On July 23, 2019, The Department of Homeland Security (“DHS”) announced that it has expanded the use of expedited removal. The changes are effective immediately and are wide-ranging.
Expedited Removal (“ER”) is a way that the government deports (removes) people from the USA without a hearing in front of an immigration judge or review. In general, ER can be applied to people who enter the United States without being inspected and admitted or if a person is accused of entering the United States through fraud or misrepresentation. The government has expanded its authority to include anyone who is found within the United States who cannot prove that they have been continuously physically present in the United States for at least two years.
Historically, DHS has limited the scope of expedited removal to the border or within 100 miles of the border and only applied it to people who had been in the United States for 14 days or less. This change marks a dramatic expansion and is problematic to immigrants for a number of reasons. First, racial profiling is a major concern- U.S. citizens, asylum seekers, green card holders, unaccompanied minors, and other noncitizens that are exempt from expedited removal by statute could be unlawfully targeted for removal because of the color of their skin. These people may be unable to prove (on the spot) that they have been physically present in the United States for at least two years. Second, DHS officers may not apply the exceptions to ER- especially that applicable to people who are scared to return to their home country. These migrants must be referred to an asylum officer, as required by law. However, DHS is notorious for often failing to do so. Third, citizens who lack identification and noncitizens who have resided in the United States for years but who are unable to document their physical presence may be vulnerable to removal because of inadequate paperwork.
It is important to note that DHS has broad discretion to decide who to put into ER proceedings. It is not mandatory for them to expand its use in such a broad way. Historically, DHS has used prosecutorial discretion to place some people who are subject to ER into regular removal proceedings, which allow them to see an Immigration Judge. The best advice is to carry proof of your immigration status (if applicable) at all times. For those who are undocumented, carry some sort of proof that you have resided in the United States for more than two years, such as a copy of your children’s birth certificates (if applicable). There are ways to challenge E.R., but they are difficult and you have to act very quickly. If you have any questions, regarding this or any other area of immigration law, please schedule a consultation or meeting with one of our attorneys.
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