Published July 24, 2019
The number of foreign nationals living in the U.S. in violation of our immigration laws is estimated to be in the area of 12 million. Whether they overstayed their visa status or entered without any visa or inspection at all, these are the individuals our society deems “undocumented”, or in some circles, “illegal aliens”. No matter the label, the vast majority of these individuals have a right to a hearing before a judge where a variety of defenses can be considered, including cancellation of removal (for longtime undocumented residents with qualifying U.S. family) and asylum. Among the 12 million though are a small percentage who have arrived in the U.S. within the past 2 years AND without inspection, and the Trump Administration has announced that it will now be targeting this group for “expedited removal”.
What is expedited removal?
The concept of expedited removal was created by federal statute in 1996 and at its inception, was narrowly applied to undocumented individuals with criminal records or repeated immigration violations and who had recently entered the U.S. without inspection and who were apprehended within 100 miles of the border. Under expedited removal, the foreign national has no right to a court hearing, no right to speak to or be represented by an attorney, no relief/defense to removal proceedings and no right to an appeal. The only exception to this is if the recent undocumented arrival expresses a fear of return to their home country due to the persecution they would face on account of their race, religion, political belief or social group, and if so, due process and hearing safeguards allegedly kick in. Otherwise, expedited removal can be carried out by immigration law enforcement agents at will, and with no oversight by an outside entity such as a court.
Who is being targeted for expedited removal under the expanded program?
Under the new, expanded expedited removal initiative, any individual who entered the U.S. in the past 2 years without inspection or by way of fraud/misrepresentation, and regardless of where in the U.S. he/she is apprehended can be subject to expedited removal. It is estimated that approximately 300,000 undocumented individuals fall under this category.
Who is not subject to expedited removal?
Among the individuals who cannot be subjected to expedited removal are U.S. citizens, lawful permanent residents, individuals in lawful non-immigrant visa status, individuals who overstayed their visas after a lawful admission OR individuals who entered without inspection but more than 2 years ago.
What are the dangers of this expedited removal policy?
The biggest danger is that the immigration law enforcement personnel charged with implementing the law may not actually follow the law. There is currently no higher authority, such as a court, to keep a check on the law enforcement official or process. Just because you are a U.S. citizen, lawful permanent resident, undocumented person who has been in the U.S. for more than 2 years or have a fear of persecution in your home country, does not mean you could not fall within the net of expedited removal by some government agent mistake or deliberate abuse of power.
What is my advice for individuals who may be vulnerable to expedited removal?
If an individual is somehow apprehended, he/she should be sure to ask to speak with an attorney and request a hearing before a judge. Further he/she should have a quick avenue of communication with a trusted family member or friend in place who is in a position to get a lawyer involved without delay and so as to make sure the apprehended individual’s rights are not compromised. Additionally, individuals who feel they may be targeted must carry with them evidence that they are exempt from expedited removal, such as proof of U.S. citizenship, lawful permanent residence (green card), or for those in the U.S. without legal status – documentation reflecting legal entry and/or 2+ years of physical presence.
Will the implementation of this program be challenged in the courts?
Yes. The American Civil Liberties Union and other groups intend on filing lawsuits against the U.S. government to halt implementation due to the constitutional violations this new policy presents. A spokesman for the ACLU’s Immigrant Rights Project bluntly addresses the issue stating – “Under this unlawful plan, immigrants who have lived here for years would be deported with less due process than people get in traffic court.”
PUBLISHED July 24, 2019– “IMMIGRATION LAW FORUM” Copyright © 2019, By Law Offices of Richard Hanus, Chicago, Illinois