(C)  For Non-LPR Aggravated Felons.[168]  If the noncitizen is not a lawful permanent resident, or a conditional resident, and is convicted of an aggravated felony, s/he is subject to expedited administrative removal by the DHS directly, without ever appearing before an immigration judge.[169]  A noncitizen in this situation is conclusively presumed to be deportable from the United States,[170] and is ineligible for all forms of discretionary relief.[171]  The noncitizen may be subjected to this process even if the aggravated felony conviction occurred prior to “admission” into the United States,[172] and even if the noncitizen was never admitted.[173]  These decisions are nearly unreviewable.[174]  Several courts have rejected challenges to this statute.[175]

 

            Once regular removal proceedings have begun before an immigration judge, the DHS does not appear to have the authority to compel the judge to terminate those proceedings so that the DHS can begin expedited removal proceedings.  The DHS has the authority to terminate expedited removal proceedings and initiate regular removal proceedings, rather than expedited proceedings, for aggravated felons.[176]

[168] For more on this, see Merlin, Nicholas, Comment, Immigration policy and the expedited removal rule: “equality for some, justice for none,” 16 St. Thomas L. Rev. 163-185 (2003).

[169] INA § 238(b), 8 U.S.C. § 1228(b).

[170] INA § 238(c), 8 U.S.C. § 1228(c).

[171] INA § 238(c)(5), 8 U.S.C. § 1228(c)(5).  The only form of immigration relief made available under the regulations is withholding of removal, INA § 241(b), 8 U.S.C. § 1231(b).  8 C.F.R. § 238.1(f)(3).  Relief under the Convention Against Torture should also be available, as this is not a form of “discretionary” relief.

[172] Bamba v. Elwood, 252 F.Supp.2d 195 (E.D.Pa. Mar. 27, 2003) (expedited removal under INA § 238(b), 8 U.S.C. § 1228(b) applies to one convicted of aggravated felony prior to admission to the United States).

[173] United States v. Hernandez-Vermudez, 356 F.3d 1011 (9th Cir. Jan. 26, 2004); Bazan-Reyes v. INS, 256 F.3d 600, 605 (7th Cir. 2001).

[174] See INA § 242(e), 8 U.S.C. § 1252(e).

[175] See, e.g., Flores-Ledezma v. Gonzales, 415 F.3d 375 (5th Cir. June 27, 2005) (rejecting claim that Attorney General’s statutory discretion to choose between expedited removal proceedings and general removal proceedings violates due process); United States v. Rangel De Aguil, 308 F.3d 1134 (10th Cir. 2002) (lack of neutral adjudicator does not violate due process).

[176] 8 C.F.R § 238(d)(2)(iii).

BIA

CONVICTION " NATURE OF OFFENSE " ELEMENTS OF OFFENSE " SENTENCE ENHANCEMENT " MILITARY CONVICTION
Matter of Chavez-Alvarez, 26 I. & N. Dec. 274 (BIA Mar. 14, 2014) (an sentencing enhancement element listed in a specification in the Manual for Courts-Martial, that must be pled and proved beyond a reasonable doubt, is the functional equivalent of an element of a criminal offense for immigration purposes).

EXPEDITED REMOVAL " PROSECUTORIAL DISCRETION
Matter of ERM & LRM, 25 I&N Dec. 520 (BIA 2011) (INA 235(b)(1)(A)(i), 8 U.S.C. 1225(b)(1)(A)(i), setting criteria for expedited removal, does not limit DHS prosecutorial discretion to place arriving aliens in removal proceedings).

Second Circuit

VISA WAIVER PROGRAM
Shabaj v. Holder, 602 F.3d 103 (2d Cir. Apr. 12, 2010) (noncitizen who entered with fraudulent Italian passport pursuant to Visa Waiver Program has waived right to removal proceedings, even where noncitizen was not Italian and not eligible for visa waiver program).

Third Circuit

RELIEF - VISA WAIVER PROGRAM
Bradley v. Attorney General of the U.S., 603 F.3d 235 (3d Cir. Apr. 22, 2010) (rejecting arguments that removal order is void under Woodby v. INS, 385 U.S. 276, 286 (1966), because the record lacks "clear, unequivocal, and convincing evidence" that noncitizen waived right to contest his removal under the Visa Waiver Program ("VWP"), 8 U.S.C. 1187, that there was no valid waiver of right to contest removal under the VWP because waiver was not "knowing and voluntary," and that notwithstanding any VWP waiver, application for a marriage-based adjustment of status may be renewed before an immigration judge under 8 U.S.C. 1255(c)(4)), agreeing with Bayo v. Napolitano, 593 F.3d 495, 507 (7th Cir.2010).

CRIM DEF - SENTENCE - SUPERVISED RELEASE - DISTRICT COURT HAS NO AUTHORITY TO TOLL PERIOD OF SUPERVISED RELEASE AFTER DEPORTATION UNTIL RETURN
United States v. Cole, 567 F.3d 110 (3d Cir. May 20, 2009) (district court had no authority to order that the supervised release term of illegal reentry sentence be tolled as long as defendant remained outside of the United States following his possible removal after his prison term, because tolling is not a "condition" of supervised release within the meaning of 28 U.S.C. 3583(d)).

Ninth Circuit

IMMIGRATION OFFENSES " ILLEGAL REENTRY " COLLATERAL ATTACK " EXPEDITED REMOVAL
United States v. Raya-Vaca, ___ F.3d ___, 2014 WL 5802287 (9th Cir. Nov. 10, 2014) (expedited administrative removal order under INA 235 violated due process where immigration officer failed to comply with 8 C.F.R. 235.3(b)(2)(i), and no prejudice need be shown).

JUDICIAL REVIEW -- EXPEDITED REMOVAL " HABEAS CORPUS " CUSTODY REQUIREMENT REMOVAL PROCEEDINGS -- EXPEDITED REMOVAL " HABEAS CORPUS " CUSTODY REQUIREMENT
Smith v. U.S. Customs and Border Protection, 741 F.3d 1016 (9th Cir. Jan. 9, 2014) (affirming district courts denial of government's motion to dismiss habeas corpus action for lack of jurisdiction, since alien was not in custody, as required for federal jurisdiction over his 2241 habeas petition, and alien was ordered removed under the expedited removal statute, and thus was not entitled to hearing under statute providing for limited habeas review of expedited removal orders).

REMOVAL PROCEEDINGS " STIPULATED REMOVAL ORDER " DUE PROCESS VIOLATION
United States v. Ramos, 623 F.3d 672, 2010 WL 3720208 (9th Cir. Sept. 24, 2010) (stipulated removal, under 8 C.F.R. 1003.25, violated due process where noncitizen was not informed of right to appeal in a language the noncitizen could understand and failure to obtain proper waiver of counsel also violated Fifth Amendment rights; however, no prejudice was shown for purposes of challenging illegal re-entry conviction by challenging underlying removal since noncitizen was ineligible for any form of relief).

IMMCON - EXPEDITED REMOVAL
De Rincon v. Dep't of Homeland Sec., 539 F.3d 1133, 2008 WL 3863863 (9th Cir. Aug. 21, 2008) (circuit court lacked jurisdiction to hear collateral attack on reinstated expedited removal order; district court lacked jurisdiction to consider habeas petition challenging expedited removal order).

Other

OVERVIEW " EXPEDITED REMOVAL
Gary Mead ICE Memorandum on strategic use of expedited removal. http://www.dhs.gov/news/2011/05/24/statement-gary-mead-executive-associate-director-enforcement-and-removal-operations

REMOVAL PROCEEDINGS - STIPULATED REMOVAL ORDERS IN CRIMINAL CASES
Federal authorities are increasingly deporting illegal immigrants through a fast-track program that bypasses court hearings, an effort by the federal government to save money, reduce backlogs and clear detention beds. (Anna Gorman, Concerns Arise Over Fast-Track Deportation Program, Los Angeles Times (Mar. 2, 2009), http://www.latimes.com/news/local/la-me-deport2-2009mar02,0,5186477.story.) "The number of detainees in California and across the nation who agreed to be deported without first seeing a judge jumped fivefold between 2004 and 2007, from 5,481 to nearly 31,554. In the first half of 2008, 17,445 speedy deportation orders were signed." (Ibid.) Almost half of all of these orders after 1999 were issued in Lancaster, California, Los Fresnos, Texas, and Eloy, Ariz. Immigration attorneys question whether those who agree to deportation under this program have been accurately informed of their options. Jayashri Srikantiah, the director of the Stanford Law School immigration clinic, said some detainees are pressured to sign the deportation forms even though they may have defenses against deportation or be eligible for asylum or green cards. About 95% of the people who agreed to the speedy deportations since 1999 are not represented by attorneys, she said. (Ibid.)

EXPEDITED REMOVAL " ARGUMENT FOR CHALLENGING EXPEDITED REMOVAL VIA HABEAS CORPUS
"The ideal time to file a habeas petition under the theory outlined in this article would be while the petitioner was detained by CBP pending execution of the expedited removal order." David A. Isaacson, Mar. 5, 2011. http://www.cyrusmehta.com/news.aspx?SubIdx=ocyrus201135115520