On July 23, 2019, the Immigration Customs Enforcement Agency (“ICE”) expanded the scope of its “fast track” deportations, ICE’s expedited removal program, to the full scope permitted by statute. After July 23, anyone arrested anywhere in the United States who is inadmissible under INA § 212(a)(6)(C) or (7), has not been admitted or paroled at a port of entry, and cannot prove continuous physical presence in the country for at least two years may be subject to expedited removal. Prior to the rule, expedited removal was limited to a 100-mile zone from the border; to those who arrived by sea; and to those who had been in the U.S. for 14 days or fewer.
In a court case, Make the Road NY v. McAleenan, No. 1:19-cv-02369 (D.D.C.), in which the American Civil Liberties Union is challenging the new rule, ICE’s submitted its internal guidance memo on how it will actually implement the rule, (unless the Court blocks it)
Who, When and Where Will the New Program Apply
According to the guidance, ICE may begin subjecting noncitizens to expanded expedited removal “on or about September 1, 2019.”
The guidance further states that DHS anticipates that expanded expedited removal “will primarily be used by ICE in the Criminal Alien Program and worksite enforcement contexts.” In other words, the program is intended to be used in conjunction with “workplace raids” and can occur anywhere in the country.
It will be up to the individual ICE officer whether or not to designate an individual to expedited removal. The criteria for expedited removal (according to this guidance) are aliens who:
- are not already subject to an expedited removal designation;
- are encountered anywhere in the United States;
- have not been admitted or paroled into the United States;
- are determined to be inadmissible under sections 212(a)(6)(C) or (a)(7) of the INA, 8U.S.C. §§ ll82(a)(6)(C) or l182(a) (7); and
- have not affirmatively shown, to the satisfaction of an immigration officer, that they have been physically present in the United States continuously for the two-year period immediately preceding the date of the determination of inadmissibility.
If the guidance is met, it will be up to the individual ICE officer to decide whether to “to apply expedited removal in individual cases, or whether to instead permit aliens to depart voluntarily or withdraw their applications for admission, or to place aliens in removal proceedings before an immigration judge.”
- Officers should not revisit a determination made prior to July 23, 2019 to place an alien in section 240 removal proceedings,
- The officer may consider whether an alien’s case presents mental competency issues,
- Whether the alien is the sole caregiver of a U.S. citizen child(ren) or appears eligible for relief available in section 240 removal proceedings,
- The duration of the alien’s presence in the United States and nature of his or her ties to the country,
- Whether ICE seeks to charge additional in admissibility grounds (e.g., due to criminal history).
How to Protect Oneself
Someone detained or questioned by ICE is entitled to confer with an attorney. The guidance states that the individual has the “affirmative burden” to convince the ICE officer that he is not subject to immediate deportation or has a sufficient continuous presence in the United States to avoid immediate deportation. It lists the following examples of what evidence an individual can present to show long term presence in the United States, so as to avoid expedited removal.
- evidence establishing the place, date, and manner of entry into the United States,
- leases, deeds, licenses,
- bills, receipts, letters, birth records,
- church records, school records, employment records, evidence of prior law enforcement encounters or tax payments,
- and/or the alien’s oral statements.
The memo states that if an alien is unable to personally provide such documentation,” but claims to have access to such evidence, the alien shall be permitted a brief but reasonable opportunity to obtain it or communicate with a third party to obtain such evidence.”
It is physically cumbersome, and may be unwise, for someone to carry around the originals of these documents. However, aliens with green cards should carry them at all times.
Aliens without green cards, who have active immigration cases, and aliens who fear they may be caught up in raids, may wish to carry photographs of such records in their phones and create a file and an emergency contact who can promptly bring it to the ICE agent
“Visa overstay” aliens who wish to have proof of a continuous residence in the United States for two years can use their “I-94” as of their entry into the United States, or can obtain a travel record from https://i94.cbp.dhs.gov/I94/#/home.
Claim of Citizenship and Lawful Permanent Residence Status
There have been several well publicized cases of ICE detaining and trying to deport as unlawful aliens, people who were actually U.S. citizens. Those who have been issued lawful permanent resident status or visas should do their best to always carry their green cards and visa records (or copies on their phone). U.S. citizens do not typically carry birth certificates, passports, or official certificates of citizenship with them.
ICE’s Guidance refers to, but does not spell out the standards that ICE is to follow when an applicant for admission who is subject to expedited removal pursuant to section 235(b)(1) of the Act claims to have been lawfully admitted for permanent residence, or claims to be a U.S. citizen.
The immigration officer shall attempt to verify the alien’s claim. Such verification shall include a check of all available Service data systems and any other means available to the officer.
- If an “alien” whose claim to lawful permanent resident, refugee, asylee status, or U.S. citizen status cannot be verified, he will be advised of the penalties for perjury, and will be placed under oath or allowed to make a declaration as permitted under 28 U.S.C. 1746, concerning his or her lawful admission for permanent residence, admission as a refugee under section 207 of the Act, grant of asylum status under section 208 of the Act, or claim to U.S. citizenship. A written statement shall be taken from the alien in the alien’s own language and hand writing, stating that he or she declares, certifies, verifies, or states that the claim is true and correct.
- The immigration officer shall issue an expedited order of removal Act and refer the alien to the immigration judge for review of the order in accordance.
- The person shall be detained pending review of the expedited removal order under this section.
- Parole of such person, may be permitted only when the Attorney General determines, in the exercise of discretion, that parole is required to meet a medical emergency or is necessary for a legitimate law enforcement objective.
However, those procedures were designed for people seeking admission into the United States, a situation in which people almost always carry passports, visas and green cards. American citizenship, particularly for those who are born in the United States, is not necessarily listed in DHS data bases. In other cases, individuals may acquire citizenship through a parent who becomes a U.S. citizen or who were born abroad to U.S. citizens. Although their citizenship exists as a matter of law, it may require a formal USCIS determination before they are formally issued certificates of citizenship. Therefore, the procedures used at the borders to determine U.S. citizenship could lead to improper detention of a U.S. citizen who can not immediately produce a passport or other proof of citizenship.
In states along the Southern border, some citizens (particularly those who are Hispanic or may be mistaken for Hispanic), now carry their passports with them regularly. Citizens who work in businesses which may seem vulnerable to raids, may wish to obtain passports and carry, at a minimum, an image of the identification pages on their phone.
The internal guidance memo for expedited removal glides over the potential for true U.S. citizens to be detained. Instead, it emphasizes the criminal penalties which can be lodged against someone who falsely claims citizenship or other status. Those caught up in a raid may be tempted to claim citizenship or proffer false papers. Doing so can create permanent immigration bars and legal problems well beyond any expedited removal process.
If any alien asserts a claim for asylum, the ICE officer is to follow the standard procedures for such claims. Therefore, according to the guidance “any alien who is processed for expedited removal, and who indicates an intention to apply for asylum or expresses a fear of persecution or torture or a fear of return to his or her country, will be referred for an interview by an asylum officer who will determine whether the alien has a credible fear of persecution or torture. If the alien is found to have a credible fear, he or she will be referred for further consideration of his or her protection claims in accordance with relevant processes already in place.”
However, asylum claims are becoming increasingly difficult to present and prove. The Attorney General recently held that a person who has a credible fear of retaliation because his family has been targeted for violence or retribution does not state an asylum claim. Those who feel that they have genuine reason to feel that they will be subject to state, or gang violence upon return, should seek an attorney to assist them in presenting the strongest case possible.
For a complete copy of the new regulations or the policy memo, call Deborah I. Hollander, Esq. at (609) 737-6885.