New York Lawyer's Legal Updates

As If 2020 Couldn’t Get Any Worse: Expedited Removal Is Back

Author: USA Immigration Lawyer Alena Shautsova

Plain and simple: Expanded Expedited Removal is Back. Here is a list of everyone who should not be placed into Expedited Removal Proceedings. If you are without status, or even a permanent resident in some situations, it is important to read this over and check to see if you fall under one of the exceptions to the expedited removal procedure. The information I am about to share could save you or a loved one not only from hefty legal fees but also years of heartache and separation. Read carefully and read to the end.

Remember, not everyone can be subjected to expedited removal: under the expanded guidelines, it is first of all persons who cannot provide that they have continuously resided in the US for 2 years. But the problem is that this “proof” has to be done immediately upon detention: you may agree, that your arguments will be mostly useless once you are physically removed out of the US.

The Consequences of Expedited Removal Orders: a person is expeditiously removed within 48 hours (in practice can be much longer depending on the situation) from the US. They do not have access to go to court like normal deportation proceedings. Once commenced, the exceptions listed below are the only means of stopping the expedited removal, but the person must present these arguments as soon as possible. Once an Expedited Removal Order is issued, a person is automatically barred from reentering the US for a minimum of 5 years, even if the order was issued in error. The only way to rescind the order is to request the agency that issued the order to rescind it. A total of 2 known requests to rescind an Expedited Removal Order have been granted out of over 3000 known requests within the legal community.

Exceptions to Expedited Removal:

  1. People, eligible to withdraw their applications for admission.
    1. This is a discretionary exception that is available usually when a person is found to be ineligible to enter the US at a port of entry. It is usually only available for those that entered the US through a legal port of entry but were ineligible for entry at the time.
      1. Students for example are the most common example, they get accepted to a school and get their visa but do not look at the validity dates and enter the US a few weeks early.
      2. Another example is a person that is waiting outside of the US for a previous bar on reentering the country after deportation. The person may have their petition approved and try to enter on the approved petition a few weeks early from the expiration of their bar from a previous deportation.
    2. In both cases, the CBP (US Customs and Border Patrol) will usually tell the person that they cannot enter and will have to come back in a few weeks when they are eligible. However, be careful about what you sign in these situations. Some officers may innocently, or not so innocently give you an expedited removal order.
    3. Making the request to withdraw the admission to the US in this situation will ensure the innocent mistakes on both parties' ends do not create any long-lasting detrimental effects. The applicant should also state that they are able to depart the US immediately at their own expense. A person will usually remain in custody until they are able to depart the US.
    4. Apologizing for the mistake also goes a long way in these situations, be courteous and try not to upset the person who has the sole choice in what happens to you for the next 5 years. Remember, unfortunately, there is virtually no appeal of the decision to issue an Expedited Removal Order.
  2. Unaccompanied Minors
    1. Unaccompanied minors represent a special case for requesting withdrawal of an application for admission. In the case of unaccompanied minors, the request to withdraw their admission is automatic, unlike the discretion given to adults when making the same request.
    2. Moreover, as per the immigration laws of the US, a CBP officer must place an unaccompanied minor in normal removal proceedings “in the case of countries with known human rights abuses or where turmoil exists.”
    3. Once placed in removal proceedings, an unaccompanied minor will have a chance to defend themselves in immigration court rather than be subjected to a two-day expedited removal.
    4. **The exception to the exception** Unaccompanied minors with aggravated felonies or caught by an immigration officer in the act of committing an aggravated felony are subject to expedited removal. The aggravated felony in these cases is usually drug trafficking. Entering the US with fraudulent documents does not count unless the minor understood that they were entering with fraudulent documents and is not trying to claim asylum.
  3. Claim of a valid Status
    1. Sometimes immigration officers will attempt to place a person in expedited removal proceedings because they do not possess a valid ID on them at the time. This is more common in states along the US-Mexico border but can happen anywhere at this time.
    2. If a person is a Permanent Resident, Refugee, Asylee (granted asylum status already), or a US Citizen, the immigration officer can detain the person until their identity and status can be authenticated.
    3. If the immigration status of the person cannot be identified they will be referred to an Immigration Judge. There is no appeal from the decision of the Immigration Judge but a person can have an attorney present during this hearing. The purpose of the hearing is to determine immigration status to see if the person is eligible or not for expedited removal proceedings.
    4. If a person is a permanent resident, refugee, or was granted asylum, but they are inadmissible to the US for a different reason they will be referred to normal removal proceedings.
    5. It is important to explain if you do have a valid status because even with a valid status, an expedited removal order can create further immigration issues even if the order was issued in error.

All of the above does not change the fact that when a person voices a valid fear of return to their home country, they have to be afforded a credible fear interview, and given a chance to present their asylum claim.

If you need help with a removal/deportation defense, call our office to reserve a confidential consultation at 917-885-2261.

21 October 2020
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