There are very limited defenses available to issuance of an expedited removal order. They are as follows:
- A foreign national cannot be subject to an expedited removal if that person was lawfully admitted or paroled into the United States.
- A person with a valid claim to status as a lawful permanent resident (LPR), refugee,
asylee, or U.S. citizen cannot be subject to expedited removal. The officer is required to verify the person’s status in ICE systems. If the officer cannot, he must take statement from the foreign national and then send the case for review before an IJ. This is not a full removal hearing, but limited in scope only to the foreign national’s claim to status. The judge will not consider other relief and will not review the order itself but for the status of the foreign national. It will generally occur within seven days of the date CBP files the proper document with the Executive Office for Immigration Review (EOIR).
- If ERO or CBP attempts to include other charges are in the order, then removal
proceedings pursuant to section 240 of the Act are required.
At a land crossing, the orders are issued at the port of entry, often within hours. At airports, the orders are typically issued in secondary inspection. Arriving aliens do not have the right to an attorney. However, if there is an existing attorney-client relationship and the attorney has an executed G-28 ready to fax or email to CBP, some ports or officers are more willing to talk to counsel, at the port or officer’s discretion. However, if there is no pre-existing attorney/client relationship, it is often next to impossible to assist a foreign national facing an expedited removal at an airport.