The Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRAIRA) created a new form of deportation called expedited removal, which the Immigration and Naturalization Service (INS) began enforcing on April 1, 1997. The Homeland Security Act of 2002 abolished the INS and transferred most of its functions to various bureaus in the new Department of Homeland Security (DHS) effective March 1, 2003. Expedited removal policy is being administered by the Secretary of Homeland Security.
Expedited removal is the procedure by which immigration officers may summarily
determine that a noncitizen is not admissible to the United States. An alien who lacks proper documentation or has committed fraud or willful misrepresentation of facts to gain admission into the United States is inadmissible and may be removed from the US without any further hearings or review, unless the alien indicates either a fear of persecution or an intention to apply for asylum.
Asylum
Aliens seeking asylum must demonstrate a well founded fear that if returned home, they will be persecuted based upon one of five characteristics: race, religion, nationality, membership in a particular social group or political opinion. An alien who is in expedited removal and claims asylum is given a "credible fear" hearing to determine whether there is support for the asylum claim. The term credible fear of persecution means that there is a significant possibility, taking into account the credibility of the statements made by the alien in support of the alien's claim and such other facts as are known to the immigration officer, that the alien could establish eligibility for asylum. Those who pass the credible fear hearing are placed in formal removal proceedings.
Removal without Hearing or Review
If an immigration officer determines that an "arriving" alien is inadmissible under the Immigration and Nationality Act (INA) because of misrepresentation or documentation issues, the officer must order the alien removed from the United States without further hearing or review.
Fear of Persecution
If the alien indicates either a fear of persecution or an intention to apply for asylum, the officer must refer the alien for an interview by an asylum officer. If the alien is determined to have a credible fear of persecution, he or she may then be placed into removal proceedings and become eligible for a custody redetermination.
Not in US for Two Years Prior to Determination of Inadmissibility
Expedited removal may also be applied to some aliens apprehended in the interior of the United States. In the discretion of the Secretary of Homeland Security, expedited removal procedures may be applied to aliens who were not admitted or paroled if they cannot affirmatively show to the satisfaction of an immigration officer that they were in the United States continuously for two years before the determination of their inadmissibility.
Aliens Convicted of Crimes
The INA requires DHS to expedite the removal of aliens convicted of crimes. INA requires the government to provide for the availability of removal proceedings at federal, state and local correctional facilities for aliens convicted of specified crimes. Removal proceedings must be conducted in a manner that eliminates the need for additional detention at any DHS processing center and that ensures expeditious removal at the end of the alien's criminal incarceration. For aliens convicted of aggravated felonies, removal proceedings must be initiated and, "to the extent possible," completed, including any administrative appeals, before the alien's release from criminal custody. INA does not require DHS to remove any alien sentenced to actual incarceration before the end of his or her sentence.
Criminal Alien Institutional Hearing Program
The Executive Office for Immigration Review (EOIR) created the Criminal Alien Institutional Hearing Program (IHP), sometimes known as the Institutional Removal Program (IRP), to carry out these mandates. Under the IHP, aliens convicted of crimes may be centralized in designated Bureau of Prisons facilities for removal hearings. DHS may conduct removal hearings before the alien has finished serving his or her criminal sentence, either at the centralized facilities or at state or local facilities. DHS must make reasonable efforts to ensure that the alien's right to counsel and access to counsel are not impaired by the institutional removal hearings. Aliens who may be subject to the IHP include those convicted of aggravated felonies; controlled substance offenses; firearm offenses; certain miscellaneous crimes; or two crimes involving moral turpitude if a sentence of one year or longer could have been imposed for both.
Administrative Removal of Certain Aliens
Administrative removal applies to aliens convicted of aggravated felonies who are, when removal proceedings begin, neither lawful permanent residents nor conditional permanent residents. An alien in administrative removal proceedings is not entitled to a hearing before an Immigration Judge. However, he or she is entitled to "reasonable" notice of the charges and the opportunity to inspect the evidence and rebut the charges; counsel, at no expense to the government; a determination for the record that he or she is in fact the alien named in the notice; and a record of the proceedings for review on appeal. The final order of removal must not be adjudicated by the same person who issued the charges. The government must wait 14 days after the administrative order is entered to execute that order, so that the person may apply for an appeal.