Expedited removal for people in the US for less than 2 years

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Practice Alert: Trump Administration Expands Application of Expedited Removal

AILA Doc. No. 19072207 | Dated July 22, 2019

On July 22, 2019, DHS announced that it is significantly expanding expedited removal to apply throughout the United States to individuals who have been in the United States for less than two years. This practice alert provides information on the announcement, who it applies to, and what it means for AILA members and their clients.


Expedited removal is a fast track, summary process for removing certain noncitizens without a hearing before an immigration judge. By statute, expedited removal applies only to individuals who are inadmissible pursuant to INA §§212(a)(6)(C) and (a)(7) – that is, individuals who lack valid entry documents, who commit fraud or misrepresent a material fact to obtain admission, or who falsely claim U.S. citizenship.

On July 22, 2019, DHS published an advance copy of a Notice “Designating Aliens for Expedited Removal” in the Federal Register (“Notice”). It will be officially published in the Federal Register on July 23, 2019, and take effect the same day.

In the announcement, DHS states that it will expand expedited removal nationwide to individuals who are inadmissible under INA 212(a)(6)(C) or (7) and have been in the U.S. for less than 2 years. The announcement asserts that DHS is exercising the full remaining scope of its statutory authority to place noncitizens in expedited removal proceedings. The Notice is not a proposed or final rule, but rather notification to the public that it will be changing its policy. DHS asserts that it is not required to undergo notice-and-comment rulemaking but is nonetheless accepting comments for 60 days after July 23. Media outlets had reported earlier this year that the Administration was considering this plan.

Who Did Expedited Removal Apply to Prior to July 23, 2019?

Before the July 22 announcement, DHS had applied expedited removal to noncitizens inadmissible under INA §§212(a)(6)(C) and (a)(7) encountered within 100 air miles of the border who have not been physically present in the United States continuously for 14 days.

Who Will Expedited Removal Apply to Starting July 23, 2019?

The July 22 announcement expands the use of expedited removal to cover the whole country and to apply to noncitizens who have been in the U.S. for under two years. Thus, beginning on July 23, DHS will apply expedited removal to all noncitizens who are inadmissible under to INA §§212(a)(6)(C) and (a)(7) and who have not been continuously physically present in the U.S. for at least two years, no matter where in the country ICE or CBP encounters them.

This significant expansion will mean that DHS officers in the interior of the country will be able to bypass immigration court and put noncitizens directly on a fast track to removal.

How Will the Expansion Be Applied and Implemented?

The Notice has very few details on how it will implement such a far-reaching, immense change. However, the following information may be helpful in order to understand the new policy:

  • Fear of Persecution Abroad: Anyone who is subject to expedited removal and expresses a fear of persecution abroad will be subject to current procedures for credible fear screenings.

  • Prosecutorial Discretion: DHS states that immigration officers may exercise their discretion to allow affected noncitizens to return voluntarily, withdraw applications for admission, or be placed in full removal proceedings before a judge. It plans to issue guidance on the use of this discretion but does not specify a timeline for the guidance or whether it will be made public.

  • Physical Presence Requirement: The Notice specifies that any absence from the U.S. would break the physical presence requirement. The burden is on noncitizens to show that they have been in the U.S. for at least two years, but DHS does not include any information on what evidence it will accept to prove two years of continuous physical presence. It states only that DHS officers will place noncitizens in expedited removal if they have not shown “to the satisfaction of an immigration officer” that they have been “physically present in the United States continuously for the two year period immediately preceding the date of the determination of inadmissibility.”

Is Anyone Planning to Sue?

The American Immigration Council, along with the American Civil Liberties Union, have announced that they plan to sue the government to stop the expansion of expedited removal.

Why are processing times slowing down with DHS?

“While President Trump continues his very public fight for the construction of a physical wall, little by little, he and his administration are quietly and very deliberately restricting and slowing the pace of legal immigration by building an “invisible wall.”

What to do if you, or someone you know, is detained by immigration enforcement

If you, or someone you know, has been detained by immigration enforcement in the Bay Area, you may call one of these hotlines for assistance:  

Alameda County - (510) 241-4011

San Francisco County - (415) 200-1548

San Mateo County - (203) NOMIGRA (203-666-4472)

Santa Clara County - (408) 290-1144

Monterrey County - (831) 643-5225

Fresno County - (559) 978-4797

Sacramento County - (916) 245-6773

Santa Cruz County - (831) 239-4289

SIREN (texting) - (201) 468-6088

USCIS to accept DACA filings again

A federal district court has ordered the US Citizenship and Immigration Service to start accepting DACA applications again.  The USCIS has updated its website to indicate that they will accept DACA filings from the following

1. You may file to renew your DACA status if you are currently in DACA status

2. You may file to renew your DACA status if your DACA status expired after September 5, 2016

3. You may file an initial DACA application if your DACA status expired before September 5, 2016

You may not file for DACA if you were never previously granted DACA status. The USCIS will not issue advance parole to any DACA applicant.

This information can change at any time. Please visit the USCIS website for updates: https://www.uscis.gov/humanitarian/deferred-action-childhood-arrivals-response-january-2018-preliminary-injunction

For a scholarship to help pay DACA fees, please visit this website: https://missionassetfund.org/daca-grant/

Trump's Third Attempt at a Travel Ban is Blocked!

A District Court in Hawaii has blocked the travel ban as it applies to all countries except Venezuel and North Korea.  According to the Hawaii court, “EO-3 suffers from precisely the same maladies as its predecessor: it lacks sufficient findings that the entry of more than 150 million nationals from six specified countries would be “detrimental to the interests of the United States,” a precondition that the Ninth Circuit determined must be satisfied before the Executive may properly invoke Section 1182(f).”

The Department of State has indicated that it has instructed its consulates to continue processing visas as usual.

DACA Program will terminate

The White House, Trump and Sessions have terminated the DACA (Deferred Action for Childhood Arrivals) program.  However, the Department of Homeland Security ("DHS") website states that DACA recipients will be able to maintain their deferred action status and work authorization through the expiration of their work authorization and status.

In addition, DACA recipients may file to extend DACA until October 5, 2017.  After that date no extension requested will be accepted by the USCIS.  

Finally, according to DHS, no travel authorization will be issued to DACA recipients as of September 5, 2017.

Information posted to the DHS website is subject to change without notice.

You can go directly to the DHS website at https://www.dhs.gov/news/2017/09/05/frequently-asked-questions-rescission-deferred-action-childhood-arrivals-daca


Supreme Court decision on travel ban, 6/26/2017

The US Supreme Court has chosen to hear the travel ban issue.  They will hear arguments in the case in October 2017 and issue a decision sometime after the arguments.  However, the US Supreme Court issued a decision regarding the injunction.  The US Supreme Court determined that until it hears the case, the travel ban can go into effect in regards to individuals from Lybia, Iran, Syria, Yemen, Somalia and Sudan who do not have  “a credible claim of a bona fide relationship with a person or entity in the United States.”

Click here for more details.

4th Circuit upholds nationwide preliminary injunction on travel ban on May 25, 2017

4th Circuit states:

"The question for this Court, distilled to its essential form, is whether the Constitution, as the Supreme Court declared in Ex parte Milligan, 71 U.S. (4 Wall.) 2, 120 (1866), remains “a law for rulers and people, equally in war and in peace.” And if so, whether it protects Plaintiffs’ right to challenge an Executive Order that in text speaks with vague words of national security, but in context drips with religious intolerance, animus, and discrimination. Surely the Establishment Clause of the First Amendment yet stands as an untiring sentinel for the protection of one of our most cherished founding principles—that government shall not establish any religious orthodoxy, or favor or disfavor one religion over another. Congress granted the President broad power to deny entry to aliens, but that power is not absolute. It cannot go unchecked when, as here, the President wields it through an executive edict that stands to cause irreparable harm to individuals across this nation. Therefore, for the reasons that follow, we affirm in substantial part the district court’s issuance of a nationwide preliminary injunction as to Section 2(c) of the challenged Executive Order."


New Executive Order on Travel Ban and Refugee Resettlement Ban

As you may have heard, the United States President issued a new executive order on March 6, banning travel to the United States from certain countries starting on March 16, 2017, for at least 90 days.  The countries on the list are the same as the ones from the prior travel ban except that Iraq was removed from the list.  Therefore, people from the following countries, Iran, Somalia, Sudan, Syria, Libya and Yemen will not be able to obtain a visa to enter the United States after March 16, 2017.  The prior travel ban will be revoked as of March 16, 2017.

The new travel ban affects people who do not already have a visa.  It does not apply to United States citizens, lawful permanent residents of the US or to people who have dual citizenship in county not on the list.

Various organizations and states are filing lawsuits to challenge the constitutionality of this travel ban. 

The new order also suspends refugee resettlement to the US for 120 days and reduces the total number of refugees that that the US will allow to resettle in the US once the ban is lifted.  This ban should not impact asylum cases.  The suspension and reduction of refugee resettlement will also be challenged in court.

According to the order the following people from the listed countries will not be allowed to enter the US as of March 16, 2017, unless a court order stays implementation of the ban:

·         Those who are outside the US as of March 16, 2017

·         who did not have a valid visa as of January 27, 2017 and

·         Do not have a valid visa on March 16, 2017.

The order does not apply to the following people from the listed countries:

·         United States citizens

·         Lawful permanent residents

·         Those who have advance parole

·         Those with a valid visa as of January 27, 2017 that is still valid on March 16, 2017

·         Any refugee already granted admission

·         Diplomatic visas

·         Asylum applicants

Those people who would be applying for a visa to the US will not be issued a visa starting on March 16, 2017 unless they meet the requirements for an exception which include showing that

·         Denying the visa would cause undue hardship

·         The individual is not a threat to national security and

·         The issuance of the visa would be in the national interest.

Anyone whose visa was revoked under the prior travel ban is eligible for a travel document to enter the United States.  The order states that non immigrant visas issued prior to March 16, 2017 will not be revoked or cancelled as a result of this order.  

The order also requires in person interviews for all non-immigrant visas applications from all countries.  This requirement may increase interview wait times so plan ahead.

If you were born in one of the listed countries you should not travel outside the US if you are in non-immigrant status or even if you are a lawful permanent resident, before speaking with an attorney and checking the Customs and Border Patrol (“CBP”) website.  In addition, during the implementation of the last travel ban there was a lot of confusion at the ports of entry and inconsistency in the application of the ban.  If you do not need to travel, you should consider forgoing traveling until the travel ban is lifted.

If you are from one of these countries and are also a United States citizen, lawful permanent resident, a non-immigrant, an asylee, or an applicant for asylum or adjustment of status, this Executive Order does not apply to you.  The Executive Order does not affect United States citizens, lawful permanent residents in the United States, asylees, non-immigrant visa holders in the United States and applicants for benefits in the United States.  However please be advised that if you are an asylee or have an application pending with the USCIS, even if you are not from one of the listed countries, you may have other travel restrictions.  Please consult with an attorney if you have any doubt about traveling outside the U.S.

The long term impact of the travel ban if it is not found to be unconstitutional could result in significant restriction of travel from certain “designated” countries.  The order requires the Secretary of State and DHS Secretary to provide the President with a list of countries that will be banned if the country does not adequately share information with the United States.  Allows the DHS Secretary to recommend additional countries, at any time, to be added to the list.


Know Your Rights

It is important to know your rights if the police stop you or immigration authorities or the police come to your home.  As an immigrant, you do not have to provide information about your immigration status unless the authority has a warrant.  Please see the attached link for information regarding your rights.  The link also contains information to help you form a plan for your family in the event you do have contact with immigration authorities.



Muslim Ban Does Not Apply to Asylum and Adjustment of Status in the United States

On February 3, 2017 the USCIS issued a memorandum indicating that they will continue to adjudicate asylum applications according to existing regulations for people from the seven listed countries.

USCIS will continue refugee interviews of individuals who are religious minorities in the country from which they claim persecution.

USCIS will continue refugee processing for individuals from countries with with the US has an international agreement.

USCIS will continue refugee processing for family members (I-730) who are in the United States.


Court Stops Muslim Ban

A district court has issued an order stopping the muslim ban as it relates to the issuance of visas and travel to the United States.  Other secitions of the Executive Order that were not challenged remain in effect.  As of February 4, 2017, the Department of State has indicated that it will reinstate visas that have been revoked and airlines will allow people from the seven listed countries to board flights to the United States.


From the Department of Homeland Security (DHS):

In accordance with the judge's ruling, DHS has suspended any and all actions implementing the affected sections of the Executive Order entitled, "Protecting the Nation from Foreign Terrorist Entry into the United States."

This includes actions to suspend passenger system rules that flag travelers for operational action subject to the Executive Order.

DHS personnel will resume inspection of travelers in accordance with standard policy and procedure.

At the earliest possible time, the Department of Justice intends to file an emergency stay of this order and defend the President's Executive Order, which is lawful and appropriate. The Order is intended to protect the homeland and the American people, and the President has no higher duty and responsibility than to do so.

For the latest information, please visit the DHS website: https://www.dhs.gov/news

Sharon Dulberg on The Nine

Attorney Sharon Dulberg discussing the impact of President Trump's executive orders regarding refugees and immigrants.

Travel Warning for Certain Countries

As you may have heard, the United States President issued an executive order on Friday, January 27, 2017, banning travel to the United States from certain countries.  The countries on the list as of the writing of this letter are Iran, Iraq, Somalia, Sudan, Syria, Libya and Yemen.  The ban is temporary, for 90 days.  However, the Executive Order allows the President to extend the ban.

If you were born in one of the listed countries you should not travel outside the US if you are in non-immigrant status or even if you are a lawful permanent resident, before speaking with an attorney and checking the Customs and Border Patrol (“CBP”) website.

Updates on Implementation of Executive Order Banning Muslims and Refugees

Breaking news from the AILA:

  • DOS Visa Office has confirmed with AILA that the majority of interview waiver cases still can receive interview waivers. Specifically, cases covered by INA 222(h)(1)(A) and (B) are still eligible –under age 14 and over 79 and previous issuance of the same visa within one year, respectively.
  • DOS Bureau of Consular Affairs issued a directive on January 27, 2017, announcing the provisional revocation of all valid nonimmigrant and immigrant visas of nationals of Iraq, Iran, Libya, Somalia, Sudan, Syria, and Yemen, with certain limited exceptions.

Read more: http://www.aila.org/infonet/practice-alert-travel-warning