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.
The process, referred to as “expedited removal,” can happen within a matter of hours or days, and has been used with increasing frequency under the Trump Administration. By law, it applies to individuals encountered by immigration authorities under the circumstances described below.
Only “arriving aliens” (people 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 based on having either:
While many people are inadmissible for one of these reasons, not all of them will be subject to expedited removal. Specifically, the government may initiate such proceedings in the circumstances described below:
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 DHS.
Under longstanding U.S. law, expedited removal procedures were applied only to people found less than 100 miles from the border from either Mexico or Canada and who had illegally entered within 14 days or less. However, expedited removal was greatly expanded by the Trump Administration, which ordered that:
This is the subject of ongoing litigation, however. In September 2019, a federal court responded to a challenge of this expansion of expedited removal by granting a motion for a preliminary injunction and blocking DHS from implementing the new rules until the litigation is completed.
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 can be sent to immigration court instead of to 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, the officer should not remove you immediately. Instead, you could 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 What Happens at a Credible Fear Interview for more information on this process.
Unfortunately, there are numerous reports of immigration officers ignoring such requests or pressuring people to withdraw their asylum claim. What's more, new and developing U.S. policies such as that known as "Wait in Mexico" affect whether you will be allowed to pursue your asylum claim within the United States.
As a matter of policy, DHS often places Mexican and Canadian nationals who have clean criminal and immigration records 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. However, it is discretionary and cannot be counted on.
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 made of this encounter, which could impact any future applications you make for U.S. admission. But a voluntary return offers important benefits, in that it does not carry the serious legal consequences of a removal order, which would bar return to the U.S. for many years (as described next).
If you are issued an expedited removal order, the typical consequence is a five-year ban from reentry (for first time offenders). However, you could be given a ten-year, 20-year, or permanent ban, based on circumstance. See How Long After Deportation Must I Wait Before Returning to the U.S.? for more on 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 U.S. government was mistaken as to the legal basis for placing you in expedited removal proceedings), an immigration attorney might be able to help you persuade DHS to reopen your case and reconsider the order.