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Deportation and Removal
One would hear removal and or deportation interchangeably used to remove someone from United States. However, there was a difference between these two process. Now, there is no difference under the immigration law regarding these two processes by the government—removal or deportation. Removal or Deportation results in same blunt consequence—removal from the country and bar to reentry. The Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA) has done away with the previous legal distinction among deportation, removal, and exclusion proceedings. IIRIRA § 304 (codified at 8 U.S.C. §§ 1229–1229c). So, pursuant to the now applicable law, all taxonomic classification are done away—all proceeding be it, deportation, removal, and exclusion proceedings—are to be labelled as removal proceeding. Even the existing old immigration orders like ‘orders of deportation” are to be labelled “orders of removal.”
Before this change, we had two types of proceedings in which aliens could be denied the entry to the United States: deportation hearings and exclusion hearings. The deportation hearing was the usual means of proceeding against an alien already physically in the United States, and the exclusion hearing was the usual means of proceeding against an alien outside the United States seeking admission. The two types of proceedings had differences. While an exclusion proceeding was usually held at the port of entry, and a deportation hearing was usually held near the residence of the alien within the United States, an alien facing deportation was given at least a 7 days’ notice, no such notice is given to a party to be excluded. Potential deportee had option to appeal any decisions removing him, including suspension of deportation but an excluded party’s right was just confined to Habeas relief and subject to summarily removal from the country. As stated, before with IIRIRA, Congress abolished the distinction between exclusion and deportation procedures and created a uniform proceeding known as removal.
Expedited Removal and Regular Removal
The non-citizen must know that Removal itself is subject to two processes—one is a regular removal and other summary removal called expedited removal. Scope of your legal rights might depend on the removal proceedings that you find yourself in. And that depends on your status. If you did not have any prior status or prior pending proceeding and you are entering into United States, you will be subjected to expedited removal. Under the existing immigration law, if you (1) do not have a valid document to enter United States and (2) you have not been physically present in the United States continuously for the 2-year period immediately prior to the date of the determination of inadmissibility,” and (3) You have been designed for expedited removal by Secretary of the Homeland Security. If all these conditions are satisfied, you will be promptly removed without any hearing. The only way out of this removal is that you express your intention to apply for asylum or a fear of persecution if you are sent back. Then the immigration officer shall refer you to any asylum officer for an for an interview. Then the asylum officer will have to make a determination of credible fear of persecution. And if he does, then you will be in and allowed to plead your case in a regular immigration court hearing. However, if the asylum officer finds that you have not proven a credible fear, then the supervisor revives that determination. And if the supervisor agrees with the officer, you will be allowed an appeal to an immigration judge, who can take further evidence to make a new determination. And if the immigration judge agrees with the asylum officer that you do not have a credible fear of persecution or torture, that decision is final and there is no further appeal. Your file is returned to the Homeland Security and removal is swiftly carried out. In all this you are not entitled to an attorney.
Now if you have proven credible fear before either of the said asylum officer, supervisor or the immigration judge, your case shall be put on the routine track wherein you will be able to have an attorney represent you present your case. And if you have failed the screening test, you will removed forthwith. Congress created the process of expedited removal which enables federal immigration officers to slate certain undocumented noncitizens for rapid deportation without further hearing or review.
Also, one would be subject to expedited removal proceeding if one is inadmissible and such inadmissibility falls under one of the following enumerated reasons:
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have a “communicable disease of public health significance,” INA §212(a)(1).
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committed certain criminal offenses, INA §212(a)(2);
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are terrorists or national security concerns, INA §212(a)(3);
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are likely at any time to become a public charge (i.e., become indigent), INA §212(a)(4);
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are seeking to work without proper labor certification, INA §212(a)(5);
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are attempting to enter illegally or have previously violated immigration law, INA §212(a)(6)-(7);
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are ineligible for citizenship, INA §212(a)(8), or
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have been removed previously or were unlawfully present in the United State, INA §212(a)(9).
Also, once you are inside, let us say as a tourist, it does not mean you are not subject to an expedited removal. The expedited removal process also applies to all non-citizens convicted of an aggravated felony who are not admitted for permanent residence (deportable category). So, the deportation could apply to those formally admitted into the United States as immigrant or non-immigrant. But one must see that just because the DHS call certain offenses as aggravated felony, even though they are not so treated by the states. One must challenge the same.
A convicted alien would not be produced or be given an opportunity before the immigration judge—the removal is handled by an administrative officer. There is nothing under the present immigration law (see section 8 U.S.C. 1228) that which would require that an Immigration Judge preside over the expedited removal process.”)
The homeland security department has a wide discretion to put the target (alien) in either a regular or an expedited removal proceeding. (INA § 238(b), 8 U.S.C. § 1228(b)). If the officer could be convinced that the underlying offense is not an aggravated felony, then the alien is put in the regular removal proceeding.
If you have been given a Form I-851, a Notice of Intent to Issue a Final Administrative Deportation Order, you have 10 days within which to respond to this notice. We will help you prepare for the right defense and check the abuse of discretion by the DHS.
A Recent Example of Expedited Removal and the Law as Applied
For removal of an alien, the immigration law, Section 1225(b) of Title 8 [section of 235(b) of Immigration Nationality Act, 8 C.F.R.§ 235(b)] provides two sets of procedures that apply to aliens “arriving in the United States.” Federal authorities govern the admission and removal of aliens.
Lay of the Land
A word about the laws pertaining to immigration is important here. Immigration laws is exclusive a federal domain. The United States Constitution does not confer it textually to the federal authorities, other than “to establish an uniform Rule of Naturalization . . . throughout the United States.” Also, it is silent about other aspects, egress and ingress of people, working and or conducting business as non-citizens in United States and or admission or removal of non-citizens. It is the courts that which have read the foregoing as a federal subject relying on Naturalization Claus, the Commerce Clause, the Declaration of War Clause, the Law of Nationals Clause, and the Necessary and Proper Clause, among others. Congress gradually and completely since 1798 enactment of the Alien and Sedition Acts, took over the task of regulating the non-citizens within United States. The Supreme Court has said it: The power to regulate immigration is unquestionably ... a federal power.” Chamber of Com. of U.S. v. Whiting, 563 U.S. 582, 588 (2011)
Congress laws are classified under United States Code since 1926 under Titles. As of now we have 54 broad Titles according to the subject matter. Immigration law is generally subsumed under Title 8 (8 U.S.C. ____). The definition of “immigration laws” provided in Title 8 is a broad one, as stated under 8 U.S.C. § 1101(a)(17) (The term “immigration laws” includes this chapter and all laws, conventions, and treaties of the United States relating to the immigration, exclusion, deportation, expulsion, or removal of aliens.”). We will also find references to the Acts, the Immigration and National Act for example. The Acts are the acts of laws made by the Congress. These Acts in turn are incorporated into the United States Code. Here, we are dealing with Immigration and Nationality Act of 1952 (INA). It was first overhauling of the immigration laws, then subsequently amended a few times. “The Immigration and Nationality Act of 1952 . . . as amended . . . represents “a comprehensive and complete code covering all aspects of admission of aliens to this country, whether for business or pleasure, or as immigrants seeking to become permanent residents.” Toll v. Moreno, 458 U.S. 1, 13 (1982). So, we will see, references to like, Immigration and Nationality Act, § 101 et seq., 101 et seq., 8 U.S.C.A. § 1101 et seq. frequently in case laws etc. It is just that the section 101 of the INA is indexed as section 1101 of the Code. It is not always true that such designations shall be strictly followed. However, the office of the law Revision Counsel does its best to allocate closest possible section to tally Acts with the Code. Now we must not forget CFR, a closely related powerful pool of secondary laws which impacts the implementation of the Acts or the Code sections. Since the laws have to be enforced and the Congress might not have spoken about each and every aspect of the implementation of the laws, it is left to the departments and the agencies of the federal government to come up with their own regulations, the Code of Federal Regulations (CFRs). We have CFRs as per the Code provisions being implemented.
The Attorney General is authorized to promulgate regulations, issue instructions, delegate his authority, and “perform such other acts as he deems necessary for carrying out his authority” under the immigration laws, 8 U.S.C. s 1103. The CFR is arranged by subject title and generally parallels the structure of the U.S. Code (U.S.C.), which is a collection of laws enacted by Congress. Therefore, Title 8 of the CFR deals with "Aliens and Nationality”, as does Title 8 of the U.S.C. Here for enforcement of immigration laws as codified under Title 8 we have a corresponding 8 CFR dealing with immigration laws. These regulations carry the force of law. “When Congress delegates rule making authority to an agency, and the agency adopts legislative rules, the agency stands in the place of Congress and makes law.” National Latino Media Coalition v. Federal Communications Commission, 816 F. 2d 785, 788 (D.C. Cir. 1987). But these immigration regulations contained in 8 CFR are not unbridled power, they must follow the statutes passed by Congress. These regulations are binding on the department enforcing the immigration law. And Congress, of course, has ultimate control over agencies, it can override the agencies’ rules, compel them to issue certain rules. Now with this background we come to the issue of expedited removal of the aliens from United States.
Expedited Removal, a statutory lever
Removal from United State follows two different processes. First, pursuant to the procedure under Section 1225(b)(1) of Tile 8 of the United States Code, also referred to as “section 235(b)(1),” an arriving alien may be summarily removed from the United States without further hearing or review if an immigration officer determines that the alien is inadmissible for making certain fraudulent or misleading representations or for not having valid entry or travel documents. See also 8 C.F.R. § 235(b). One thing to note is that the expedited removal DOES NOT apply to all who are believed inadmissible, but only to those who are inadmissible because they lack valid entry documents, or those aliens have attempted to procure their admission through fraud or misrepresentation.
Second, in contrast with the Section 1225(b)(1) procedure, Section 1225(b)(2) establishes the procedure for inspection of other aliens. Section 1225(b)(2)(A) provides that, “if the examining immigration officer determines” that an “applicant for admission” “is not clearly and beyond a doubt entitled to be admitted,” then the alien “shall be detained for a proceeding under section 1229a.” 8 U.S.C. 1225(b)(2)(A). Section 1229a sets out the procedures for a so-called “full” removal proceeding, which involves a hearing before an immigration judge with potential review by the Board of Immigration Appeals (Board) and a federal court of appeals. Here also, in a full removal proceeding, the government may charge the alien “with any applicable ground of inadmissibility under section 1182(a),” and the alien may seek asylum or other forms of relief or protection from removal. See 8 U.S.C. 1229a(a)(2) and (c)(4). So one could be inadmissible for having committed crime, such alien would be put in a regular removal under INA section 240 (1229 of Title 8), rather than section 235(b) expedited removal. In other words, section 1225(b)(2)(A) shall not apply to alien to whom Section 1225(b)(1) applies. We are here discussing the first part.
The Supreme Court provides the reasoning for expedited removal. Says that Congress created expedited removal in the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA), to “weed out patently meritless claims [for admission] and expeditiously remove the aliens making such claims from the country.” Department of Homeland Sec. v. Thuraissigiam, 140 S. Ct. 1959 (2020)
Section 1225(b)(1)'s removal mandate does not apply if the alien indicates either an intention to apply for asylum under section 1158 or a fear of persecution. Instead, if the immigration officer determines that an alien is “inadmissible” for making certain fraudulent or misleading representations or for not having valid entry or travel documents and the alien indicates either an intention to apply for asylum under section 1158 or a fear of persecution, the officer shall refer the alien for an interview by an asylum officer. An implementing regulation governing this expedited removal procedure imposes an analogous obligation. 8 C.F.R. § 235.3(b)(4). In these circumstances, the immigration officer must refer the alien to an “asylum officer,” who is statutorily required to be “an immigration officer who has had professional training in country conditions, asylum law, and interview techniques comparable to that provided to full-time adjudicators of applications under section 1158 of this title,” and is supervised by an officer who has had substantial experience adjudicating asylum applications. Since January 25, 2017, the Department of Homeland Security has expanded category of people subjected to expedited removal pursuant to the Immigration Nationality Act.
The real bite of the expedited removal is felt by those seeking to enter United States without any paperwork relying on an asylum claim. A lot depends on the screening officer. Section 235(b)(1(A)(ii) is clear: If an immigration officer determines that an alien who is arriving in the United States is inadmissible for lacking paperwork, the officer shall order the alien removed from the United States without further hearing or review unless the alien indicates either an intention to apply for asylum under section 208 or a fear of persecution. It is not while entering, even after an alien has been in United States for less than 2 years, this axe of summary removal could fall on him, for either lack of valid entry documents or if he has attempted to procure admission through fraud or misrepresentation.
An Example of Expedited Removal and related Paperwork
For those just caught on the border, it is a nightmarish experience, for the discretion of the arresting officer is wide and unbridled. Let us take an example here of one young boy crossing the border in Texas in 2022. On or about August 15, 2022, Chandi [name changed] illegally entered the United States at or near Calexico, California. See the charging document or a Determination of Inadmissibility dated August 21, 2022. We need to know this document and duty of the immigration officer. Here Border Patrol Agent, the immigration officer is one Michael Singh. His role is clear. During an expedited removal proceeding, an immigration officer must conduct an inspection and determine whether the alien is inadmissible because the alien (1) has made a material misrepresentation to gain admission into the United States, (2) has “falsely represent[ed]” himself to be a United States citizen, or (3) does not possess a “valid entry document.” Here the charge number 4 states that the alien is without “valid entry document.” This Determination of Inadmissibility is a part of Form I-860, Notice and Order of Expedited Removal.
The Form I-860 is the only document that informs an alien of the reason for his or her inadmissibility. The form contains a series of check-boxes and informs the alien that he or she is inadmissible under 8 U.S.C. §§ 1182(a)(6)(C)(i); (6)(C)(ii); (7)(A)(i)(I); (7)(A)(i)(II); (7)(B)(i)(I) and/or (7)(B)(i)(II). These statutory prohibitions make inadmissible, for example: “[a]ny alien who, by fraud or willfully misrepresenting a material fact, seeks to procure ... a visa, other documentation, or admission into the United States,” id. § 1182(a)(6)(C)(i); and “[a]ny alien who falsely represents ... himself or herself to be a citizen of the United States for any purpose or benefit under this chapter,” id. § 1182(a)(6)(C)(ii). On Chandi’s Form I-860, the box checked was § (a)(7)(A)(i)(I), meaning that he was accused of being an immigrant “who is not in possession of a valid unexpired immigrant visa, reentry permit, border crossing identification card, or other valid entry document.” Id. § 1182(a)(7)(A)(i)(I). There is problem here though. Notice of the Charges to the alien, Chandi, it seems was not properly served.
The regulation itself notes that the purpose of the Form I-860 is to “advise the alien of the charges against him.” 8 C.F.R. § 235.3(b)(2)(i). “As Form I-860 provides notice to Defendant of his rights, a missing signature on that page undermines the assurance that he was notified of his due process rights at the time of his removal.” Notice is a key component of due process. If Chandi was not advised of the charges against him in the Form I-860, his due process rights would be violated. Here interestingly, the alien the I-867AB Form [to be discussed below but not the I-860. The Certificate of Service of the Order of Removal is blank.
The steps to be taken by the immigration officer are not complete unless he records the statement of the alien. Here the officer Michael Singh will have to prepare a record of sworn statement in proceedings under section 235(b)(1) of the Act. The law states
In every case in which the expedited removal provisions will be applied and before removing an alien from the United States pursuant to this section, the examining immigration officer shall create a record of the facts of the case and statements made by the alien. This shall be accomplished by means of a sworn statement using Form I–867AB.... The examining immigration officer shall read (or have read) to the alien all information contained on Form I–867A. Following questioning and recording of the alien's statement regarding identity, alienage, and inadmissibility, the examining immigration officer shall record the alien's response to the questions contained on Form I–867B, and have the alien read (or have read to him or her) the statement, and the alien shall sign and initial each page of the statement and each correction. The examining immigration officer shall advise the alien of the charges against him or her on Form I–860, Notice and Order of Expedited Removal, and the alien shall be given an opportunity to respond to those charges in the sworn statement.
8 C.F.R. § 235.3(b)(2)(i). Here see the Record of Sworn Statement in Proceedings under Section 235(b)(1) of the Act. So, now notice that 8 C.F.R. § 235.3(b)(2)(i) requires immigration officers to provide a noncitizen subject to expedited removal with certain procedural protections. For example, the immigration officer must take a sworn statement using Form I-867AB (“Record of Sworn Statement in Proceedings”), which creates a record of the facts of the case and statements made by the noncitizen. 8 C.F.R. § 235.3(b)(2)(i). To do so, the immigration officer must read the noncitizen all the information contained on Form I-867A and—following questioning and recording of the noncitizen's statements regarding identity, alienage, and inadmissibility—record the noncitizen's responses to the questions contained on Form I-867B. Id. The immigration officer must also read the noncitizen the statement and have the noncitizen sign and initial each page of the statement, as well as each correction if applicable. Id. § 235.3(b)(2)(i) specifically states that “[i]nterpretive assistance shall be used if necessary” to communicate with the noncitizen. Now these are important steps, the alien needs to be told about the charges and review of the sworn statements. It is clear that an immigration officer's failure to inform an alien of the charge against him and provide him the opportunity to review the sworn statement is a violation of due process. Lot of courts have found that an immigration officer's failure to review a sworn statement with a noncitizen and read it back to him prior to removal is, in and of itself, sufficient to constitute a due process violation. Here we find that Chandi did sign the receipt and review of the sworn statement. However there are issues here.
The statement: I have read (or have had read to me) this statement, consisting of 1 pages (including this page). I state that my answers are true and correct to the best of my knowledge and that this statement is a full, true and correct record of my interrogation on the date indicated by the above named officer of the Department of Homeland Security. I have initialed each page of this statement (and the corrections noted on page(s)).
But the Sworn Statement record is of more than 3 pages. It is clear that the Michael Singh did not review the entire statement with Chandi. Here, requiring an immigration officer to review the sworn statement with a noncitizen is likely the only opportunity a noncitizen in expedited removal will have to respond to the charge against him. See United States v. Guzman-Hernandez, 487 F.Supp.3d 985, 992 (E.D. Wash. 2020) (“[I]n the context of an expedited removal proceeding, the opportunity to review the sworn statement is especially important because this single safeguard is often both the only opportunity for the alien to respond to the charge against him and the only record of the proceedings.”). Thus, an immigration officer's failure to do so is a violation of due process. This Form I-867 constitutes substantial record evidence and can be used against the alien. So it creates a due process entitlement. See Mathews v. Diaz, 426 U.S. 67, 77 (1976) (“The Fifth Amendment, as well as the Fourteenth Amendment, protects every one of these persons from deprivation of life, liberty, or property without due process of law. Even one whose presence in this country is unlawful, involuntary, or transitory is entitled to that constitutional protection.”).
It is worth repeating that in an expedited removal proceeding, the immigration officer is required to “record the alien's response to the questions contained on Form I–867B, and have the alien read (or have read to him or her) the statement, and the alien shall sign and initial each page of the statement and each correction.” 8 C.F.R. § 253.3(b)(2)(i). In the context of an expedited removal proceeding, the opportunity to review the sworn statement is especially important because this single safeguard is often both the only opportunity for the alien to respond to the charge against him and the only record of the proceedings. Now keep in mind that there is no appeal to this order. Only if the alien professes a fear of persecution or claims to be a lawful permanent resident, can there be some additional steps in the matter.
Here Chandi expressed his fear of persecution so clearly the matter has to be referred to the asylum officer for a credible fear determination.
First, it is clear that the only way is asylum to escape fast removal. Once the alien indicates either an intention to apply for asylum under section 208 or a fear of persecution, the immigration officer shall refer the alien for an interview by an asylum officer. The credible fear interview is a mere initial screening assessment but with consequences. This credible fear interview allows the government to quickly identify potentially meritorious claims to protection while resolving frivolous ones with dispatch.
Enters the Asylum Officer
Here Chandi [name changed] was referred to the asylum officer for credible fear interview. Section 1225(b)(1)(A)(ii) imposes on an immigration officer a duty to refer an alien who indicates either an intention to apply for asylum under section 1158 or a fear of persecution for an asylum interview under 8 U.S.C. § 1225(b)(1)(B) with an asylum officer. Now this asylum officer is statutorily required to be an immigration officer who has had professional training in country conditions, asylum law, and interview techniques comparable to that provided to full-time adjudicators of applications under section 1158 of this title and is supervised by an officer who has had substantial experience adjudicating asylum applications. Here the Asylum officer is one Mr. Peck. See Record of Determination/Credible Fear Worksheet. And the Supervisory asylum officer name is Ms. Fairbank.
See attached Form I-870. Form I-870 tells the asylum officer to declare to the alien at the beginning of the interview:
The purpose of this interview is to determine whether you may be eligible for asylum or protection from removal to a country where you fear persecution or torture. I am going to ask you questions about why you fear returning to your country or any other country you may be removed to. It is very important that you tell the truth during the interview and that you respond to all of my questions. This may be your only opportunity to give such information. Please feel comfortable telling me why you fear harm. U.S. law has strict rules to prevent the disclosure of what you tell me today about the reasons why you fear harm. The information you tell me about the reasons for your fear will not be disclosed to your government, except in exceptional circumstances. The statements you make today will be used in deciding your claim and may be used in any future immigration proceedings. It is important that we understand each other. If at any time you do not understand me, please stop me and tell me you do not understand so that I can explain it to you. If at any time you tell me something I do not understand, I will ask you to explain.
This credible fear interview is only designed “to elicit all relevant and useful information bearing on whether the applicant has a credible fear of persecution,” 8 C.F.R. § 208.30(d). Also, one must be mindful that the statements made here might be used to impeach etc. in your full blown hearing [in case you get any]. However, the interesting part of this credible fear interview is that the while the notes are presented in Q & A format, the I-870 includes a disclaimer that they are not a verbatim transcript of the interview:
The attached notes are not a verbatim transcript of this interview. These notes are recorded to assist the individual officer in making a credible fear determination and the supervisory asylum officer in reviewing the determination. There may be areas of the individuals claim that were not explored or documented for the purposes of this threshold screening.
Second step is the asylum officer shall conduct interviews of aliens, either at a port of entry or at such other place designated by the Attorney General. Which he did here. See the Record of Determination/Credible Fear Worksheet. The Asylum Officer is Peck, we do not see his first name. And the interview was done telephonically, with the presence of a Hindi translator. The law mandates referral to an asylum officer.
Third step is if the officer is satisfied that there is a credible fear of persecution the alien shall be detained for further consideration of the application for asylum. And if the asylum officer finds no credible fear of persecution, the officer shall order the alien removed from the United States without further hearing or review. Since this is a screen stage of the removal proceeding, the applicant need not show that he or she is in fact eligible for asylum. Instead, a “credible fear of persecution” as 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 officer, that the alien could establish eligibility for asylum under section 1158 of Title 8.
Here, the asylum officer did not find any credible fear. He is supposed to provide a record of determination. The law is that the officer shall prepare a written record of a determination. Such record shall include a summary of the material facts as stated by the applicant, such additional facts (if any) relied upon by the officer, and the officer's analysis of why, in the light of such facts, the alien has not established a credible fear of persecution. A copy of the officer's interview notes shall be attached to the written summary. It is done so here. See the Credible Fear Worksheet.
Enters the Immigration Judge
Fourth is that if the alien request, there should be a prompt review by the immigration judge of determination made by the asylum officer. But the alien must request the same. Here Chandi did request. See the Request for Review by Immigration Judge. Such review shall include an opportunity for the alien to be heard and questioned by the immigration judge, either in person or by telephonic or video connection. Review shall be concluded as expeditiously as possible, to the maximum extent practicable within 24 hours, but in no case later than 7 days after the date of the initial determination. These review hearings before the IJ are abbreviated proceedings to ensure that an alien does not have a reasonable fear of returning to his or her country of origin. The limited purpose is for the IJ to review ... the record prepared by the asylum officer, and to assess whether the asylum officer erred in finding that the non-citizen's fear was unreasonable. These reasonable fear review hearings were not envisioned to be full evidentiary hearings. And only if the IJ deems the asylum officer's negative fear determination to be incorrect—in other words, finds that the non-citizen's fear may be reasonable—will the non-citizen become eligible for full withholding proceedings, which involve evidentiary hearings with the opportunity to put on witnesses and submit evidence. But the preliminary nature of the IJ's decision in a reasonable fear review hearing is reflected by the provision that the IJ “may (but need not) accept additional evidence and testimony from the non-citizen.” Thus, counsel's role is important here and to largely to help her client testify convincingly about her fear so that the IJ will find it reasonable. Hence, there is no requirement to find witnesses to testify and documentary evidence to submit.
If now, the immigration judge agrees with the asylum officer that the noncitizen does not have a credible fear of persecution or torture, the case shall be returned to DHS for removal of the alien. This decision by the immigration judge’s is final and may not be appealed. 8 C.F.R. § 1208.30(g)(2)(iv)(A) (2021). But this does not mean that the alien has to be removed. Indeed, the Executive always has discretion not to remove. See 8 C.F.R. § 208.30(g)(2)(i) (2021) (providing that “DHS ... may reconsider a negative credible fear finding that has been concurred upon by an immigration judge.”). However, there are no appeals to the immigration judge’s opinion. The statute section 1252 “provides that ‘no court shall have jurisdiction to review’ an expedited removal order except as provided in subsection (e)” There is no judicial review and no habeas relief. One is precariously placed when one confronts summary removal. Due process might have a different take when one is subjected to summary removal. It has been wryly observed by the Supreme Court since 1892,
It is not within the province of the judiciary to order that foreigners who have never been naturalized, nor acquired any domicile or residence within the United States, nor even been admitted into the country pursuant to law, shall be permitted to enter, in opposition to the constitutional and lawful measures of the legislative and executive branches of the national government. As to such persons, the decisions of executive or administrative officers, acting within powers expressly conferred by congress, are due process of law.
Nishimura Ekiu v. United States, 142 U.S. 651, 660 (1892). A lot has changed since then, however this was echoed very recently in Dep’t of Homeland Sec. v. Thuraissigiam, 140 S. Ct. 1959 (2020). (denying habeas relief and holding that only rights given by the statute shall apply). But Thuraissigiam says nothing about the process due to an individuals who have been present in the United States for more than 30 years and who is seeking not to be allowed into this country in the first instance, but to be freed from detention within it. Also, if you have been in United States for more than 2 years, you would not be exposed to the vagaries of expedited removal. But this statute of expedited removal continues to be grim and graphic.
In this case here taken as an example, the agency it seems properly relied on Chandi’s credible fear interview because the interview record was reliable. The “hallmarks of reliability” is clear: the interview was conducted with an interpreter in a language [Hindi] Chandi said he understood; it is memorialized in a question-and-answer format; the questions posed were designed to elicit details of an asylum claim; and Chandi's responses indicated that he understood the questions. Further, Chandi’s counsel did not object when the IJ admitted the interview record into evidence for lack of credible fear. Here the Immigration Judge affirmed the lack of credible fear. The Decision of the Immigration Judge fill in the box, checking the box which says “has not demonstrated a significant possibility of that the Applicant could establish eligibility for asylum . . or protection under Convention against Torture.
Congress has become tough on the unlawful entries. “In 1996, when Congress enacted the Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA) . . . it crafted a system for weeding out patently meritless claims and expeditiously removing the aliens making such claims from the country. It was Congress's judgment that detaining all asylum seekers until the full-blown removal process is completed would place an unacceptable burden on our immigration system and that releasing them would present an undue risk that they would fail to appear for removal proceedings.” Dep't of Homeland Sec. v. Thuraissigiam, 207 L. Ed. 2d 427, 140 S. Ct. 1959, 1963 (2020). Thuraissigiam case is very clear there is no habeas relief for those in expedited removal. It is a horrible place to be in.
So, if you find, that you have been put in expedited proceeding, no time is to be lost, prepare yourself and let your attorney know that factual details of your sufferings and persecution. It is not a good place to be in, you have a limited time and a very limited opportunity.