Thursday, November 4, 2010

The Return Of Expedited Removal

Is expedited removal coming back? Perhaps with the return of Lamar Smith to the Chairmanship of the House Judiciary Committee.
Expedited removal is the authority of the then Immigration and Naturalization Service and now the Department of Homeland Security to remove arriving aliens and aliens resident in the U.S. less than two years without a hearing before the Executive Office for Immigration Review (EOIR).
Expedited removal is the process by which a non-U.S. citizen can be denied entry and physically removed from a U.S. Port of Entry (“POE”) upon seeking admission to the United States. Orders of expedited removal are issued by U.S. Customs and Border Protection (“CBP”) officials at a POE. The expedited removal process can only be used in certain situations when CBP officers have determined that an individual is inadmissible for one, or a combination of, the following reasons:

Fraud or misrepresentation [INA Section 212(a)(6)(C)(i)];
Falsely claiming U.S. citizenship [INA Section 212(a)(6)(C)(ii)];
An intending immigrant who is not in possession of a valid unexpired immigrant visa
or other suitable entry document [INA Section 212(a)(7)(A)(i)(I)];
A nonimmigrant who is not in possession of a passport valid for a minimum of six (6) months from the date of the expiration of the initial period of stay [INA Section 212(a)(7)(A)(i)(II)(i)]; or
A nonimmigrant who is not in possession of a valid nonimmigrant visa or border crossing card at the time of application for admission [INA Section 212(a)(7)(A)(i)(II)(ii)].
The authority for expedited removal is statutory, not regulatory, and has the force of law and derives from Section 302 of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (“IIRIRA”), which took effect April 1, 1997. Now the then Commissioner of the INS, Doris Meissner, did not want that authority, and took over a year to implement expedited removal, hoping that it would be repeal or modified in subsquent Congresses. It was not, unlike other aspects of IIRIRA, such as restrictions on immigrant use of welfare, that were repealed or modified by Congress. Of course Meissner, and her Republican successors, administratively repealed many aspects of IIRIRA and the Immigration and Nationality Act, such as the restrictions on the entry of public charges, and they did not stop with that. They also sabotaged the implementation of expedited removal.
Neither Meissner nor any of her successors to this day fully implemented expedited removal. Up until 2002, expedited removal was only used at Ports-of-Entry on arriving aliens. But the law applied to any alien arriving or physically present less than two years in the U.S. It was not until 2002 that the U.S. Border Patrol was authorized to use expedited removal on aliens arrested in the U.S., but that was restricted to those aliens within 100 or so miles of the border and limited to those in the U.S. less than 14 days, despite the statute applying the law to all aliens with less than two years presence in the U.S.
The former Immigration and Naturalization Service initially implemented expedited removal only against noncitizens [sic. The law applies to aliens only. It does not apply to those persons who are nationals of the U.S. but not citizens. Persons from the Swains Island and America Samoa are nationals but not citizens of the U.S.] arriving at ports of entry. In 2002 the agency expanded the application of expedited removal to noncitizens who (1) entered the U.S. by sea, either by boat or other means, (2) were not admitted or paroled into the U.S., and (3) have not been continuously present in the U.S. for at least two years. 67 FR 68,924-5 (Nov. 13, 2002). In 2004 the DHS published an immediately effective notice in the Federal Register to expand the application of expedited removal to noncitizens who are encountered within 100 miles of the border and who entered the U.S. without inspection less than 14 days before the time they are encountered. 69 FR 48,877-81 (Aug. 11, 2004). The notice stated that, as a matter of prosecutorial discretion, [There's that word again, discretion, as if an exeuctive branch official has the choice of not implemting a statue. -ed.] the DHS would apply the expansion "only to (1) third-country nationals [not from Mexico or Canada] and (2) to Mexican and Canadian nationals with histories of criminal or immigration violations, such as smugglers or aliens who have made numerous illegal entries." It also indicated that officers could exercise discretion not to commence expedited removal proceedings based on individual equities.
Furthermore, since passage of the statute, DHS and its sub-agencies, U.S. Immigration and Customs Enforcement (ICE) and its predecessor, the legacy INS' Office of Investigations, never fully implemented expedited removal, in defiance of both the law and the Constitutional mandate to execute the laws of the United States. This is another aspect of the non-feasance by not only the Obama Regime, but the Bush and Clinton Regimes that preceded it.
The good news with Smith is that he was the force behind expedited removal and appears to be looking to expand or mandate use of expedited removal.
Some observers expect Smith to pick up where he left off in 1996, when he was chairman of the subcommittee on immigration and wrote legislation to streamline deportation of illegal immigrants.

Those efforts were criticized by Democrats and Hispanic rights groups.

“I think he tends to be extremely enforcement oriented, and so I expect that there will be that continued myopic focus,” said Angela Kelley, vice president for immigration policy at the liberal-leaning Center for American Progress.

Smith wants to do away with the practice of birthright citizenship but does not support repeal of the constitutional amendment.
I would suggest a non-feasance act mandating use of expedited removal as well as the mandatory arrest and removal of all illegal aliens encountered by DHS. No more selective amnesties for favored groups or nationalities.

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