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The Time I Sued John Ashcroft

To Prevent the Deportation of a Client and Why You need to Know About It

The United States is about to massively expand the class of aliens subject to expedited removal. In this paper I explain what expedited removal is, the expansion of the class subject to expedited removal, and some potentially useful defenses against expedited removal.

What is Expedited Removal?

Expedited Removal Expedited Removal is a form of "Accelerated Deportation" and is a process by which the United States Immigration Authorities will expel or deny entry to certain classes of people. Because of the speed at which an expedited removal occurs, serious concerns arise about procedural rights and fundamental fairness to the party in Expedited Removal proceedings.

In one particular case in the early 2000's my non-citizen client had been classified as an aggravated felon under immigration law because of his involvement in an insurance fraud ring in the mid 90's. Aggravated felons have been subject to expedited removal since 1996. Even though he had "done his time" on the criminal charge, my client was arrested by ICE in Pittsburgh.

I quickly learned that there simply wasn't enough time to assert the few rights my client had - The expedited removal process moves way faster than the court system (back then, your client would be back home within one week to a month from being caught up in the process).

My solution at the time was to sue the man nominally in charge of the immigration system, the Attorney General of the United States, then John Ashcroft. I sued him personally for his role as the head of the Immigration system that was denying my clients rights.

This all happened a long time ago, and back then I wasn't quite the immigration lawyer I am now. The suit against Ashcroft bought me just enough time to get help from an older and more seasoned Attorney, who was able to get the client out of the Expedited Removal process.

Massive Expansion of Class Subject to Expedited Removal

The last major expansion of Expedited Removal was effectuated by DHS publishing an immediately effective notice in the Federal Register in 2004. This expanded the class of aliens subject to Expedited Removal to include:

Aliens who are encountered within 100 miles of any land or sea border and who entered the U.S. without inspection less than 14 days before the time they are encountered. U.S. Customs and Border Protection could therefore identify possible immigration violators anywhere in this 100-mile border zone and process them for expedited removal if they had been in the country for less than 14 days.

DHS is once again expanding the class of aliens subject to Expedited Removal:

The Acting Secretary of Homeland Security is exercising his statutory authority through this notice to designate for expedited removal the following categories of aliens not previously designated: (1) aliens who did not arrive by sea, who are encountered anywhere in the United States more than 100 air miles from a U.S. international land border, and who have been continuously present in the United States for less than two years; and (2) aliens who did not arrive by sea, who are encountered within 100 air miles from a U.S. international land border, and who have been continuously present in the United States for at least 14 days but for less than two years.

See: https://s3.amazonaws.com/public-inspection.federalregister.gov/2019-15710.pdf

This expansion of the class of aliens subject to Expedited Removal means that every single person who entered the United States by land and unlawfully during the last two years is being added to the class of people subject to expedited removal upon discovery by the Immigration Authorities.

Defenses to Expedited Removal

There are a lot of strategies to defend against expedited removal, and they don't all involve filing a lawsuit against the Attorney General of the United States. Below are a few points to consider:

Claim to adjustment of status. If the alien has a valid claim to status as a lawful permanent resident, refugee, asylee, or U.S. Citizen that claim must be investigated before expedited removal can begin. The detaining officer is required to verify the person's status in ICE computers and or take a statement from the alien about whether the alien has a lawful claim to adjust status and send the case to an immigration judge for a review of the alien's claims to adjustment of status.

Other charges. In most cases, if the government includes charges other than those necessary to support the claim to expedited removal, the alien must be put through normal Removal Proceedings and cannot be subject to Expedited Removal.

Overstays. Overstays are people that were lawfully admitted to the U.S. for a period of time and have stayed in the U.S. beyond that period of authorized stay. People who have only overstayed are not the proper subject of expedited removal.

Entered more than 2 years ago. Counsel should take care to investigate whether the alien client facing expedited removal is actually within the two year lookback period.

Please do not hesitate to reach out to our firm with any questions or comments you may have on this subject or any other immigrations matter

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