Expedited removal proceedings were proposed initially in the early 1980s as summary exclusions in response to the Mariel boatlift, a reaction to Cuba’s Castro regime that brought approximately 125,000 Cubans and 30,000 Haitians to South Florida without valid entry documents.
In the 1980s, aliens seeking admission without a valid entry document generally had a right to a hearing before an immigration judge, and they could appeal adverse decisions to the Board of Immigration Appeals. Moreover, they could appeal an adverse Board decision to the U.S. Courts of Appeal. And they couldn’t be deported while their cases were still being litigated.
According to the General Accountability Office, in June of 1989, there were only 69 immigration judges. This made it difficult for the immigration court to provide hearings for the 155,000 immigrants brought to the United States during the Mariel boatlift.
The immigration court has more than 600 immigration judges now, but it still can’t keep up with its case load. Its backlog has risen dramatically, especially in recent years, from 225,846 cases at the end of January 2017 to 3,432,519 cases as of the end of August.
Congress provided an alternative to hearings and appeals in 1996 when it established expedited removal proceedings with the passage of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996. The provisions authorize removal without a hearing of arriving aliens who are inadmissible because they do not have valid documents, or if they have attempted to procure their admission through fraud or misrepresentation.
However, an exception is made for aliens who say they are afraid that they will be persecuted or tortured if they return to the countries they came from. If they can establish that their fears are credible, they are entitled to a hearing before an immigration judge and the right to appeal an adverse decision to the Board of Immigration Appeals.
In DHS v. Thuraissigiam (2020), the Supreme Court held that expedited removal proceedings do not violate due process when applied to an immigrant who is apprehended 25 yards from the border after making an illegal crossing. An alien who is apprehended shortly after making an unlawful border crossing only has the rights that Congress has provided by statute.
The expedited removal provisions also provide the Department of Homeland Security with the discretion to apply expedited removal proceedings to an alien who is in the United States but “has not been admitted or paroled into the United States, and who has not affirmatively shown …. that the alien has been physically present in the United States continuously for the 2-year period immediately prior to the date of the determination of inadmissibility.”
Moreover, these provisions grant the Homeland Security secretary the “sole and unreviewable discretion” to designate additional classes of aliens for purposes of expedited removal.
President Trump implemented this provision initially in July 2019, but only 17 aliens were removed through the expanded expedited removal system.
On Jan. 20, 2025, he established an expanded expedited removal system a second time with Executive Order 14159, Protecting the American People Against Invasion. Section 9 directs the Homeland Security secretary to “take all appropriate action” to designate additional classes of aliens for expedited removal. Four days later, the department announced that it was implementing the expedited removal provisions “to the fullest extent authorized by Congress.”
Homeland Security claimed that the expansion would enable it “to address more effectively and efficiently the large volume of aliens who are present in the United States unlawfully … and ensure the prompt removal from the United States of those not entitled to enter, remain, or be provided relief or protection from removal.”
As could be expected, the expansion has been challenged in court, and at least one of the suits has been favorably received. In Make the Road New York v. Noem, the plaintiff claims that the expansion is illegal because it puts individuals living anywhere in the country at risk of being separated from their families and deported without a hearing. The court granted a stay of the expansion pending the conclusion of the case.
The challenge could go either way: The Supreme Court has held that constitutional protections apply to every alien within the United States, including aliens who entered unlawfully, but the process due such aliens may vary according to the extent to which they have developed substantial connections to this country.
Do aliens who live unlawfully in the United States for less than two years have substantial connections with this country? That would vary according to the circumstances in each case, which makes this situation ironic, as the administration would have to conduct hearings to determine whether the aliens in question have substantial enough connections to the United States to warrant a hearing.
Aliens aren’t subject to expedited removal unless they were inadmissible when they entered the United States, and being inadmissible at time of entry makes them deportable. Moreover, asylum is the only relief they are likely to apply for, and aliens in expedited removal proceedings have access to an asylum hearing too if they can establish a credible fear of persecution.
In any case, the immigration court is in the midst of a backlog crisis. It can’t provide hearings for all of the aliens on its docket already, and the aliens in question would just take their places at the end of a line of 3.5 million aliens who are in line ahead of them.
Nolan Rappaport was detailed to the House Judiciary Committee as an Executive Branch Immigration Law Expert for three years. He subsequently served as an immigration counsel for the Subcommittee on Immigration, Border Security and Claims for four years. Prior to working on the Judiciary Committee, he wrote decisions for the Board of Immigration Appeals for 20 years.
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