On July 23, 2019, the Secretary of the Department of Homeland Security (hereinafter, “DHS”) published a Notice in the Federal Register announcing that the Department would, effective immediately, exercise the full remaining scope of its statutory authority to use Expedited Removal. Expedited Removal is a legal procedure that has been part of the Immigration and Nationality Act since 1996, and permits low level immigration officers, with review from only a second line supervisor, to summarily deport foreign nationals at the port of entry or within the interior of the U.S. without a hearing before an immigration judge, without legal representation, and without any form of administrative review. Expedited removals may be carried out only against foreign nationals who have not lawfully been admitted or paroled into the United States. Those expeditiously removed are barred from returning to the U.S. for any reason for a five-year period unless they obtain a waiver and permission to apply for admission.

Prior to publication of this Notice, DHS utilized expedited removal only with regard to individuals seeking admission at the port of entry, or those discovered within 100 air miles of the border who could not document having been physically present in the U.S. for at least the fourteen prior days. Under the new Notice, DHS will now begin using these summary deportations against foreign nationals encountered anywhere within the interior of the United States who cannot document that they were either lawfully admitted to the country or that they have been physically present in the U.S. for at least the immediate prior two year period.

The statute authorizing the expansion of expedited removal into the interior of the U.S. and to those present for up to two years has been in the statute for over two decades; however, this is the first time that the authority has ever been utilized to its fullest extent.

In light of the broad expansion of Expedited Removal, it is more important than ever that foreign nationals carry proof of their immigration status on their person at all times. Section 264(e) of the Immigration and Nationality Act has long required that every alien over the age of 18 to “carry with him and have in his personal possession” the “certificate of alien registration or alien registration receipt card.” Proof of registration typically would consist of a passport and I-94 Arrival/ Departure record for nonimmigrants and an I-551 card for Lawful Permanent Residents.

While U.S. citizens are under no obligation by statute or regulation to carry proof of their citizenship status within the interior of the United States, it is unclear how DHS officials will target individuals to verify their immigration status. It may therefore behoove U.S. citizens to carry proof of their citizenship at all times as well. There have been several recent reports of U.S. citizens being detained by U.S. Customs and Border Protection for lengthy periods of time while the officials verify their citizenship. Carrying one’s passport or other evidence of citizenship may avoid a lengthy erroneous detention.

Click to read the DHS Notice in the Federal Register.