Expedited Removals
Expedited Removals are a deportation procedure established by the Illegal Immigration Reform and Immigrant Responbility Act of 1996 (IIRIRA). An expedited removal is a procedure that permits U.S. Customs and Border Protection (CBP), a major component of the Department of Homeland Security (DHS), to promptly deport non-citizens who are undocumented and/or have commit fraud. Expedited removals were established by IIRIRA as an attempt to streamline the removal process for immigrants who entered the United States illegally. Since 1996, the expedited removal process has evolved to apply to a broader range of non-citizens and has been increasingly applied over the years.
Differences Between Expedited Removals and Regular Removals
Regular removal hearings, as established by IIRIRA, are held in front of a judge and can take 2 to 3 years to reach a final decision. Wait times for hearings are growing longer—the average case in 2022 takes five years to resolve due to backlog. This is because during a regular removal, an immigrant has the time to make a complete case against their deportation. The more testimonies and evidence presented, the longer a case will take a judge to deliberate. When the final verdict is decided, regular removals can be challenged and canceled in the federal courts of appeals.
By contrast, expedited removals quicken the deportation process by leaving the hearing process to the immigration officer who arrested the immigrant. Immigrants do not appear in front of a judge and there is no formal court hearing. This means that the individual has to prove they are wrongly being convicted to the officer who detained them. Although the immigrant can consult an attorney, this is rare in most cases due to expedited pace of the hearing, which can take as little as 2 weeks.
Outcomes of Expedited Removals
When an immigrant is deported upon arrival in the U.S. through the expedited removal process, they typically receive a five-year ban from reentry into the country. This ban is extended to ten years for immigrants who left the United States while having an outstanding order of removal. A non-citizen can get banned forever from returning to the United States if they are removed quickly on the basis of fraudulent entry or fraud.
To cancel a removal, the immigrant would issue an appeal to the federal court of appeals to dispute their removal. However, immigrants cannot appeal an expedited removal. The power of cancellation is limited to the Homeland Security officer supervising the port of entry at which the immigrant was originally apprehended.
Expedited Removal Through the Years
The expedited removal process was originally limited to non-citizens intending to illegally arrive in the U.S. who were removed at ports of entry. By 2002, the policy broadened to qualify more migrants for expedited removals. The Bush Administration extended expedited removals to include immigrants who had illegally traveled by water to get to the United States. Alongside the expansion, the Immigration and Naturalization Service (INS) introduced the concept of “credible fear” to ensure that immigrants seeking asylum were not wrongly deported through expedited deportations. If an asylum seeker proves during a credible fear interview that there is a credible danger of returning to their home country, then they will not get deported.
In 2004, the Bush Administration expanded the policy to include illegal immigrants who traveled by sea and were encountered within 100 miles of the United States borders and were encountered within 14 days of their arrival. In general, the years following the September 11th attacks saw trends of tightened immigration policy—expedited removals being one of the policies that were expanded to apply to more immigrants. The cultural context of the United States at any given time influences restrictions of the expedited removal policy.
In addition to cultural context, a given president’s political agenda also influences the conditions of the expedited removal process. For example, President Trump’s agenda included strengthening and enforcing stronger illegal immigration laws. In 2019, under the Trump Administration the DHS expanded expedited removals to include immigrants who did not arrive by sea and are encountered within 100 miles of the United States border within 14 days of their arrival. By 2022, the Biden Administration withdrew Trump’s 2019 expansion of expedited removals.
Arguments in Favor of Expedited Removals
Proponents of expedited removals argue that the process accelerates the deportation process. The DHS estimated that the regular removal proceeding for noncitizens remains pending for more than two years. This has led to a backlog of nearly 5.2 million unresolved immigration cases that still require hearings. Backlog prevents immigrants from getting their cases resolved and requires the U.S. Citizenship and Immigration Services to hire more staffers—another process that includes lengthy training and more funding. Unlike regular hearings, the expedited removal process takes only two to three weeks. Every year following 1997, the amount of removals has increased; from 1996 to 1997 alone the amount of removals increased from 69,680 to 114,432. This data suggests that since the implementation of expedited removals, deportation proceedings have become more effective and quick.
Recently, DHS and advocates of expedited removals have cited the Coronavirus crisis in the states as a justification for expedited removals. The DHS has cited the process as a “safe and orderly” way to deal with immigration processing whilst also keeping Americans’ safety a priority during spikes of COVID-19. Governor of Texas Greg Abbott has expressed support of expedited removals, stating that “the dramatic rise in unlawful border crossings has also led to a dramatic rise in COVID-19 cases among unlawful migrants,” directly impacting the health and safety of Texans.
Arguments Against Expedited Removals
Those against the expedited removal process believe that migrants should have a right to due process and that the expedited removal process undermines these rights. Due process rights include a right to a hearing and ample opportunity to be heard, or the opportunity to defend yourself fairly and reasonably when convicted. The Supreme Court has held that those who have physically entered the United States, even illegally, should have their due process rights recognized. Yet, many argue that under the expedited removal process immigrants have their due process rights deprived because they are not granted a traditional hearing before a judge. Instead, they are subject to detention and deportation in an expedited hearing before an immigration officer.
In addition to the lack of opportunity to defend themselves, many of those against expedited removals have cited family detention centers, where families facing expedited removals are held, as places that incite physical and emotional trauma. A 2016 study found that 83% of adults and 85.7% of teenagers in a given detention center showed symptoms of depression and anxiety—many people view detention centers as a result of the expedited removal processes as a violation of human rights.