New DHS Policy Makes It Easier to Remove Noncitizens from U.S. Without a Hearing

New policy says that noncitizens in the U.S. who cannot demonstrate that they've been present in the U.S. for more than two years can be put into expedited removal proceedings.

** LEGAL UPDATE **

In July 2019, the Department of Homeland Security (DHS) announced it would increase the scope of “expedited removal”—a process by which the U.S. government can deport (“remove”) noncitizens from the U.S. quickly, without a hearing.

Before last month, the government ordinarily exercised this authority only for people found within 100 miles of the border, who could not prove that they had been present in the U.S. for more than 14 days.

Under the new policy, which took effect immediately, noncitizens anywhere in the U.S. who cannot demonstrate that they have been present for more than two years can be subject to expedited removal.

Expedited removal cannot be applied to U.S. citizens, unaccompanied children, people lawfully admitted or paroled, or permanent residents (green card holders). Furthermore, people who claim a fear of returning to their home country must be given an interview with an asylum officer (known as a “credible fear interview”) to determine if they could qualify for asylum or other humanitarian protection before being removed. If they pass the credible fear interview, they must be given a hearing with an immigration judge and will not be subject to expedited removal.

What Precautions Should People Take in Light of the New Expedited Removal Policy?

Under federal law, the U.S. government has broad authority to exercise expedited removal and the burden is on the individual to demonstrate that he or she has been present for more than two years or is not otherwise subject to expedited removal.

If you are a U.S. citizen, you should carry proof of that status (for example, your passport or birth certificate).

If you are not a citizen, but are a green card holder or have been lawfully admitted to the U.S., you should carry proof of that (for example, your permanent resident card or I-94 card). If you lost your I-94 card or number you can obtain proof of legal entry from the Customs and Border Patrol (CBP) website.

If you are a noncitizen who was not lawfully admitted or paroled into the U.S., but you have been present for more than two years, you should carry proof of your continuance presence in the United States. This might include leases, school records, tax returns, birth certificates of children born in the U.S., receipts, employment records or pay stubs, bank account statements, or bills in your name with dates on them. You should also keep a copy of these documents in a safe place at home, and let a trusted friend or family know where they are, in case you are apprehended by Immigration and Customs Enforcement (ICE).

If you are a noncitizen who has not been lawfully admitted into the U.S. and you have been present for less than two years, you will likely be subject to expedited removal under the new policy. If you are apprehended by ICE and fear return to your home country, make sure to let officials know this, and request a credible fear interview with an asylum officer. Finally, if you have any type of immigration petition or application pending, keep the receipt or proof with you at all times.

It's important to remember that if you are not lawfully present in the U.S., you need not volunteer this information to ICE officers. Always first ask whether you are permitted to leave, and then walk away calmly if possible. If ICE already knows that you are a noncitizen and has put you under arrest, you will want to demonstrate that you were lawfully admitted or present in the U.S. for the past two years, so as to avoid being subject to expedited removal.

Will the New Expedited Removal Policy Be Challenged in Court?

This month, the ACLU and the American Immigration Council filed a federal lawsuit challenging the expansion of expedited removal as a violation of due process rights and the Administrative Procedures Act. There is still no decision in the case, and expanded expedited removal currently remains in place.

Effective Date: 07/23/2019