In February 2017, former Department of Homeland Security (DHS) Secretary John Kelly issued a memorandum stating that expedited removals of undocumented immigrants would be applied throughout the United States. Immigration enforcement agencies such as Immigration and Customs Enforcement (ICE) and Customs and Border Protection (CBP) now have expanded powers to immediately detain and deport any apprehended immigrant who was not inspected by an immigration officer (or who used fake documents or made false representations to gain entry) 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.
These individuals (also known as illegal entrants) may limited access to request further immigration relief in court. For more information about this recent development, see "Expedited Removal No Longer Just a Border Procedure, Says DHS Memo."
With the expansion of expedited removal, many immigrants who entered the U.S. illegally are concerned about proving that they have lived in the U.S. for two years or more. Many attorneys and legal advocates are advising that illegal entrants carry paperwork to prove continuous presence in the United States, but there are pros and cons to doing so. Read on for more information about this.
Prior to the Trump administration, only illegal entrants apprehended at airports and within 100 of the U.S border were subject to expedited removal. Now, ICE and CBP are empowered to use expedited removal anywhere within the United States.
Expedited removal is a preferred tool for immigration enforcement agencies because it can deport individuals within days or weeks rather than waiting years in the immigration courts, which face huge backlogs and administrative delays.
To make a long story short, expedited removal is cheaper and quicker than subjecting immigrants to a lengthy detention and using court resources. The Immigration and Nationality Act (I.N.A.) states that the government may use expedited removal only if the immigrant “has not affirmatively shown, to the satisfaction of an immigration officer, that [he or she] has been physically present in the United States continuously for the 2-year period immediately prior to the date of the determination of inadmissibility.” (See 8 U.S.C. § 1225(b)(1)(A)(iii)(II); 8 C.F.R. § 235.3(b)(1)(ii).)
As a result, many immigration attorneys have recommended that illegal entrants gather information to show that they have lived in the U.S. for two years or more in order to preserve their rights to see an immigration judge and avoid being immediately returned to their home country. This is good advice, but immigrants should be choosy about what types of documents they carry with them or give to immigration officials.
When you are referred to immigration court, the government must prove that you are not lawfully present in the U.S., which country of origin you are from, and the date and manner by which you entered the United States.
Some of this information will be easy for the government to prove. For example, if you applied for a visa and gave the U.S. your passport information, it will be able to easily prove your national origin. But it is not up to you to make the government's job easier or to shift the burden of proof onto you!
Therefore, it is good practice not to carry information showing that you are in the U.S. unlawfully or information about your country of origin. For example, a marriage certificate or a birth certificate for your child issued in the U.S. may seem like great proof that you have been in the United States for longer than two years. However, if it lists your place of birth, you may be inadvertently giving additional information to immigration authorities, of a sort that can be used against you.
Similarly, if you worked in the U.S. without authorization, information such as pay stubs can be used in criminal prosecutions, particularly if you worked using a false Social Security Number.
DHS and the immigration courts deal with continuous presence issues in other contexts (such as applications for Cancellation of Removal or Deferred Action for Childhood Arrivals (DACA)). A good rule of thumb is to use these types of documents to prove continuous presence for the purpose of avoiding expedited removal.
Examples of excellent documents to prove length of residency in the U.S. include:
All illegal entrants should contact an immigration attorney with experience with expedited removal procedures to discuss whether it makes sense to carry proof of continuous presence given your individual situation.