This past Saturday evening, on February 18, 2017, the new Secretary of the Department of Homeland Security, John Kelly, issued a Memo to implement the new Executive Order on Border Enforcement that was signed on January 25, 2017. One of the most shocking and harmful of the changes in the Memo was the announcement that Expedited Removals, previously issued only at airports, border points of entry, and against undocumented individuals who were caught within 100 miles of the border, will now be applied throughout the United States. This is an unprecedented expansion of the law that will hopefully be challenged in federal courts. This new Memo will potentially allow very fast deportations of millions of undocumented individuals from the United States.
Q&A ON EXPEDITED REMOVALS
What is an Expedited Removal Order?
An Expedited Removal Order is an order of deportation, with similar legal effect as an order of removal by an immigration judge. But the Expedited Removal order is not issued by an immigration judge, it is issued by the immigration officer soon after arrest of the person. More importantly, the arrested person has no right to speak to an attorney, no right to a bond or a bond hearing, and no right to a hearing before an immigration judge where you can apply for a benefit, such as Cancellation of Removal. All due process rights guaranteed by the U.S. Constitution and in the Immigration and Nationality Act (i.e., right to a bond, right to obtain an attorney, right to a hearing before an immigration judge and to apply for a status, such as permanent residency) are denied. After the order is given the person is removed from the U.S. as soon as possible. If the person is from a border country such as Mexico, the removal is quickly arranged. If from another country such as in Central America, or Africa, the removal will take longer to arrange because it is by plane.
What Is The Reason For Expanding Expedited Removal Order To The Interior of The US?
The Memo clearly explains the government’s reason for the expansion. The Memo states that immigration courts are seriously backlogged with over 500,000 cases in immigration court. And that many court cases take years to be heard by an immigration judge. Therefore, the government wants to deport people without allowing hearings in immigration courts, to avoid deportation, and remain in the US. The reason for the court backlog lies with Congress because for over 20 years they refused to properly increase funding to expand the immigration courts to handle the backlog of cases. It is wrong to blame immigrants for the inaction of Congress.
Can Undocumented Individuals Do Anything to Stop An Expedited Removal Order From the US?
YES! Nearly all undocumented individuals can stop an immigration officer from issuing an Expedited Removal order. First, undocumented individuals must ALWAYS carry in their possession, proof of continuous physical presence in the U.S. for at least the past TWO years. The two years of documentation must be updated every month to prove your continuous physical presence. You must have the documentation in your possession at all times, especially whenever you leave the house (even to go outside to empty the garbage, or go to work, church, or school). It should ALWAYS be in your possession no matter where you go or what you are doing. And besides updating your documentation every month, you should have an extra copy at home. This could allow a documented family member or friend to present proof of your continuous physical presence for the past two years to the immigration officer at the local ICE office. Since this may not be allowed, the best way to avoid an Expedited Removal Order is to always carry the documentation with you.
Also, international treaties, signed and recognized by our government, allow every foreign national to speak to someone at their own consulate after arrest in the U.S. This is a right that must be recognized by all government officials when demanded by any foreign national. Asserting this right can be helpful if you face an immigration officer who refuses to recognize your proof of two years of continuous physical presence in the U.S. You can ask the consulate to intervene by helping you to get an attorney to argue against expedited removal and remain in the U.S.
Finally, if you are afraid to return to your home country, you should clearly and consistently state you are afraid to return, to every immigration officer you come in contact with. Once you express a credible fear of persecution you will be allowed to have an interview by an asylum officer. However, your fear to the officer must be done in a way that is recognized under our immigration laws. For example, if you have a fear of harm by cartel or gang members in your community back home, your fear will not be considered important under our law.
However, if your fear is also based on the targeting of family members back home by cartel or gang members, you may be part of a protected social group of family members and your claim may be successful. Or if you are afraid to return home because you will be harmed by a violent ex-partner, spouse or former spouse in your home country, your claim will more likely be recognized because it is based on a protected social group of battered ex-spouses or partners. You must also be specific in the type of harm you fear (physical attack, murder, etc.), and who will inflict the harm on you. But this type of defense to an Expedited Removal order is more difficult to establish to an immigration officer. It will always be best to present two years of documentation of continuous physical presence in the U.S. to avoid an Expedited Removal order, and only assert a fear of persecution if the fear is real and you have no other choice.
What Type Of Documents Should I Carry to Show My Continuous Physical Presence For the Past Two Years?
There are many types of documents or combinations of documents that can show continuous physical presence: monthly bank statements, monthly car payments, monthly cell phone bills, monthly house payments or rent receipts. Every monthly document must clearly have your name on the document. Basically, any monthly bills and payments with your name on them should be acceptable. If you do not have monthly receipts, other documents such as proof of doctors visits for yourself, or your children, showing you took your child to the appointments, or school activities such as parent teacher conferences you attended can prove physical presence.
A letter from your church minister, pastor, priest or deacon, showing attendance at church gatherings can be very helpful. But these letters must be on church stationary and signed and dated by the minister, pastor, priest or deacon. The letters must also specifically and clearly explain your participation in the church, and how often you attend or participate in the church activity. This type of letter can be used for both parents, and even undocumented children, if all attend the church activities. You can make copies and use a copy for each person. If church letterhead is not available, the letter must be signed and dated by the pastor, etc., before a Notary Public. A copy of a photo ID of the person writing the letter (driver’s license, for example) should be attached to the letter. There may be other types of documents one can use to establish continuous physical presence. Just make sure the documents are clear and readable, with your name and date on the document and make a readable, duplicate copy.
Will The Expansion of Expedited Removal Be Challenged in Court?
We think so. This is a very unprecedented and massive expansion of Expedited Removal. And it is clearly done to deny due process rights to millions of undocumented individuals, many, if not most, of whom are to eligible to avoid deportation and even successfully apply for and obtain permanent resident status. So legal challenges will likely be made and possibly be successful to overcome this unprecedented and unlawful application of law. But even if these changes are successful, it could take months or longer to get a positive court decision. So it is best to always carry proof of your continuous physical presence wherever you go.
Can Other Challenges Be Made to Stop the Expansion of Expedited Removal?
Yes. Many immigrant communities and their allies are getting organized to stop this unprecedented and unlawful expansion of law from deporting hundreds of thousands of undocumented, thereby destroying immigrant families in our communities. Many of these families contain U.S. citizen and permanent resident family members. Such organizing include: presentations to immigrant communities about using documentation to stop issuance of Expedited Removal Orders; marches, rallies, strikes, and protests to stop the government deportations from destroying our immigrant communities and harming thousands of businesses that rely on immigrants to survive and succeed. Some church communities, based on their strongly-held religious beliefs of providing safe refuge to those facing harm, are preparing to house immigrants who face imminent deportation. Other communities are organizing alerts and planning ways to respond by protesting when raids are taking place. We can and must oppose, in as many ways as legally possible, government efforts to deny due process rights that are guaranteed to every person in the U.S., even undocumented persons, who are equally protected by the U.S. Constitution, in addition to the rights and protections under the Immigration and Nationality Act. As the great African American anti-slavery leader Frederick Douglas stated: “Power concedes nothing without a demand, it never did and it never will.”
¡Sí Se Puede!
Ron Russell, Rachel Mendoza-Newton, Ted Farrell and Duffy Trager of the Russell Immigration Law Firm