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No Avenue for Court-Issued Relief for Those Subjected to Expedited Removal

Expeditious removal is applied to certain perceived foreign nationals who are seeking admission to the U.S. at a port of entry, e.g., a border-crossing point or international airport, and who have been determined by U.S. Customs and Border Protection ("CBP"), a component of the U.S. Department of Homeland Security ("DHS"), either to have made a willful misrepresentation to obtain a visa or an admission to the U.S. or to be an immigrant not in possession of requisite documentation. Unlike orders made in regular removal proceedings by an immigration judge, expedited-removal orders are made without a hearing and result in the deportation of the foreign national at issue without the right of an appeal. Oftentimes, the expedited-removal process includes long periods of detention by CBP until a final decision is made, leading many simply to accept the deportation, so as to be released from detention sooner, rather than trying to find a way to avoid it, something that may require much longer detention before actually being achieved. While in the custody of CBP, a foreign national in the process of being expeditiously removed almost never has access to a lawyer. Once expeditiously removed, the relevant foreign national is subject to at the very least a five-year bar to admission to the U.S.

Because the expedited-removal process is conducted solely by CBP without the oversight of a court, whether administrative or judicial, one can see the possibility for abuse by CBP. In fact, recently the U.S. Court of Appeals for Ninth Circuit ("Ninth Circuit"), the federal appeals court that reviews the decisions by various federal trial courts in the Western states including California, Nevada, Arizona, and Washington, heard the case of a Canadian man who timely filed a petition for a writ of habeas corpus challenging CBP's expeditious removal of him based on the allegation that he was seeking to the enter the U.S. to work without proper permission.

Rather than considering the Canadian-national man's claim on the merits, the Ninth Circuit in Smith v. U.S. CBP agreed with the government that there was no jurisdiction to consider the relief sought because the man was not in custody at the time he filed his petition for a writ of habeas corpus with the relevant federal trial court. As a general rule, one must be in some type of custody by the government to be eligible for habeas-corpus relief. While it is true that the man was not in the physical custody of CBP following his expeditious removal, the Ninth Circuit could have found that his inability to obtain admission to the U.S. as a result of the five-year bar stemming from such expeditious removal amounts to a form of custody, in much the same way a parolee is still in custody despite being released from prison. However, the Ninth Circuit opted instead to find it was without the authority to review the man's claim and went a little farther in finding that it was without the authority even to refer the man's claim to an immigration court for review.

There is an adage shared frequently among attorneys that, "Bad facts lead to bad law." That the man lied to CBP, something to which he conceded, leads one to conclude that CBP did not necessarily overstep its bounds in his particular case. Had there been genuine abuse by CBP, then maybe the outcome would have been different, even though such an issue in and of itself should be found to be irrelevant to whether or not the Ninth Circuit has jurisdiction in the first place to hear the claim, because federal courts whether correctly or incorrectly sometimes interpret their authority more broadly when there are facts showing actual abuse by the government. Nevertheless, when a case of genuine abuse does arise in the future, this latest decision by the Ninth Circuit makes it all the more difficult for the affected foreign national to obtain justice. Foreign nationals concerned about whether they will have difficulty obtaining admission to the U.S. at a port of entry should consult with an expert immigration attorney before deciding what action to take.