Given the magnitude and ramifications of the government’s imminent expansion of expedited removal, the lack of media coverage is confounding. In any case, readers should be aware that the new criteria is set to be applied any day now. In fact, according to an internal ICE memo dated July 24, implementation was set begin at the beginning of September.
As discussed in an earlier blog, expedited removal is a mechanism by which the government is able to summarily deport someone without formally placing an individual into removal proceedings before an immigration judge. Under the law, expedited removal can only be applied against non citizens who 1) either lack valid entry documents, commit fraud or misrepresentation to obtain admission, or who falsely claim citizenship; and 2) who are encountered within 100 miles of the border who have not been physically present in the US continuously for 14 days. However, under the expansion, expedited removal can now be applied to potentially any non-citizen anywhere within the US who cannot prove continuous physical presence for at least two years. (Importantly, the individual must still be charged as inadmissible under sections 212(a)(6)(C) or (a)(7)-pertaining to lack of valid entry documents or fraud.).
According to the memo, it is anticipated that the new guidelines will be applied largely in the Criminal Alien Program (“CAP”) and worksite enforcement contexts. Moreover, while an individual may present a prima facie case allowing for expedited removal, ICE officers still retain a large degree of discretion to not apply it. In fact, there are a number of alternatives that an ICE officer may feel are more appropriate, including but not limited to allowing the person to depart voluntarily; allowing the person to withdraw his/her application for admission; or placing the individual in regular removal proceedings before a judge. Under the memo, some relevant factors that an officer may consider include a person’s mental competency; whether the person is the sole caregiver of a US Citizen child or children; whether a person qualifies for relief in immigration court; the duration of a person’s presence in the US and the nature of his or her ties to the country; and whether additional charging grounds are contemplated.
That being said, non US Citizens would be well advised to consider carrying proof of their status, if lawfully present. Technically, lawful permanent residents 18 and older are actually required to carry their green cards with them at all times under INA 264(e). Those who are not lawfully present are especially vulnerable to abuse under the July 24 designation and should carry evidence of their presence on them. Although this sounds incredibly inconvenient and onerous, the memo indicates that the noncitizen bears an affirmative burden to demonstrate to an officer’s satisfaction that he/she has been physically present in the US continuously for two years with evidence establishing place, date, and manner of entry and continuity of presence since since that time.
Barring a capricious change of heart by the Administration or litigation that blocks the expansion, this is happening. Non US citizens need to be prepared and understand that they may not only be unfairly accused of entering the country illegally, but also have to rebut such accusations with documentary proof of continuous physical presence.