One of the more significant provisions of the 1996 Act is the new “expedited removal” procedure. This frightening law causes great confusion in the immigrant community. They are unclear regarding what “expedited removal” entails, when it begins and who is subject to this type of proceeding. Fortunately, expedited removal does not apply to most undocumented aliens; however, it may apply to alien family members, friends or people who frequently travel.
The “expedited removal” procedure became effective on April 1, 1997 and dramatically heightens the consequences for individuals arriving at ports of entry without proper documentation. All undocumented persons arriving at U.S. ports of entry who misrepresent their status or do not have valid documentation will be subject to expedited removal proceedings. An immigration officer at the port of entry will screen each person to determine whether he or she intends to apply for asylum or fears persecution. If the officer finds that this person does not intend to apply for asylum or that the person does not have fear, the immigration officer has the discretion to order the undocumented person “summarily removed.” The INS has finalized a form which will be used by INS officers at ports of entry which will be used to create a record of the statements made in connection with the expedited removal process.
If the undocumented person indicates to the INS officer that he or she intends to apply for asylum or fears persecution, the person is referred to an asylum officer for a “credible fear” determination. The INS has stated that they intend to conduct these interviews at detention facilities, within 48 hours of the undocumented person’s arrival.
If the asylum officer determines that the asylum applicant does not have a credible fear of persecution, the asylum officer must prepare a written record of his or her decision. Upon request by the undocumented person, his or her case may be reviewed by an Immigration Judge.
However, judicial review of the expedited removal process is extremely limited.
This means that the courts are barred from reviewing the determinations of the asylum officers and the Immigration Judges who review credible fear determinations. This limitation marks a dramatic change in asylum law. It is important to note; however, that for the immediate future, the expedited removal procedures will only be applied to undocumented persons at ports of entry or who are interdicted at sea. The 1996 Act also allows the INS to apply expedited removal to aliens who enter without inspection who cannot prove they have had continuous physical presence in the U.S. for two years.
Despite this authority given to the INS by the 1996 Act, the INS has decided that, for now, it will not apply expedited removal to these types of cases. Because this procedure is still very new, it remains to be seen how inspection sites at ports of entry will be affected by the new expedited removal procedure. The 1996 Act enables a detained person to contact and consult with a representative before the asylum interview if the undocumented person is able to locate such a representative and the consultation will not unreasonably delay the process. “Expedited Removal” proceedings is one of many areas of the new law which gives broader discretion to the Immigration and Naturalization Service. Now, more than ever, it is critical to be represented by an attorney who is aware of the many changes in the law and how the new law is being implemented.
