Expedited Removal: How Do You Avoid, Challenge or Overcome It?

At U.S. ports of entries (e.g airports, seaports and land border crossings), the U.S. Customs & Border Protection (CBP) has broad discretionary power to issue you an expedited removal order (Form I-860) when it denies your admission on certain grounds.

Avoiding, challenging or overcoming an expedited removal order is necessary if you want to return to the U.S. as a nonimmigrant or immigrant within 5 years in all cases, and within your lifetime, in some cases.

Consequences of an Expedited Removal Order

CBP officers are instructed to exercise restraint and consider, on a case-by-case basis, whether you qualify for any waivers, withdrawal of application for admission, or deferred inspection, instead of issue an expedited removal order.

Nevertheless, expedited removal orders are commonly issued at U.S. ports of entries when the CBP finds you inadmissible under INA section 212(a)(6)(C)(i)(fraud or willful misrepresentation of material fact to gain immigration benefits), section 212(a)(6)(C)(ii)(false claim to U.S. citizenship), and/or section 212(a)(7)(lack of proper visa or other travel documents).

An expedited removal order, in and of itself, carries a 5-year bar to reentering the U.S. This means you may not obtain an immigrant visa or nonimmigrant visa, or otherwise enter the U.S. for a minimum of 5 years from the date of expedited removal.

In addition, if you are found inadmissible under section 212(a)(6)(C)(i) (fraud or willful misrepresentation of material fact to gain immigration benefit), you are barred from the U.S. for a lifetime.

An inadmissibility finding under section 212(a)(6)(C)(ii)(false claim to U.S. citizenship) also triggers a lifetime ban.

How to Avoid an Expedited Removal Order 

You have very limited due process rights in an expedited removal proceeding before the CBP, unlike in a regular removal proceeding before the Immigration Court. You have no right to counsel during primary inspection, secondary inspection, or at any other time you request admission to the U.S.

After traveling on a long flight, waiting for hours to be interviewed in secondary inspection, or enduring intense interrogation with the same questions asked repeatedly, you could be tempted to do whatever it takes to just get out and go home. You might think the simplest thing to do is admit to the officer’s allegations, accept the expedited removal order, and perhaps challenge it later after you are sent back to your country or last destination.

But your best strategy is to avoid an expedited removal order to the fullest extent possible. Stay calm and respectful, but don’t make harmful, untrue admissions to leading questions just to please the officer.

Be prepared to present supporting documents, such as a return airline ticket, bank account statement, and property ownership if you seek entry as a visitor.

If you provided false documents or presented false testimony to the CBP to gain entry into the U.S., you may timely recant the misrepresentation during the interrogation – at the first opportunity – to avoid a section 212(a)(6)(C) finding.

Silence, non-cooperation or refusal to answer the CBP officer’s questions will not get you admitted to the U.S. But you also do not want to babble, lie, or volunteer negative information that makes you inadmissible to the U.S.

You may ask to withdraw your application for admission, especially if there is no obvious fraud, you have favorable factors, and the CBP officer gives you this option. A withdrawal allows you to return to your country to obtain the proper entry document, without having an expedited removal order in your record and a 5-year bar.

Be mindful about what you bring on your trip. The CBP has authority to search you, your luggage, and your electronic devices (e.g. cell phone, laptop and tablet). For example, job applications in your bag and text messages or emails on your phone related to seeking employment in the U.S. will raise red flags concerning the true purpose of your trip if you seek entry as a visitor. Birth certificates, identity documents and other immigration-related paperwork that are not necessary for temporary travel may cause the CBP to doubt whether you will timely depart the U.S.

At the very least, you should work to develop a strong factual record to later challenge or overcome the expedited removal order, if one is issued. You will be handed a Form I-867A & B, Record of Sworn Statement in Proceedings under Section 235(b)(1) of the Act.

Do not sign your sworn statement or initial the pages unless you have full opportunity to read it or have it read to you. Ask for an interpreter if necessary. Ask for corrections to be made. By signing the Form I-867A & B and Form I-831 (Continuation Page), you affirm that you have read your statement, your answers are true and correct, and the statement is a complete, true and correct record of your interrogation.

How to Challenge or Overcome an Expedited Removal Order

When you are unable to avoid an expedited removal order, you have two main options to challenge or overcome it:

1. Request Permission to Reapply for Readmission and,When Necessary, a Waiver of Inadmissibility

To overcome an expedited removal order and be eligible for a visa or admission to the U.S. before the 5-year bar expires, you must file a request for Consent to Reapply or a Form I-212, Application for Permission to Reapply for Admission into the United States after Deportation or Removal, and get it approved.

If the expedited removal order further states you are inadmissible under section 212(a)(6)(C)(i) (fraud or willful misrepresentation of material fact to gain immigration benefit), you must obtain an I-601 immigrant waiver under section 212(i), when seeking reentry as an immigrant, or a nonimmigrant waiver under section 212(d)(3), when seeking reentry as a nonimmigrant.

The lifetime ban under section 212(a)(6)(C)(ii)(false claim to U.S. citizenship) may be excused with a 212(d)(3) nonimmigrant waiver, but there is no immigrant waiver for it. There are, however, several exceptions and defenses. For example, if you reasonably believed, at the time of making such a representation, that you were a citizen because each of your natural parent is or was a citizen and you permanently resided in the U.S. prior to turning age 16.

If you receive a Form I-212 grant as well as any required waivers, you may then reenter the U.S., despite your inadmissibility, as long as you have the proper travel documents (e.g. valid passport and appropriate visa).

2. Request Reconsideration and Rescission of the Expedited Removal Order

An Immigration Judge may not review an expedited removal order. The federal appellate courts have also found an expedited removal order is not subject to judicial review, except to determine (1) whether the person is a U.S. citizen; (2) whether the person is a permanent resident or a refugee; and (3) whether the person was ordered removed under the expedited removal statute.

You may submit a written request for review to the CBP Field Office that issued the expedited removal order. You must include supporting documentary evidence showing why the expedited removal order was improper. The federal regulations state that motions to reopen and motions to reconsider must be filed with the Service within 30 days of the decision. Failure to file on time may be excused in the Service’s discretion where you demonstrate the delay was reasonable and beyond your control.

The CBP has discretionary authority to vacate the expedited removal order in its entirety or withdraw certain charges in the removal order, based on your documentary evidence and legal argument.  These type of motions are very rarely filed because it is very difficult to get CBP to lift an already issued removal order. In rare cases – when such a motion is granted – it spares the applicant from needing a waiver of inadmissibility.

DHS Traveler Redress Inquiry Program (DHS TRIP) Is Not a Good Option to Overcome an Expedited Removal Order

You may use the Department of Homeland Security Traveler Redress Inquiry Program (DHS TRIP) to submit inquiries or seek resolution regarding difficulties you experience during your  travel screening at airports or border crossings.

You  file a complaint or apply for redress through the DHS TRIP program, which routes your request to the appropriate office for review and adjudication. You will be assigned a record identifier or Redress Control Number.

The DHS TRIP program is for limited purposes, and challenging an expedited removal order is not one of them. Normally, the most you will get is a response stating you need to file a Form I-212 or Consent to Reapply request to be readmitted to the U.S. before the 5-year bar expires.

Consult an Experienced Immigration Attorney Soon After You are Issued an Expedited Removal Order

Generally, you have only 30 days from the date of the expedited removal order to request further review by the CBP. Otherwise, to be excused from the 5-year bar, you may file the request for Consent to Reapply or Form I-212 application at any time, in connection with your visa application. The same goes for I-601 immigrant waiver or 212(d)(3) nonimmigrant waiver requests to overcome a fraud or willful misrepresentation finding under section 212(a)(6)(C)(i).

If you are issued an expedited removal order, you should timely consult an experienced immigration attorney to discuss your options. You will also likely need an attorney to help you pursue a rescission of the expedited removal order or obtain the necessary waivers.

To learn more, read our other articles:

Expedited Removal: When Does It Apply and What Are the Consequences?

Expedited Removal: How Does the Process Work at the U.S. Port of Entry and What Are the Main Concerns? 

This article provides general information only. It is based on law, regulations and policy that are subject to change. Do not consider it as legal advice for any individual case or situation. Each legal case is different and case examples do not constitute a prediction or guarantee of success or failure in any other case. The sharing or receipt of this information does not create an attorney-client relationship.


Photo by: Dan4th Nicholas

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