News & Insights

1. Expedited Removal (INA § 235(b); 8 U.S.C. § 1225(b))

What is expedited removal?

Expedited removal is a streamlined process for quickly removing noncitizens who are found inadmissible at the border or other points of entry. It is typically used in cases involving individuals without valid documents, with fraudulent documents, or who misrepresented material facts when seeking admission (INA §§ 212(a)(6), (a)(7)).

Key Features

• Decision-makers: A border inspector (Customs and Border Protection officer) and their supervisor decide whether to issue an expedited removal order.
• No independent review: There is no immigration judge involved, no access to legal counsel, and no formal hearing.
• Limited remedies: The primary options for avoiding removal are:
  • Claiming asylum: Individuals fearing persecution can express a desire to apply for asylum. This triggers a credible fear interview conducted by an asylum officer.
  • Demonstrating legal status: Individuals can prove they are lawful permanent residents (LPRs) or U.S. citizens.
• No appeal: Decisions are final, and judicial review is not available.
• Impact: If issued an expedited removal order, the individual is generally barred from reentering the U.S. for five years unless granted a waiver.

2. Regular Removal Proceedings (INA § 240; 8 U.S.C. § 1229a)

What is regular removal?

Regular removal involves a more comprehensive process to determine inadmissibility or deportability. It is used when the grounds for removal fall outside expedited removal or when a noncitizen is already inside the United States.

Key Features

• Hearing before a judge: Cases are reviewed by an immigration judge at the Executive Office for Immigration Review (EOIR).
• Legal representation: Noncitizens may hire an attorney (at their own expense) or represent themselves (pro se).
• Recorded proceedings: Hearings are digitally recorded, creating a record for potential appeals.
• Appeals: Decisions can be appealed to the Board of Immigration Appeals (BIA) and further reviewed by federal circuit courts.
• Burden of Proof: Noncitizens must prove they are admissible or eligible for relief from removal.

Potential Remedies

• Asylum or withholding of removal: Fear of persecution based on race, religion, nationality, political opinion, or social group.
• Adjustment of status: Applying for lawful permanent resident status (green card).
• Voluntary departure: Requesting permission to leave the U.S. without a removal order.
• Other relief: Waivers for inadmissibility or other discretionary forms of relief.

Other Related Processes

Administrative Removal (INA § 238(b); 8 U.S.C. § 1228(b))

• Used for noncitizens convicted of aggravated felonies.
• Removal is executed without a judge, following written notice.
• No appeal is available beyond limited procedural challenges.

Reinstatement of Removal (INA § 241(a)(5); 8 U.S.C. § 1231(a)(5))

• DHS can reinstate a prior removal order if a person reenters the U.S. unlawfully after removal.
• Individuals have limited options to contest reinstatement but may claim asylum.

Judicial Removal (INA § 238(c); 8 U.S.C. § 1228(c))

• Rarely used; allows removal proceedings to occur as part of federal criminal trials.

3. Key Differences Between Expedited and Regular Removal

Practical Advice for Noncitizens

• Request Withdrawal of Admission: In both expedited and regular removal, you can ask to voluntarily withdraw your application for admission. If granted, this avoids a formal removal order and its associated reentry bars.
• Claim Asylum if Eligible: If you fear persecution, assert your asylum claim early. This may provide protection and stop expedited removal proceedings.
• Understand Barriers: A final removal order often carries significant penalties, including reentry bars and limits on future immigration relief.

Authoritative Resources

• U.S. Citizenship and Immigration Services (USCIS) on Expedited Removal
• American Immigration Council: Overview of Removal Proceedings
• Legal Information Institute (Cornell) – INA § 240: Removal Proceedings