Expedited Removal No Longer Just a Border Procedure, Says DHS Memo

The Department of Homeland Security recently announced the expansion of "expedited removal." This means that immigrants who entered the U.S. unlawfully less than two years ago can now be immediately deported without a court hearing.


President Donald Trump has quickly moved toward fulfilling his campaign promise to crack down on border security and illegal immigration in the United States. Recent changes in immigration policy urging the construction of a U.S.-Mexico border wall and the implementation of a travel ban have received the most media attention. However, an upcoming policy change regarding how certain individuals may be deported (or "removed") from the U.S. will negatively affect thousands of undocumented immigrants in the near future.

On January 25, 2017, President Trump signed an Executive Order entitled "Border Security and Immigration Enforcement Improvements," instructing the Secretary of the Department of Homeland Security (DHS) to apply expedited removal to the maximum extent of the law. Expedited removal is a procedure by which DHS can deport an undocumented person without giving him or her a chance to defend against deportation in immigration court. In some cases, a person subject to expedited removal may be arrested by Immigration and Customs Enforcement (ICE) and deported on the very same day.

DHS previously limited the application of expedited removal to immigrants arriving at the U.S. border who made misrepresentations to an immigration officer, used false documents (such a fake U.S. passport), or lacked valid entry documents (such as a U.S. visa). For those who crossed the border illegally and were not inspected by an immigration officer, DHS reserved expedited removal for those immigrants who: 1) were apprehended within 100 miles of an international land border, and 2) crossed the border 14 or less days prior to their arrest by ICE.

On February 20, 2017, DHS Security John Kelly published a memo stating that DHS would expand expedited removal to any apprehended immigrant who was not inspected by an immigration officer at the U.S. border and who cannot prove that he or she has been continuously present in the U.S. for more than two years.

This is the fullest extent to which expedited removal may possibly be used under the law at 8 U.S.C. §§ 1225(b)(1)(A)(i), (iii). This policy change will become effective once it is published in the Federal Register.

The Kelly memo represents a drastic expansion of expedited removal. A removal policy once reserved for immigrants in locations close to the border who had unlawfully remained in the U.S for less than two weeks will now apply to individuals who have been living in any location in the U.S. for up to two years, many of whom may have young U.S. citizen children.

Why does this matter? There are several benefits to having a removal hearing in immigration court. For example:

  • You have the right to be represented by an attorney (at your own expense).
  • You may apply for any relief from removal for which you may be eligible, such as asylum
  • You have time to prepare for the possibility of being deported while you await your court hearing, and
  • You may appeal a negative decision to the Board of Immigration Appeals (BIA) and the federal courts.

While we are still awaiting the publication of this rule and learning more about how it will be implemented by DHS and ICE, immigrants who entered the U.S. unlawfully may want to contact a reputable immigration attorney to discuss their options. For example, if you fear persecution if you are deported to your home country, you may want to consider applying for asylum affirmatively, without waiting to be arrested and placed in removal proceedings.

Additionally, affected persons who have lived in the U.S. for more than two years may want to consider gathering proof of U.S. residence to guard against being order of expedited removal. However, keep in mind that any documents provided to an immigration official showing a person's foreign nationality or any illegal activity may be used against him or her in an immigration proceeding. School and medical records and receipts for purchases made at U.S. stores can be good proof of your U.S. residence without tipping off immigration authorities as to other possible violations such as working using a fake Social Security number or driving without a license.

Stay tuned to Nolo for updated articles about this topic and other immigration policy changes made by the Trump administration.

Effective Date: February 20, 2017