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August 11, 2004

Asylum News 29

DHS Announces Expansion of Expedited Removal to Border Areas Border Patrol Officers Given Power to Order Deportations – Decision Further Undermines Fairness; Puts Refugees at Risk

The Department of Homeland Security announced on Tuesday, August 10, 2004, that it will expand the use of expedited removal – a summary immigration deportation process – to immigrants who are apprehended without valid entry documents within 14 days of their entry and within 100 miles of the U.S. border with Canada or Mexico. This significant change in immigration policy will take effect immediately and immigrants could be affected within a few weeks. The expansion of expedited removal will give border patrol officers in the border area the power to issue deportation orders that are currently issued by immigration judges. The policy will not be applied to Cuban nationals, and will not generally be applied to Mexican and Canadian nationals – with certain exceptions detailed in DHS materials. The expedited process will be applied to undocumented Central Americans and other “third country” nationals apprehended in the 100-mile border area. The official notice lists the Border Patrol Sectors that are affected. For more information: Read the DHS press release Read the Federal Register Notice As a result, these migrants will face the possibility of deportation without an immigration court deportation (removal) hearing, will face an increased risk of improper or mistaken deportation under the summary procedures, and will no longer be entitled to a bond hearing to seek release from detention before an immigration judge. Those who are undocumented will, according to DHS, bear the affirmative burden of showing border patrol officers that they have been in the U.S. for more than 14 days. Background on Expedited Removal Concerns Numerous concerns have been raised about expedited removal’s lack of due process protections and about its implementation. Applied since 1997 at U.S. airports and borders, expedited removal is a summary deportation process that gives DHS immigration officers the power to issue deportation orders that could previously be issued only by trained immigration judges. Human Rights First has documented the flaws that have plagued expedited removal in a series of reports. A Human Rights First report from October 2000 - Is This America? - identified numerous problems with the expedited process and recommended that its use be limited to immigration emergencies. A report just issued by the American Bar Association and the Leadership Conference on Civil Rights also flagged many deficiencies in the implementation of expedited removal – and highlighted the case of a refugee who was mistakenly deported back to face danger in Colombia upon the order of an immigration inspector under the expedited deportation process. Concerns About Expansion At the time the expedited removal provisions were initially implemented in 1997, the Department of Justice decided not to apply the process to people who were already within the U.S. and had not been formally admitted or paroled. Noting that it needed time to “gain insight and experience” with the process by applying it on a more limited basis, the Department of Justice and INS acknowledged that “application of the expedited removal provisions to aliens already in the United States will involve more complex determinations of fact and will be more difficult to manage. . .” 62 Fed Reg at page 10313 (March 6, 1997). It is unclear how border patrol officers will manage the many complex determinations that are involved in these deportation decisions. DHS has stated that the expedited procedures will only apply to undocumented migrants who have entered the U.S. within 14 days, but it is not clear how Border Patrol officers will make this assessment. DHS has stated that “the expanded use of expedited removal is primarily directed at those illegal aliens who are not citizens of Mexico or Canada.” It is not clear whether the process will be directed at migrants of particular nationalities, which could raise concerns of profiling. DHS has stressed that the process will not be implemented until border patrol officers have received training. But training will begin within the next week, and the process could be implemented within weeks. Although training is critical, it has not prevented the mistaken deportation of citizens, refugees and legitimate tourists under the existing expedited process. Attention Legal Representation Organizations: DHS has advised that it will issue additional explanatory materials later this week. If your organization assists migrants and refugees in the border areas, and you would like to receive these materials, please contact HuntC@humanrightsfirst.org. If you are not subscribed, and would like to continue receiving Asylum Protection News, sign up here