On July 23rd, Acting Secretary of Homeland Security Kevin K. McAleenan announced a new designation of aliens subject to expedited removal that applies to certain aliens encountered anywhere in the country within two years of illegal entry. Use of expedited removal pursuant to the new designation will help alleviate some of the burden and capacity issues currently faced by the Department of Homeland Security (DHS) and the Department of Justice (DOJ) by allowing DHS to more quickly remove certain aliens encountered in the interior.
“The new designation adds one more tool for DHS—utilizing specific authority from Congress—to confront the ongoing security and humanitarian crisis on the Southwest border and throughout the country,” said Acting Secretary McAleenan. “We are past the breaking point and must take all appropriate action to enforce the law, along the U.S. borders and within the country’s interior. This designation makes it clear that if you have no legal right to be here, we will remove you.”
The Immigration and Nationality Act gives the Acting Secretary “sole and unreviewable discretion” to designate certain aliens as subject to expedited removal pursuant to a 1996 law. This authority has been used many times, including in a 2002 notice that applied the full scope of expedited removal to certain aliens encountered anywhere in the United States for up to two years after arrival by sea. The new designation harmonizes expedited removal for aliens arriving by land with the longstanding process for aliens arriving by sea, and applies to certain aliens encountered between 14 days and two years of entry within 100 miles of the border, or within two years of entry anywhere in the United States. The new designation is separate from, but complements, a 2004 designation that applies to aliens encountered within 14 days of entry and within 100 miles of the border.
Consistent with the Acting Secretary’s express authority to apply expedited removal to certain aliens under existing law, the new designation will take effect upon publication in the Federal Register today and can be found here.
Consistent with current law and practice, unaccompanied alien children are not subject to expedited removal under the new or any previous designation. Additionally, any alien who indicates an intention to apply for asylum or expresses a fear of persecution, of torture, or of returning to his or her country, will be referred for an interview with an asylum officer.
While DHS initiatives are making an impact and border enforcement actions have decreased, the situation at the Southwest border remains untenable. In order to solve this crisis and create lasting change at the border, Congress must address the vulnerabilities in our legal framework. In the meantime, the Department must utilize the tools expressly provided by Congress to continue confronting the crisis.