When you present yourself for admission into the U.S. at a designated port of entry (e.g. international airport), you may be denied entry and issued an expedited removal order if the U.S. Customs & Border Protection (CBP) finds you inadmissible on certain grounds.
The CBP must complete several steps before it issues an expedited removal order (Form I-860).
What Are the Steps in the Expedited Removal Order Process?
The expedited removal process is governed by federal statute and regulations, plus the CBP’s policy outlined in the Inspector’s Field Manual (IFM). The CBP has broad authority to expeditiously remove you if it finds you inadmissible under sections 212(a)(6)(C)(i) (fraud or willful misrepresentation of material fact to gain immigration benefit, section 212(a)(6)(C)(ii)(false claim to U.S. citizenship), and/or section 212(a)(7)(lack of proper travel documents).
Before issuing an expedited removal order, the CBP must perform several procedural steps:
1. CBP Conducts Primary Inspection Upon Your Arrival at the Port of Entry
When you arrive at a designated port of entry, you will join the appropriate customs line for a CBP officer to review your passport and travel documents. U.S. citizens, permanent residents and visitors typically have different waiting lines.
You may be at your final destination or transiting to another U.S. destination or non-U.S. destination. Either way, you will have to request admission to the U.S. at primary inspection. The CBP officer will scan your passport or enter the number into the computer. The officer will also examine your visa(s) and may review the pages in your passport reflecting your travel history. If you are not a U.S. citizen, you will also have your photograph and fingerprints taken.
You can further expect the CBP officer to ask for details about your trip, including its purpose, where you will stay, with whom you will stay, how long you will stay, and whether you have any immediate relatives in the U.S. and their immigration status (if any).
If the CBP officer finds you are absolutely admissible to the U.S., your passport will be stamped for lawful entry. But if you are not clearly admissible, you will be referred to Secondary Inspection.
2. CBP Conducts Secondary Inspection (One) if You Do Not Clear Primary Inspection
The primary CBP officer will note in the system why he or she believes you are inadmissible and you will be escorted to Secondary Inspection. You may have to wait a long time (several hours) to be called for questioning by another CBP officer, usually at an open counter. The CBP officer might also check your personal belongings, including review your messages and communications on electronic devices (cell phones, laptops and tablets).
[UPDATE: On November 12, 2019, in Alasaad v. McAleenan, the U.S. District Court, District of Massachusetts, ruled the CBP and ICE policies for ‘basic’ and ‘advanced’ searches, as presently defined, are unconstitutional because they do not require reasonable suspicion that the devices contain contraband for non-cursory searches and/or seizure of electronic devices. The Court, however, denied the request for injunctive relief to prevent the agencies from “searching electronic devices absent a warrant supported by probable cause that the devices contain contraband or evidence of a violation of immigration or customs laws,” and “from confiscating electronic devices, with the intent to search the devices after the travelers leave the border, without probable cause and without promptly seeking a warrant for the search.” The ruling does not outright prohibit CBP from checking electronic devices. Furthermore, Plaintiffs in this case included 10 U.S. citizens and one permanent resident.]
If you are admitted at Secondary Inspection — after CBP confirms you have no grounds of inadmissibility and you have the proper travel documents — you may then claim your luggage and clear customs.
If you are found to be inadmissible at Secondary Inspection due to lack of proper travel documents, immigration fraud or misrepresentation, prior U.S. immigration violations, criminal history, or other grounds, you will be referred to Secondary Inspection Two.
3. CBP Conducts Secondary Inspection (Two) if You Do Not Clear Secondary Inspection One
Secondary Inspection Two is the last opportunity for you to be admitted to the U.S. or be denied entry, detained, and sent back to your country – with or without an expedited removal order.
During Secondary Inspection Two, a CBP officer may search and inspect your personal belongings and luggage, and ask you questions about your trip and travel history. Another, more experienced CBP officer will usually conduct the formal interview and interrogation.
4. CBP Determines Whether Other Options, Besides Expedited Removal, are Available if You Are Not Admitted
If you are not admitted at Secondary Inspection Two, the CBP has several options besides issuing an expedited removal order.
You may be granted Deferred Inspection if the CBP believes you are probably admissible, but lack complete documentation to be admitted at the port of entry. The CBP may schedule you to report to a Deferred Inspection Site at a future date in order to present the necessary documentation and/or information. You will be given a Form I-546, Order to Appear-Deferred Inspection, explaining what information and/or documentation you must present to resolve the discrepancy.
In deciding whether to grant Deferred Inspection, the CBP will consider several factors, such as the likelihood of your establishing admissibility; the type of documents needed and your ability to obtain them; your identity, nationality, age, health, and family ties; the likelihood you would appear at deferred inspection; the nature of the ground of inadmissibility; and the danger you will pose to society.
Being paroled into the U.S for Deferred Inspection is not the same as a formal admission. If you fail to appear for Deferred Inspection, you will be issued a Notice to Appear in Removal Proceedings before an Immigration Judge and your name will be added to the National Automated Immigration Lookout System.
At Deferred Inspection, the CBP officer will review the Form I-546, review your documents, and decide whether to formally admit you, continue your parole, permit you to withdraw your application for admission, or issue you a Notice to Appear in Removal Proceedings before an Immigration Judge.
Permission to Withdraw Application for Admission
You may be given the opportunity to withdraw your application for admission and leave the U.S. immediately (e.g. on the next available flight). The withdrawal spares you from being issued an expedited removal order. But the withdrawal is noted in your record and your visa may still be cancelled, which could affect future visa applications.
The regulations allow CBP in its discretion to permit you to withdraw your application if you intend to and are able to depart the U.S. immediately. CBP officers are instructed to balance the favorable factors and unfavorable factors to reach a fair decision. Factors to consider are (1) the seriousness of the immigration violation; (2) previous findings of inadmissibility; (3) intent to violate the law; (4) ability to easily overcome the grounds of inadmissibility; (5) age and poor health of the applicant; and (6) other humanitarian or public interest considerations.
5. CBP Completes Expedited Removal Process if it Determines No Other Option is Available to You
If the CBP does not grant Deferred Inspection or Withdrawal of Application for Admission, it must create a record of the facts of the case and statements made by you. The CBP officer will take your sworn statement, in a question and answer format, using Form I-867A & B, Record of Sworn Statement in Proceedings under Section 235(b)(1) of the Act.
The CBP officer shall read (or have read) to you all information contained on Form I-867A, including a warning that expedited removal carries a 5-year bar to reentry.
You will be asked questions regarding your identity (name, aliases and other biographical data), alienage (citizenship, nationality, and residence), and inadmissibility (reasons for coming to the U.S., information on facts of the case and information on suspected grounds of inadmissibility). The officer will also ask if you have any fears about returning to your home country.
Your responses to questions will be recorded on the Form I-867B and Form I-831, Continuation Page. You shall have the opportunity to read (or have read to you) the sworn statement. You may ask for corrections to be made. The CBP officer will then instruct you to sign and initial each page of the statement and each correction. By signing the Form I-867B and Form I-831, 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.
The CBP officer must advise you of the charges against you on Form I-860, Notice and Order of Expedited Removal, and you shall be given an opportunity to respond to the charges in your sworn statement.
After obtaining supervisory concurrence, the CBP officer shall serve you with Form I-860 and you sign the reverse of the form acknowledging receipt. The CBP officer must use an interpreter, if necessary, to communicate with you.
What Are the Main Concerns with Expedited Removal?
There are several concerns with the expedited removal order process, including:
1. You Have No Right to Representation by Counsel
At the port of entry, you have no right to counsel. 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 may not ask the CBP to allow you to have representation during the inspection or expedited removal process. The CBP may allow you to speak with a family member or friend by telephone call, but this is completely within their discretion.
During the interrogation and the taking of your sworn statement, you are alone with the CBP officer. The Form I-867A & B, Record of Sworn Statement in Proceedings under Section 235(b)(1) of the Act, serves as official documentation of the questions and answers during the process. It is critical that you read (or have read to you) the sworn statement and that you fully understand the contents before you sign it.
2. You Will Normally Be Detained Until You Are Removed From the U.S.
An expedited removal order subjects you to detention and to be held in custody by CBP until you are able to leave the U.S. In the meantime, you are not eligible to be released on bond unless you have a medical emergency or you are needed for law enforcement purposes.
If you are unable to depart in the near future, you will be handed over to the Detention & Removal Operations (DRO) unit of Immigration & Customs Enforcement (ICE). You will be held at a detention facility and returned to the airport for the next available flight.
Otherwise, you will have to wait at the airport in the Secondary Inspection office until your next available flight, which could be 24 to 36 hours later. CBP will fine any airline that is unwilling to transport you back to your country or departing city.
3. You Have No Right to Further Review, Except in Limited Circumstances
Once an expedited removal order is issued, there is no further hearing before an Immigration Court or review before a higher agency or appellate court. There are two main exceptions.
Seek Asylum. If you state an intention to apply for asylum under section 208 or a fear of persecution in your country, you will be referred for a “credible fear interview” before an asylum officer.
If you establish a credible fear of persecution, you will be allowed to apply for asylum before an Immigration Judge, either while in ICE custody or after you are released on a bond. If you are unable to establish a credible fear, you may request a review of this decision in a hearing before an Immigration Judge, while in ICE custody.
Generally, there is no review of the Immigration Judge’s determination that you do not have a credible fear of persecution or torture. You will be removed from the U.S. if you are denied asylum (or withholding of removal).
Claim Lawful Status. When you claim lawful status in the U.S. such as U.S. citizenship, lawful permanent residence or refugee or asylee status, the CBP will review its records to verify your claim.
If the CBP finds such proof, it may then admit you to the U.S. or place you in regular removal proceedings before an Immigration Judge. If the CBP finds no such proof, it will allow you to make a statement under oath regarding your claim of lawful status, issue an expedited removal order, and give you the opportunity to have your case reviewed by an Immigration Judge. You will be removed from the U.S. with no opportunity for further review if the Immigration Judge affirms the expedited removal order.
4. You Will Be Subject to a Minimum Five-Year Bar to Re-entry, as Well as a Lifetime Bar in Certain Circumstances
An expedited removal order automatically carries a 5-year to reentry under INA 212(a)(9)(A)(i). You may not receive 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
Because an expedited removal order carries serious consequences, you should do your best to avoid it. At a minimum, you need to develop a strong factual record to later challenge it through a motion to the CBP or to support a Form I-212, Application for Permission to Reapply for Admission into the United States after Deportation or Removal, an I-601 immigrant waiver under section 212(i), or a nonimmigrant waiver under section 212(d)(3).
Generally, you have only 30 days from the date of the expedited removal order to request further review by the CBP Field Office that issued the order. The CBP has authority to reopen, reconsider, and rescind the expedited removal order based on new documentary evidence. Such motions, however, are rarely filed and rarely granted.
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 an immigrant visa or nonimmigrant 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.
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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: Russ Thompson