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Summary Removal Procedures

The deportation process has changed significantly over the past two decades, principally as a result of the Summary Removal Procedure that was enacted by Congress as part of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 ("IIRAIRA"). Today, over two-thirds of non-citizens who are deported from the U.S. are deported under the Summary Removal Procedure. These numbers reflect a steady trend in growth that has been increasing at an alarming rate since 2005 and are a reason for concern because the non-citizens who are subject to this procedure are denied the right to appear before an Immigration Judge, consult with an attorney, or apply for status or relief from the deportation process.

The summary removal procedure, which has been in effect since April 1, 1997, gives U.S. immigration officers the power to detain and remove non-citizens under 3 separate grounds: Expedited Removal, Reinstatement of Removal, and Stipulated Removal.

Expedited Removal:

The Expedited Removal procedures permits an immigration officer to exclude and deport (refuse admission) certain non-citizens who are found to be inadmissible if the immigration officer determines that the non-citizen:

1. Committed fraud or misrepresented a material fact for purposes of seeking entry into the U.S.

2. Is not in possession of a valid U.S. visa or other required entry documentation; or

3. Falsely claimed U.S. Citizenship.

While the expedited removal procedure was originally applied only to non-citizens that were encountered at the border or a port of entry (POE), in 2004, this procedure was expanded to include non-citizens that were encountered within 100 miles of the southwest border who have not been present in the U.S. for at least 14 days.

Reinstatement of Removal:

Reinstatement of Removal applies to non-citizens who return illegally to the U.S. after having been previously removed or ordered removed. In short, the immigration officer simply reinstates the removal order without even giving any consideration to the circumstances or situation of the individual seeking admission or whether there were any flaws in the original order or removal proceeding. This includes cases where the non-citizen was ordered removed in absentia (in their absence) and may not have been given legal notice or opportunity to be heard on the charges against them. The Reinstatement power may be used by immigration officers against non-citizens anywhere in the United States, not just those found within 100 miles of the border (as with Expedited Removal). Moreover, those who are subject to reinstatement are generally detained without bond during the process, which makes the possibility of relief from removal even more difficult.

Stipulated Removal:

This procedure differs slightly from Expedited Removal and Reinstatement of Removal in that the non-citizen is placed in proceedings before an Immigration Judge and is formally charged. However, in most cases, the non-citizen never even appears before an Immigration Judge because they stipulate (agree) to the removal and voluntarily give up their right to a hearing a due process before the Court. In this case, the Immigration Judge may even sign the removal order without ever even seeing the non-citizen or inquiring in the circumstances surrounding the non-citizens agreement to be give up their right to a court hearing and be removed.

The Summary Removal Procedures are very harsh and unfair, as the non-citizen is generally denied representation and/or consultation with an attorney and is not given due process of law, an opportunity to organize and present a defense to the charges, or the ability to apply for relief from the process. In short, the immigration officer making the determination serves as both prosecutor and judge, and then enforcer of the decision, with no judicial review of or appeal from the determination. And even worse is that this process generally takes place within the course of one-day, under stressful and intimidating conditions, giving the non-citizen almost no hope of the possibility of defending against the charge. Exceptions to these procedures are only granted to those who express a fear of returning home on the ground that they will be persecuted or tortured (Asylum or Convention Against Torture).

Since its enactment in 1997, the Summary Removal procedures have eclipsed the number of court removal proceedings. According to a recent study, more than 70 percent of all non-citizens deported by Immigration and Customs Enforcement (ICE) were deported under the authority of the Summary removal procedures.

An applicant for admission who is deported under the expedited removal procedures may not request entry into the U.S. for 5 years after the date of removal, unless a waiver of inadmissibility is granted by the INS. For these reasons, it is extremely important that anyone seeking admission into the U.S. has a clear understanding of the exact nature and extent of the visa status under which they are attempting to enter and that they have all of their immigration papers and documents ready for presentation to the officer at the port of entry. This may also help to avoid accusations by a immigration officer that an applicant was engaging in fraud in connection with an attempted entry when the applicant was merely uncertain or unclear about the terms and conditions of his/her immigration documents.

If you have any questions about Summary Removal Procedures, contact South Florida Immigration Lawyer Sean D. Hummel at (954) 385-3111.