You may face expedited removal from the U.S. if the Customs & Border Protection (CBP) finds you inadmissible and denies your entry, usually at an airport, seaport, or land border checkpoint. The Form I-860, Notice and Order of Expedited Removal, requires you leave the U.S. immediately and brings serious consequences, such as a visa cancellation with prejudice and minimum 5-year bar to reentry.
On What Grounds May Expedited Removal Be Ordered?
CBP officers must verify whether you are admissible to the U.S. before they let you into the U.S. The CBP not only checks your travel documents, but may also interview you extensively to confirm the true purpose of your trip. The CBP may also check its records to determine whether you have a criminal history, immigration violation or other grounds that make you inadmissible.
Your mere possession of a travel document that is valid on its face does not guarantee your entry into the U.S. Section 235(b)(1) of the Immigration & Nationality Act (INA) permits the CBP to issue an expedited removal order if it finds you are inadmissible under section 212(a)(6)(C) or 212(a)(7). The inadmissibility grounds for an expedited removal order are:
1. Section 212(a)(6)(C)(i) (Misrepresentation), i.e. by fraud or wilful misrepresentation of a material fact, you seek to procure (or have sought to procure or have procured) a visa, other documentation, admission into the U.S. or other immigration benefit.
2. Section 212(a)(6)(C)(ii) (False Claim to U.S. Citizenship), i.e. you falsely represent or have falsely represented yourself to be a U.S. citizen for any purpose or benefit under immigration law or federal or state law.
3. Section 212(a)(7)(A)(i)(I), (Immigrant Without Proper Visa or Travel Document), i.e. you are an immigrant who, at the time of application for admission, is not in possession of a valid unexpired immigrant visa, reentry permit, border crossing identification card, or other valid entry document required by immigration law, and a valid unexpired passport, or other suitable travel document, or document of identity and nationality if such document is required by the regulations.
4. Section 212(a)(7)(A)(i)(II) (Immigrant With Improperly Issued Visa), i.e. you are an immigrant who, at the time of application for admission, has a visa that was not issued in compliance with immigration law.
5. Section 212(a)(7)(B)(i)(I) (Nonimmigrant Without Valid Passport), i.e. you are a nonimmigrant who, at the time of application for admission, is not in possession of a passport valid for a minimum of six months from the date of the expiration of your period of admission or period of authorized stay.
6. Section 212(a)(7)(B)(i)(II)(Nonimmigrant Without Proper Visa or Travel Document), i.e. you are a nonimmigrant, who at the time of application for admission, does not have a valid nonimmigrant visa or border crossing identification card.
Who is Subject to Expedited Removal?
Expedited removal applies to certain groups or classes, including:
1. Arriving aliens at designated port of entry (e.g. airport, seaport, or land border crossing)
As of April 1, 1997, all “arriving aliens” who seek admission to the U.S. or transit through the U.S. at a designated port of entry may be issued an expedited removal order upon inspection, if CBP finds they are inadmissible under sections 212(a)(6)(C) and/or 212(a)(7).
Currently, expedited removal does not apply to Cuban nationals who arrive at a U.S. port of entry by aircraft.
The expedited removal process may not be used at pre-clearance or pre-inspection units. If the CBP wishes to proceed with expedited removal, it must defer action until the vessel (e.g. aircraft) has arrived in the U.S.
2. Certain other aliens who are already in the U.S.
Under the April 1, 1997 law, expedited removal also applies to noncitizens who have not been admitted or paroled into the U.S. following inspection by an immigration officer at a designated port of entry, and who have not been physically present in the U.S. continuously for the 2-year period prior to the date of determination of inadmissibility.
3. Foreign nationals arriving by sea, but not at designated port of entry
As of November 2002, foreign nationals who arrive in the U.S. by sea, and not at a designated port of entry, or who are intercepted at sea and brought to the U.S., may be subject to expedited removal if they were not admitted or paroled into the U.S. and have not been continuously present in the U.S. for at least two years.
Currently, expedited removal does not apply to Cuban nationals, crewmen or stowaways. [UPDATE: On January 12, 2017, the Obama Administration announced the U.S. is eliminating this exemption. Expedited removal proceedings may now be initiated against Cubans.]
4. Undocumented immigrants within 100 miles of a U.S. border
As of August 2004, expedited removal may apply to noncitizens who are encountered within 100 miles of any U.S. land or sea border and who entered the U.S. without inspection less than 14 days before the time they are encountered.
As a matter of discretion, CBP generally applies such expedited removals against third-country nationals not from Mexico or Canada, or Mexican or Canadian nationals with criminal histories or immigration violations.
What are the Consequences of an Expedited Removal Order?
By itself, an expedited removal order carries a 5-year to reentering the U.S., pursuant to INA 212(a)(9)(A)(i). 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.
Avoid an Expedited Removal Order or Develop a Strong Basis to Challenge or Overcome It
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.
Your best strategy is to avoid an expedited removal order whenever possible. At the very least, work to develop a strong factual record to later challenge it through a request for review with the CBP or to support a Form I-212, Application for Permission to Reapply for Admission into the United States after Deportation or Removal, 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.
What are the Remedies for Overcoming an Expedited Removal Order?
Generally, you should aim to file a motion to reconsider or reopen the Expedited Removal Order and inadmissibility finding with CBP within 30 days from the date of the expedited removal order. The reason is that while there is no formal process for challenging CBP’s decision, lawyers often cite to 8 CFR 103.5, which includes the 30-day timeframe. A late filing does not strictly prohibit a review, but it would involve less emphasis on the federal regulation.
Otherwise, to be excused from the 5-year bar, you may file a Request for Consent to Reapply for Admission or Form I-212 application at any time, in connection with a nonimmigrant visa or immigrant 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). While persons charged with (6)(C)(ii) (false claim to U.S. citizenship) may apply for a nonimmigrant waiver, there is no immigrant waiver for this inadmissibility ground.
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.
Are There Still Potential Problems if No Expedited Removal Order is Issued?
Even if no expedited removal order is issued along with a refusal of entry from CBP, you may still encounter problems with obtaining a new U.S. visa. A prime example is when CBP makes an INA 212(a)(7)(A)(i)(I) bar against you, which means you were found to be an intended immigrant without a proper immigrant visa. This is often the case if the CBP determined you worked in the United States without authorization or otherwise violated your nonimmigrant status.
If you then apply for a B1/B2 visitor visa, F-1 student visa, or any other nonimmigrant visa that requires you to overcome the presumption of immigrant intent under INA 214(b), the U.S. Consulate will be less inclined to grant the visa (even when there is no Expedited Removal Order in your record.) You will need to convince the U.S. Consulate that the circumstances have changed significantly, you have strong ties abroad to compel a timely departure from the United States, and you possess financial resources to avoid working without authorization. If applicable, you may explain how the CBP erred in refusing your entry or in making its inadmissibility determination. Having the right counsel to present proper documentation will help you improve the probability of a review on the merits and a visa grant.
To learn more, read our other articles:
Expedited Removal: How Do You Avoid, Challenge or Overcome It?
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: friend JAD
Section 212(a)(6)(C) of the Immigration & Nationality Act (INA) permanently bars you from immigrating to the U.S. or being lawfully admitted to the U.S. when you have been found to have (1) committed fraud or willful misrepresentation to gain immigration benefits, or (2) made a false claim to U.S. citizenship for any purpose or benefit under immigration, federal or state law.
