The Congressional pages note:
The federal government has broad authority
over the admission of non-U.S. nationals (aliens) seeking to enter the
United States. The Supreme Court has repeatedly held that the government
may exclude such aliens without affording them the due process
protections that traditionally apply to persons physically present in
the United States. Instead, aliens seeking entry are entitled only to
those procedural protections that Congress has expressly authorized.
Consistent with this broad authority, Congress established an expedited
removal process for certain aliens who have arrived in the United States
without permission.
In general, aliens whom immigration authorities seek to remove from the United States may challenge that determination in administrative proceedings with attendant statutory rights to counsel, evidentiary requirements, and appeal. Under the streamlined expedited removal process created by the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 and codified in Section 235(b)(1) of the Immigration and Nationality Act (INA), however, certain aliens deemed inadmissible by an immigration officer may be removed from the United States without further administrative hearings or review.
INA Section 235(b)(1) applies only to certain aliens who are inadmissible into the United States because they either lack valid entry documents or have attempted to procure their admission through fraud or misrepresentation. The statute generally permits the government to summarily remove those aliens if they are arriving in the United States. The statute also authorizes, but does not require, the government to apply this procedure to aliens who are inadmissible on the same grounds if they have been physically present in the country for less than two years.
Immigration authorities currently apply expedited removal in more limited fashion than authorized by statute—in general, the process is applied strictly to covered aliens (1) apprehended when arriving at a designated port of entry; (2) who arrived in the United States by sea without being admitted or paroled into the country by immigration authorities, and who had been physically present in the United States for less than two years; or (3) who were found in the United States within 100 miles of the border within 14 days of entering the country, who had not been admitted or paroled into the United States by immigration authorities. Nevertheless, expedited removal has accounted for a substantial portion of the alien removals each year. And in July 2019, DHS announced that it would expand expedited removal within the broader framework of INA Section 235(b)(1) to eligible aliens apprehended in any part of the United States who have not been admitted or paroled by immigration authorities, and who have been physically present in the country for less than two years. A federal district court, however, has enjoined the implementation of this expansion pending a legal challenge.
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