The Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA) created a new form of deportation called expedited removal, which the Immigration and Naturalization Service began enforcing on April 1, 1997. Expedited removal allows the INS Commissioner to designate certain individuals who can be removed from the United States based on an order from an INS officer rather than an Immigration Judge.
Since April 1, 1997, INS has applied the expedited removal provisions to individuals who arrive at a United States port-of-entry with invalid entry documents or who attempt to enter the United States through fraud or misrepresentation. Expedited removal is also applied to aliens interdicted at sea and then brought to the United States in government custody. This week, the INS expanded the expedited removal process to include certain aliens who arrive in the United States by sea. More information on these new regulations can be located at (place the link to the new regulations article).
Initial Process
INS officers participating in the expedited removal process have authorization to issue orders of removal. These orders, which must be reviewed by a senior level supervisory immigration officer, have the same authority as an order issued by an immigration judge. Consequently, aliens who receive an expedited order of removal are subject to the five-year bar to re-entry.
Individuals issued a removal order pursuant to this procedure must 1) have been read and understand a sworn statement and 2) have been asked if they fear returning to their home country. Therefore, aliens subject to the expedited removal provisions will inevitably be issued orders and removed unless the individuals express a fear of returning to their home country.
Credible Fear
Aliens who either express a) an intent to apply for asylum or b) a fear of returning to their home country shall be referred to an INS asylum officer for a credible fear interview. During the credible fear interview, an INS asylum officer will evaluate whether the alien has a credible fear of persecution and/or torture in his/her home country. Credible fear interviews are normally not conducted less than 48 hours after the alien’s initial expression of potential fear.
An affirmative credible fear finding by the INS asylum officer does not mean that the alien has been granted asylum. Individuals who are found to have a credible fear of persecution and/or torture are placed in removal proceedings before an immigration judge. At this hearing, the alien will have the opportunity to apply for relief from removal in the form of asylum.
If the INS asylum officer finds that an individual does not have a credible fear of persecution and/or torture, the alien may request a review of this decision by an immigration judge. By statute, this review must be conducted within 24 hours if possible, and under no circumstances later than 7 days after the decision of the INS asylum officer. During the credible fear review, the immigration judge solely determines whether the alien has a credible fear of persecution and/or torture. If an immigration judge makes an affirmative determination, the alien will be granted an asylum hearing before an immigration judge. If the immigration judge finds that an individual does not have a credible fear, the individual will be subject to removal. The credible fear decision of the immigration judge is final and cannot be reviewed.
Detention
Aliens awaiting a credible fear interview are subject to INS detention. An alien may only be paroled from INS custody in the event of a medical emergency or for a legitimate law enforcement reason.
After an affirmative finding of credible fear, an alien may be released on parole. The district director with jurisdiction over the detention location has the exclusive discretion to grant the alien parole.