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Grant of Motion to Vacate Expedited Removal Order + Rescission of Misrepresentation Charge = A True Success Story

On November 9, 2016 – several hours after Donald Trump gave his acceptance speech as U.S. President-elect – I received a telephone call from the U.S. Customs & Border Protection (CBP) on a Motion to Vacate Expedited Removal Order I had filed on October 31st (only 9 days earlier). I had appealed to the CBP Field Office, which denied my client admission at the U.S. port of entry, to rescind the removal order and the charge that she willfully misrepresented material fact to gain entry into the U.S. as a visitor.

My client sought entry into the U.S. on a valid B1/B2 visitor visa, which she obtained six months before she married her U.S. citizen spouse. Following the marriage in her home country, she and her elderly parents arrived at an international U.S. airport for a temporary visit. Her American spouse also accompanied them on their first trip to the U.S.

Her plan was to tour the U.S. with her parents and get accustomed to the American lifestyle and culture before she returned to her home country to start the marriage-based immigrant visa process. They had return airline tickets to leave the U.S. within two weeks.

At primary inspection, she and her parents presented the proper travel documents (valid passports) and entry documents (unexpired 10-year, B1/B2 visitor visas) to the CBP officer. While her parents were admitted as visitors, she was pulled into secondary inspection.

During secondary inspection, the CBP officer questioned her about the purpose of her trip. She explained the temporary nature of her visit and, while she was reaching for her return airline ticket, the officer took her personal belongings and searched through them.

Among her personal belongings was a folder containing several documents. In the folder, the CBP officer found two letters from an employer in her home country that were contradictory. The first letter stated she had resigned from her position, indicating she was no longer employed. The second letter stated she was on a leave of absence, implying she still had a job.

She immediately clarified that the second letter contained false information and she had in fact resigned from her job. She described her plans to return to her home country on time and later apply for an immigrant visa, based on her marriage to a U.S. citizen.

Instead of allowing her to withdraw her application for admission due to lack of a proper visa, the CBP detained and interrogated her for at least five hours. She was questioned by two CBP officers until her Sworn Statement was taken about eight hours after she arrived at the airport.

Using a Form I-867A & B, Record of Sworn Statement in Proceedings under Section 235(b)(1) of the Act, the CBP officer documented her testimony in a question and answer format. My client signed the Sworn Statement and initialed each page without fully reading or understanding the contents.

The CBP issued a Form I-860, Notice and Order of Expedited Removal Order, finding her inadmissible, denying her entry, and ordering her expeditiously removed on two counts. The first charge was under INA 212(a)(7)(A)(i)(I), i.e. lack of proper travel documents. The second (and more serious) charge was under INA 212(a)(6)(C)(i), i.e. fraud or willful misrepresentation of material fact to gain admission into the U.S. by presenting a fake letter.

My client was sent back to her country the following day on the next available flight. Her spouse and parents booked airline tickets and returned there as well. A week later, she and her spouse completed a video consultation with me via Skype.

In the consultation, I explained that the expedited removal order, by itself, subjects you to a 5-year bar to reentry. And a charge of fraud/willful misrepresentation under section 212(a)(6)(C)(i) furthers bars you permanently from entering the U.S.

I  described the two main options to immigrate to the U.S. following an expedited removal order with a misrepresentation charge.

Option A is to submit a Motion to Vacate the Expedited Removal Order to the CBP Field Office that issued the order. Because this request is, in essence, a motion to reopen or reconsider to the Service, the CBP must receive it within 30 days of the date of the order.

Option A is available if the applicant has factual grounds and legal claims to challenge the CBP’s determination that she is inadmissible to the U.S. and must be expeditiously removed from the U.S.

Option B is to file an  I-212, application for permission to reapply for admission after removal, to overcome the 5-year bar. Plus file an I-601, application for INA 212(i) waiver of inadmissibility, to be excused from the section 212(a)(6)(C)(i) charge – a permanent bar. Both waivers must be filed in conjunction with the immigrant visa application, and are typically submitted at or after the visa interview.

Option B is available if the applicant meets the eligibility requirements for the I-212 waiver and I-601 waiver. To get the I-212 waiver, the applicant must have favorable factors (e.g. close family ties in the U.S.) that outweigh the unfavorable factors (e.g. bad moral character). To receive the I-601 waiver, the applicant needs a qualifying relative (i.e. U.S. citizen or permanent resident spouse or parent) who will suffer extreme hardship if she is not admitted to the U.S.

The foreign national and her American spouse chose Option A as their primary solution, and Option B as their backup plan. Both options require strong documentary evidence, favorable facts, and persuasive legal arguments for an approval to be possible.

During the next three weeks that followed the consultation, I counseled my client and her spouse on the documentary evidence to gather for the request to vacate expedited removal order. The evidence demonstrated the temporary nature of the planned visit, my client’s ongoing ties to her home country, and her and her spouse’s good moral character.

Furthermore, I reviewed the Sworn Statement and Notice and Order of Expedited Removal Order, the agency’s policy manual, and applicable case law to formulate the strongest legal arguments to support the motion.

In the Motion to Expedite Removal Order, I noted that my client had proper travel documents in the form of an unexpired passport and valid visitor visa. I argued she was not inadmissible under INA 212(a)(7)(A)(i)(I) because it was appropriate for her to travel to the U.S. on a valid B1/B2 visa for a temporary visit, even though she was married to a U.S. citizen.

In addition, I explained why the CBP made an error by making a willful misrepresentation charge under INA 212(a)(6)(C)(i). I pointed out that my client did not affirmatively provide the fake leave of absence letter to the CBP officer, who found it during his search of her personal belongings. I added that even if she had misrepresented a material fact, she timely recanted it by admitting the letter contained wrong information and clarifying she was unemployed in her home country.

I pointed out the CBP should have at least given her the opportunity to withdraw her application for admission, rather than issue an expedited removal order that subjected her not only to a 5-year bar, but also to a permanent bar.

The normal processing time for a Motion to Vacate Expedited Removal Order is 6 months. To my pleasant surprise, it took less than 10 days for CBP to review the motion and make a decision in this case.

Four days after the CBP Field Office received the motion, a CBP officer telephoned me to convey they were taking the request into serious consideration.

On November 9th, which was 9 days after receiving the motion, the Watch Commander at the CBP Field Office called to say he would vacate the expedited removal order and treat the case as a withdrawal of application for admission to the U.S. He noted that my client was no longer barred from entering the U.S.

The foreign national no longer has a 5-year bar to reentry due to the removal order or a permanent bar to reentry due to the willful misrepresentation charge. She now readily qualifies for a marriage-based immigrant visa without needing any waivers of inadmissibility.

The rescission of the removal order and dismissal of the section 212(a)(6)(C)(i) charge means my client will not need an I-212 waiver or I-601 waiver to get the immigrant visa. This will make it significantly easier and faster for her to immigrate to the U.S. (because waiver requests often take 6 to 12 months to be adjudicated).

My client, her spouse and I communicated by Skype, telephone and email. They decided to hire me upon completing the initial video consultation, in which I laid out a strategy and action plan to resolve their immigration predicament.

Although we never met in person, we worked together effectively to create a desired and expeditious outcome. I continue to represent them in their I-130 immigrant petition and immigrant visa process.

The speedy approval of the request to vacate expedited removal order and dismissal of the misrepresentation charge is a true success story in 2016 for Dyan Williams Law PLLC.

I enjoy taking on challenging cases in which foreign nationals seek to enter the U.S. lawfully as an immigrant or nonimmigrant, after they have been found inadmissible or issued an expedited removal order. Getting I-212, I-601 and 212(d)(3) waivers are among my top areas of expertise.

Under the new administration – which begins on January 20, 2017,  and is expected to be more hardline on immigration – lawful entries into the U.S. will be more critical than ever.

Cheers,

Dyan Williams

Founder & Principal Attorney
Dyan Williams Law PLLC
(612) 225-9900
dw@dyanwilliamslaw.com

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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.

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Photo by: Ian D. Keating

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

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. 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 RemovalI-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.

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 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.

To learn more, read our other articles:

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

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.

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Photo by: friend JAD

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

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.

Deferred Inspection

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.

To learn more, read our other articles:

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

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.

SUBSCRIBE           CONTACT

Photo by: Russ Thompson