Eaton Peabody

Homeland Security Expands Expedited Removal to Canadian/US Border – 02.14.06

The Department of Homeland Security recently introduced an expansion of the program known as “expedited removal” to the northern U.S. border. Under the expanded program, inadmissible aliens who entered the U.S. within the past 14 days and who are found within 100 miles of the U.S.-Canadian border may be removed under expedited removal. See http://www.dhs.gov/dhspublic/display?content=5377. 

Expedited removal is as it sounds – a streamlined process for removing from the United States those aliens whom border officials deem inadmissible. Arriving aliens subjected to expedited removal do not have the same due process afforded under the traditional system of removal (formerly “deportation”). Rather, if the examining immigration officer, usually at a Port-of-Entry, determines that the alien does not possess appropriate immigration documents, or is otherwise inadmissible to the United States, the alien may be sent back to Canada and, more importantly, barred from reentering the United States for 5 years without a waiver.  One problem with this process is that the only check on a mistaken decision is consultation, perhaps by phone, with the supervising officer. There is no effective right to appeal an adverse decision. There are some limited rights for those seeking asylum, which is a fairly uncommon event at Maine’s land ports of entry. Border officials may allow an alien to withdraw an application for admission in lieu of being removed, but that decision is completely discretionary.

As anyone from Maine knows, you would be hard pressed to find an inhabited area in Maine which is not within 100 miles of the border. For example, Bangor is 95 miles from Calais and approximately 120 miles from Jackman. Accordingly, the expansion of the program has a wide sweep in this state. Moreover, as many Canadians are not issued I-94 cards or other evidence of entry upon arrival in Maine, it is unclear how they will prove that they were inspected at the border and have been in Maine for more than 14 days should an issue arise. The burden is on the alien to prove this fact. Conceivably, a Canadian citizen could be working in the U.S. without proper authorization or beyond the scope of his/her authorization and be subjected to expedited removal. Hopefully, if an alien does not have his or her immigration documents in their possession, they would be allowed the opportunity to prove their status. Given the streamlined examination process, the opportunity to present any such evidence may be somewhat limited.

Finally, roadblocks set up by immigration could also result in expedited removal in certain circumstances.

Please contact Matthew S. Raynes, mraynes@eatonpeabody.com, for further information.

This paper is provided as general information, and is not a substitute for legal or other professional advice.

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