Expedited Removal: How to get back to the United States after being deported upon arrival

Most foreign-born people considered deportable by US government agencies have the right to a hearing before an Immigration Judge before it is determined whether they may be deported or not. The Department of Homeland Security can deport some people without having to go before an Immigration Judge in some situations.

This process is called ‘Expedited Removal’. Both its scope and frequency are increasing under the Trump administration and the person being removed could be deported extremely quickly – even within a couple of hours of arrival. The use of Expedited Removal by Department of Homeland Security is growing rapidly.

Who can be deported this way and what can you do about it? This article explains all you need to know about Expedited Removal and gives some tips on how to avoid an (at time of writing) eight month wait time and $930 fee when rectifying the consequences of being deported in this way.

WHO CAN BE DEPORTED VIA EXPEDITED REMOVAL PROCEEDINGS?

Only those attempting to enter the United States at the border or a lawful entry point and those who recently entered the United States unlawfully may be placed in Expedited Removal Proceedings.

Most of my clients who have been in this situation are deported when they attempt to enter the United States at a ‘designated port of entry’ such as an airport, seaport or land border crossing. However, these cases can happen in any one of these situations:

• The CBP agent determines that the person attempting to enter the United States does not have a valid document to enter (such as a visa).

BE CAREFUL: Often my clients are unaware that they did not have a valid visa. They may have applied for a visa which worked previously. However, many clients invalidated their visa by overstaying in the United States previously whereas others attempt to enter the United States using a tourist visa or ESTA when in fact they intend to work in the United States. Just because you have a visa or ESTA confirmation it does not mean it is necessarily valid or that you can do whatever you like in the United States once you enter.

It is also possible to be deported in this way if you lie about anything related to your admissibility at the border. This could happen if you fail to declare to answer the questions correctly on your visa or ESTA application for example.

• Those who arrive by sea but not at a designated point of entry may be subject to Expedited Removal up to two years after their arrival. Department of Homeland Security has discretion to use either ordinary or Expedited Removal proceedings.

• Undocumented Migrants already in the United States may also be subject to Expedited Removal. Until recently, it was only possible to subject an undocumented migrant in the United States to Expedited Removal if they were found less than 100 miles from the US border and entered the country within the past 14 days.

The Trump administration has attempted to expand the use of Expedited Removal for undocumented migrants in the United States. This is currently being litigated in Federal Court and a preliminary injunction has been issued on the expanded powers. While the information above is currently correct, it could be that there are changes to the use and availability of Expedited Removal soon.

CONSEQUENCES

You will likely be found inadmissible under Section 212(a)(9)(A) of the INA and receive a five-year ban on re-entering the United States if you are deported by Expedited Removal. Under some circumstances it is possible to have a longer or even permanent ban on re-entering the United States. It is not possible to appeal this ban.

VOLUNTARY RETURN

If you attempt to enter the United States at a designated port of entry such as an airport and the CBP officer determines that you should be deported by Expedited Removal you may be ‘lucky’ enough to be given the opportunity to voluntarily withdraw your application to enter the United States and return to the country from which you came. The CBP officer has discretion to allow you to do this but if you find yourself in this position you could ask the officer if voluntary return is possible. If you are able to voluntarily return, then you will not have an order of removal on your immigration record. This means you should not receive a re-entry ban and should be allowed to attempt to enter again once you have obtained the appropriate valid visa.

FORM I-212

Those deported via Expedited Removal have the option of filing Form I-212 to ‘waive’ (ignore for the purpose of allowing someone to enter the United States) their entry ban. You only need to waive a re-entry ban if it is still in effect. If the time of the ban has elapsed by the time of your next planned trip to the United States.

While Form I-212 is relatively straight forward it does have a current processing time (at time of writing) of between six and eight months. It also has a filing fee of $930. If successful, you will be able to apply for a new visa and travel to the United States again without being hindered by your ban.

CONSENT TO REAPPLY AT AN EMBASSY OR CONSULATE

I usually advise my clients not to file the I-212. It is possible to request a Consular officer at a US Embassy or Consulate to submit an ‘ARIS Waiver Request’ during a visa application. In this way you may be able to receive ‘Consent to Reapply’ for admission to the United States and have your re-entry ban waived. The benefit of this is there is no filing fee so clients immediately save the $930 filing fee (although there is still a visa fee). These requests are also much quicker than the processing time of an I-212 with expedited requests being approved within a couple of weeks and normal requests taking only a couple of months.

The downsides to applying via an Embassy or a Consulate are that some Consular Officers are not familiar with this procedure as the majority of people use the Form I-212 (as many applicants are not aware of the possibility of doing this at a visa application) and that the Consular Officer may use their discretion as to whether they make the ARIS Waiver Request on your behalf. This means that if you file form I-212 you certainly will have an adjudicator from USCIS take a look at your case but this might not be the case if you attempt to have your re-entry ban waived via an Embassy or Consulate. In both cases there is no guarantee that your re-entry ban will be waived.

CONCLUSION

Expedited Removal is being used more and more frequently as a discretionary tool to deport people from the United States. Often the consequences of being deported this way are a re-entry ban. It is possible to have a re-entry ban waived so that you can go to the United States without having to wait for the ban to elapse.

If you would like assistance with having an INA Section 212(a)(9)(A) re-entry ban waived please contact George@bluelakelaw.com