The minimum bond amount is $1,500,

and the bond amount may be set by ICE. Aliens given bond by ICE may request that an immigration judge have a

hearing to redetermine the bond amount. In addition, aliens in detention who are not mandatory detainees, may have a

hearing in front of an immigration judge to determine whether the alien will be released on bond.

Aguilar, Coping with Illegal Immigration on the Southwest Border.

Ibid.

Verdery, The Southern Border in Crisis: Resources and Strategies to Improve National Security.

Ibid.

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Proponents of expanding expedited removal note the delays imposed by immigration judges in

adjudicating removal cases, as well additional postponements resulting from the appeals process,

which can take years.73 In addition, they contend that aliens use frivolous appeals to postpone

deportation.74 Some note that any improvement that can reduce the delays in the removal process,

including both the courts and the actual deportation, can enhance the government’s ability to

enforcement immigration laws.75 Opponents of expanding expedited removals contend that

removing EOIR’s role in removal proceedings infringes on the rights of aliens and creates a

situation where there is little oversight, noting that recent changes in EOIR have helped

streamline the removal procedures.76

Expanding expedited removal raises questions about how the policy would be implemented. As

discussed previously, the process of expedited removal at ports of entry is fairly straightforward,

but there are issues that need to be explored to expand expedited removal into the interior. For

example, if an alien is arrested and placed in expedited removal, would he have a chance to

collect documents, or contact family or friends? Would the alien be released to gather documents

to prove that he is not subject to expedited removal?77 Since those in expedited removal are

subject to mandatorily detention, would the alien be detained?78 In addition, what happens to

aliens who are unable to be returned to their home countries because the country will not produce

travel documents? Would these aliens be subject to the same post-order-custody reviews as those

who were given final orders of removal and are unable to be returned to their native country?79

For example, in 1999, INS published an advance notice that it intended to apply expedited

For an example of this argument, see Michelle Malkin, The Deportation Abyss, Center for Immigration Studies,

Backgrounder, (September 2002); and Testimony of the Former Acting Director of the Office of Detention and

Removal Operations, David Venturella, in U.S. Congress, Senate Judiciary Committee, Subcommittees on

Immigration, Border Security and Citizenship, and Terrorism, Technology and Homeland Security, Strengthening

Interior Enforcement, hearing 109th Cong., 1st sess., April 14, 2005. (Hereafter, Venturella, Strengthening Interior

Enforcement.)

Howard Mintz, “Fight for Refuge,” San Jose Mercury News, September 18, 2005, p. 1. (Hereafter, Mintz, Fight for

Refuge.)

Venturella, Strengthening Interior Enforcement.

In 2002, the Board of Immigration Appeals (BIA) was streamlined. While some argue that this has increased the

efficiency of the BIA and reduced the backlog, others note that, especially in the 9th U.S. Circuit Court of Appeals,

there has been an increase in the number of cases being heard by the federal circuit court and being overturned and sent

back to EOIR to begin the removal proceeding process all over again, which extends the time that an alien is in removal

proceedings. Mintz, Fight for Refuge, p. 1.

Interestingly, the issue of proving eligibility for expedited removal was addressed during the discussion of expanding

expedited removal to three jails in Texas. Under the proposed program, expedited removal would only be applied to

aliens that the Federal Courts had affirmatively determined have entered illegally. Since these aliens have been

convicted of illegal entry, the court records and documentation in the file will clearly establish the time, place, and

manner of entry, thereby establishing eligibility for expedited removal.

Kenny, DHS Announces Unprecedented Expansion of Expedited Removal to the Interior.

Detained aliens who have been ordered removed and have not been removed within six months after the 90 removal

period has expired, are subject to a post-order-custody review to determine whether the alien can be removed in the

foreseeable future. If the review rules that the alien can not be removed in the foreseeable future, in almost all cases the

alien must be released. For more details on post-order-custody reviews, see CRS Report RL31606, Detention of

Noncitizens in the United States, by (name redacted) and (name redacted).

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removal on a pilot basis to certain criminal aliens beings held in three correctional facilities in

Texas.80 The program was never implemented. Under this pilot program expedited removal would

have only been applied when the federal courts had affirmatively determined that the alien fell

within the illegal entry criteria for expedited removal.81

As discussed above, the INS wrote in the interim rule on expedited removal that the “application

of the expedited removal provisions to aliens already in the United States will involve more

complex determinations of fact and will be more difficult to manage.... ”82 Nonetheless, expedited

removal has been in practice for eight years, providing DHS with insight on the process, and

presumably putting DHS in a better position to expand expedited removal than when the policy

was new. Furthermore, to expand expedited removal, proper training would have to be provided

to immigration officers implementing expedited removal. DHS stated that training was one of the

reasons that expedited removal was implemented in stages along the southwest border.83

To have been subject to expedited removal under the pilot program, the aliens would have: (1) either had to have

been convicted of illegal entry into the United States, or have had the court establish the time, place and manner of

entry; (2) not to have been admitted or paroled into the United States; and (3) not to have been physically present for

two years. The correctional facilities were Big Spring Correction Center, Eden Detention Center, or Reeves County

Bureau of Prisons Contract Facility.

Department of Justice, “Advance Notice of Expansion of Expedited Removal to Certain Criminal Aliens Held in

Federal, State, and Local Jails,” 64 Federal Register 51338, September 22, 1999. The rational for the pilot program was

that each year thousands of criminal aliens had undergone removal proceedings prior to their release from criminal

custody. If the alien was removable, the alien was removed from the country upon completion of their criminal

sentence, shortening the amount of time the alien would have to be in immigration custody, and lessening the cost of

detaining the alien. Many incarcerated aliens had been convicted of illegal entry, and were given relatively short

sentences that made it difficult to complete removal proceedings prior to the completion of their criminal sentences.

Federal Register, vol. 62, no. 44, p. 10313 (March 6, 1997).

Department of Homeland Security, “DHS Expands Expedited Removal Authority Along Southwest Border,”

September 14, 2005. Available at http://www.dhs.gov/dhspublic/display?content=4816.

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When DHS encounters an alien that DHS thinks should be removed from the United States, the

alien is presented a Notice-to-Appear (NTA),84 which commences the removal proceeding.85 The

NTA is comparable to a charging document in criminal courts. The NTA outlines the charges

against the alien, and identifies which part of the immigration statute the alien is being charged

with violating.

If the alien’s NTA is issued by the border patrol and the alien is not taken into custody, the alien is

released on his own recognizance. If the NTA is issued by ICE, an alien not subject to mandatory

detention may be released on bond. If the alien is not a mandatory detainee and is not released on

bond, the alien may request a bond redetermination hearing before an immigration judge to have

the bond lowered, or to be given bond. During the bond hearing, the alien must prove that he is

not a flight risk or a danger to society.86 Bond hearings are not considered part of the removal

process.

The alien’s first appearance in immigration court is at the master calendar hearing, a preliminary

hearing to review the case. In absentia cases,87 and cases where the respondent concedes

removability and does not apply for relief, are decided at the master calender hearing. Relief from

deportation can be granted at the master calender hearing if both the government and the alien

agree to the relief. Frequently the cases of detained aliens are also concluded at the master

calender hearing. Nonetheless, under most circumstances, at the master calender hearing, a time

is set for an individual merit hearing. The individual merit hearing is the time when the

government’s attorney must prove the charges on the NTA, witnesses are presented, and the judge

rules on whether the alien is removable from the United States and is eligible for relief from

removal.88 Within 30 days after the hearing, the government’s attorney or the alien may appeal the

decision to the Board of Immigration Appeals (BIA). After the BIA decision the alien may appeal

to a federal court.

The first step in a court removal proceeding is that DHS must establish that the person in court is

indeed an alien.89 Then, if the alien establishes that he/she was admitted, then the burden shifts

back to DHS to prove that the alien is deportable. The alien has the burden to prove that he/she is

eligible for any form of relief. An alien who fails to appear for a removal hearing (absent

CBP, the Bureau of Immigration and Customs Enforcement (ICE), and USCIS issue NTAs.

As discussed above, IIRAIRA eliminated the distinction between exclusion and deportation proceedings, combining

them into removal proceedings. Removal proceedings are generally the sole procedure for determining whether an alien

is inadmissible, deportable, or eligible for relief from removal.

In FY2004, 37% of those released on bond or on their own recognizance, and 40% of aliens who were never detained

failed to appear for their removal hearings. Department of Justice, Executive Office of Immigration Review, FY2004

Statistical Yearbook, pp. 24-26.

In absentia cases are where the alien does not attend the hearing, and thus the immigration judge summarily rules on

removability.

Examples of relief from deportation are voluntary departure, cancellation of removal, and asylum.

Gordon, Charles, et al. Immigration Law and Procedure §64.11.

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exceptional circumstances) can be removed in absentia and is ineligible for relief from removal

for 10 years.90 In addition, the alien becomes inadmissible for five years.91

The courts have ruled that removal proceedings are civil not criminal, and that deportation is not

punishment. Thus, there is no right to counsel, no right to a jury trial, and the due process

protections are less than in a criminal trial. Furthermore, a decision on removablity does not have

to be proven beyond a reasonable doubt. In addition, because deportation is not punishment,

Congress may impose new immigration consequences for actions that previously occurred (i.e.,

actions which would not have made the alien deportable when they occurred, may make the alien

deportable at a later date if Congress changes the law). IIRAIRA limited the time and number of

motions to reopen92 and reconsider93 removal cases for the alien.

INA §240(b)(7). Relief includes being able to adjust status or change nonimmigrant classification or take advantage

of the registry.

An alien is inadmissible to the United States under §212(a)(6)(B) if he/she failed to attend his/her removal

proceeding without “reasonable cause.”

A motion to reopen is filed if there are new facts or law or intervening circumstances which may change the results

of the hearing. With some exception, only one motion to reopen may be filed and it must be filed within 90 days of the

final administrative order of removal. Gordon, Charles, et al. Immigration Law and Procedure §64.18.

A motion to reconsider must be filed within 30 days of the final administrative order of removal, and may assert that

the IJ or BIA made errors of law. Only one motion to reconsider may be filed. Charles Gordon, et al. Immigration Law

and Procedure §64.19.

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Several bills in the 110th Congress—H.R. 2413,H.R. 2954, and H.R. 4065—would have codified

the current policy applying expedited removal to aliens encountered within 100 miles of an

international land border who have not been in the United States more than 14 days. H.R. 2413

was introduced by Representative Daniel Lungren on May 21, 2007. H.R. 2954 was introduced

by Representative Peter King on July 10, 2007, and H.R. 4065 was introduced by Representative

James Sensenbrenner on November 7, 2007.

H.R. 750 would have specified that asylum seekers who pass credible fear hearings, and

unaccompanied alien minors are not eligible for expedited removal (which is the current policy).

H.R. 750 would also have eliminated mandatory detention of aliens in expedited removal. H.R.

750 was introduced by Representative Sheila Jackson Lee on January 13, 2007.

Other bills would have expanded expedited removal. H.R. 519, introduced on January 17, 2007,

by Representative John T. Doolittle, was comparable to H.R. 4032 in the 109th Congress. H.R.

519 would have required that expedited removal be applied to all aliens who are eligible under

the statute. Thus, unlike current policy, aliens in the interior of the country who have not been

admitted or paroled into the United States, and who could not affirmatively show that they have

been physically present in the United States continuously for two years, would have been subject

to expedited removal. H.R. 3638 would have expanded expedited removal by applying it to aliens

who were unlawfully present in the United States and who were arrested for any offense by state

or local law enforcement. On September 24, 2007, Representative Dan Burton introduced H.R.

3638.

S. 1639 would have mandated that the Secretary of DHS establish procedures to ensure that

questions asked by DHS employees when exercising expedited removal authority were asked in a

standard manner, and are recorded. S. 1639, introduced by Senator Edward Kennedy, was placed

on the Senate calender on June 19, 2007. It was debated on the Senate floor, and pulled on June

28, 2007, when cloture was not invoked.94

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(name redacted)

Specialist in Immigration Policy

[redacted]@crs.loc.gov, 7-....

(name redacted)

Specialist in Immigration Policy

[redacted]@crs.loc.gov, 7-....

The Senate voted 46 to 53 not to invoke cloture. (Record vote number 235.) S. 1639 was introduced on June 18,

2007.

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