Expedited removals: Who are they affecting, how can they be stopped, and what are the mistakes they are causing?

Expedited removal is one of the most frequently used terms these days when discussing immigration matters, and one of the most feared by those arrested by Immigration and Customs Enforcement (ICE). It is the process that allows authorities to quickly expel certain foreigners without first allowing them to have a hearing in an immigration court.

Approved in 1996 during Bill Clinton’s presidency, this procedure has allowed for the removal of immigrants who entered illegally and have been in the country for less than two years. Currently, it applies to foreigners who entered without inspection (by land or sea), who were never granted parole, and who were caught anywhere in the country without demonstrating legal entry during the two years prior to the immigration officer’s determination. Once an ICE or Border Patrol agent determines that a foreigner is subject to expedited removal, they will order the process to be activated.

According to data from the American Immigration Council, the use of expedited removal peaked in fiscal year 2013 (under President Barack Obama, nicknamed the Deporter-in-Chief by immigrant rights activists), when approximately 197,000 people were removed from the United States under this mechanism, representing 46% of the 432,000 expulsions that year.

During the Biden administration, between fiscal years 2020 and 2023, this practice decreased due to the implementation of Title 42 (the health policy implemented during the pandemic that allowed for the rapid expulsion of migrants without access to asylum). Since its end in May 2023, an average of 20,000 migrants have been deported each month through this mechanism.

Credible Fear Screening

Unlike other deportation orders, expedited removal orders typically cannot be appealed and carry a five-year bar on reentry in most cases. The only way to stop it is for the immigrant in question to express a fear of persecution or torture if returned to their home country. In this case, the agent must refer the individual to a credible fear interview, and if the asylum officer determines that the individual has successfully demonstrated this, the officer will revoke the expedited removal order, allowing the individual to apply for protection through regular removal proceedings.

When the immigrant cannot demonstrate a credible fear of return, the expedited removal order remains in place. The immigrant can challenge the decision by requesting a hearing before an immigration judge, who must review the case within 24 hours, or up to 7 days thereafter. The judge’s review is limited solely to assessing whether the individual’s fear is legitimate.

In some circumstances, the Department of Homeland Security (DHS) chooses to parole these individuals while their cases are pending, but the Trump administration’s heavy-handed approach has denied this option in most cases.

Erroneous deportations and no access to asylum

One of the main problems with expedited deportations is the lack of oversight. The American Immigration Council report warns that this mechanism allows ICE agents to act as both prosecutor and judge, issuing the final decision on the case. “Generally, the entire process consists of a single interview while the foreign national is detained, so there is little or no opportunity to consult with an attorney or gather evidence that could prevent deportation,” the report states.

In addition, this procedure increases the likelihood that a person who should not be subject to expedited deportation—such as a U.S. citizen, a permanent resident, or anyone in the country with a temporary visa or immigration protection—will be mistakenly deported, as already occurred in the high-profile case of Salvadoran Kilmar Abrego García. Likewise, migrants who would be eligible to request “relief from removal” (to argue their continued residence in the United States) before an immigration court may be unfairly deprived of this right.

The Trump administration has failed to provide a proper assessment of the fears of all migrants who have requested it; they have been ignored. This was reported by Human Rights Watch in the case of the 200 migrants deported to Costa Rica from Afghanistan, Armenia, Azerbaijan, China, Iran, Russia, Turkey, Uzbekistan, Vietnam, and Yemen. They were detained in “abusive” conditions and without the right to asylum.

Specifically, in recent weeks, there has been a wave of arrests outside the courts, after hundreds of cases were dismissed by immigration judges who accepted motions from government prosecutors. It is important to note that immigration judges report to the executive branch.

Absence of judicial review

Individuals subject to expedited removal generally do not have the right to challenge their deportation in federal court due to the jurisdictional divestment provisions of the 1996 law that created the process. Even if an immigration officer acted unlawfully in issuing an expedited removal order, a foreign national’s ability to challenge that decision is severely restricted.

Only permanent residents, refugees, or asylum seekers can file a lawsuit against the deportation order. In 2020, the Supreme Court upheld this law, finding that it did not violate habeas corpus rights or due process.

“Expedited removal has become a bedrock of the United States’ processing of noncitizens, particularly at our southern border. Procedural safeguards are necessary to ensure that the process does not result in the removal of people—particularly those seeking protection—contrary to United States law and international obligations,” the organization’s report concludes.

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