In most cases, a foreign-born person who U.S. government officials consider deportable is not sent away from the U.S. immediately, but first allowed a full hearing before an immigration judge. However, there are some circumstances under which the Department of Homeland Security (DHS) can deport a person who has no immigration status, without giving that person any opportunity to see an immigration judge.
This can happen within a matter of hours or days, depending partly on where the person is met or found. The process, referred to as “expedited removal,” applies only to a small group of people encountered by immigration authorities, under the circumstances described below.
Only “arriving aliens” (people who are attempting to enter the United States at a border or other lawful entry point and people who recently entered the United States unlawfully) may be placed into expedited removal proceedings. Before issuing an expedited removal order, an immigration officer must determine that the person is inadmissible to the United States because he or she either:
While many people are inadmissible for one of these reasons, most of them will not be subject to expedited removal. Specifically, the government may initiate such proceedings in the circumstances described in the following.
Expedited removal is most commonly used at designated ports of entry, including airports, sea ports, and land border crossings. If you are seeking admission to the United States at a port of entry and the border agent determines that you do not have valid documents or that you have lied about anything related to your admissibility, the agent will initiate expedited removal proceedings and you will be deported as soon as possible.
Foreign-born persons who arrive in the U.S. by sea, and not at a designated point of entry (for example, by raft) or who are interdicted at sea and brought to the United States may be subject to expedited removal for up to two years after arrival. Whether they are placed in ordinary proceedings or expedited proceedings depends on a number of factors and is at the discretion of the Department of Homeland Security.
Any undocumented immigrant encountered within 100 miles of the U.S. border with either Mexico or Canada may be placed into expedited removal proceedings unless the person can demonstrate to immigration authorities that he or she has been continuously present in the United States for at least 14 days preceding the encounter.
Various exceptions exist to the rules described above, as detailed below. A person whom U.S. government officials encounter in one of the situations discussed above may be sent to immigration court instead of expedited removal proceedings depending on the person’s nationality, claim to lawful status, or fear of returning to his or her home country.
If you are facing the possibility of expedited removal, but you tell the immigration officer that you fear persecution or torture in your native country and intend to seek asylum in the United States, you will not be removed immediately. Instead, you will be detained and given the opportunity to speak with an asylum officer who will determine whether you have a “credible fear” of returning to your home country. See Nolo’s article “What Happens at a Credible Fear Interview” for more information on this process.
As a matter of policy, the Department of Homeland Security will typically place Mexican and Canadian nationals who are found within 100 miles of the U.S. border in regular proceedings before an Immigration Judge rather than in expedited removal proceedings. This exception applies only to people who have already entered the United States without inspection, not to those arriving at the border.
Mexican and Canadian nationals with a history of criminal or immigration violations may nevertheless be placed into expedited removal proceedings.
The U.S. government may not place Cuban nationals into expedited removal proceedings if they arrive by aircraft or by sea other than at a designated port of entry. The Department of Homeland Security does not, as a matter of policy, place other Cuban nationals into expedited removal proceedings, either.
A status claimant is anyone who asserts a right to be in the United States. Anyone who states to a border agent under oath that he or she is a U.S. citizen or is returning to the country after previously having been admitted as a lawful permanent resident, asylee, or refugee will have an opportunity to see an Immigration Judge. Lying about your status, however, can result in a later finding that you are inadmissible, or even a lifetime bar to U.S. admission.
If you are seeking admission to the United States at a designated port of entry and the immigration officer determines that you should be returned to your country via expedited removal, the officer has discretion to allow you to withdraw your application for admission. This allows you to return voluntarily to your native country rather than having an order of removal put on your record.
There will be a record of this encounter, which may impact any future applications for U.S. admission. But a voluntary return offers some important benefits, in that it does not carry the serious legal consequences of a removal order, which would bar your return to the U.S. for many years (as described next).
If you are issued an expedited removal order, the consequences are the same as if you had been issued an order of removal in ordinary immigration court proceedings. See Nolo’s article “How Long After Deportation Must I Wait Before Returning to the U.S.?” for an explanation of these consequences.
There is no way to appeal an expedited removal order. However, if you believe your expedited removal order is improper (that is, the government was mistaken as to the legal basis for placing you in expedited removal proceedings), an immigration attorney may be able to help you persuade the Department of Homeland Security to reconsider the order.