Expedited removal is deportation without a judge. An immigration officer decides that a person is inadmissible for lack of documents or for fraud, issues an order, and the person is removed. There is no hearing, in most cases no appeal, and a five-year bar on returning. Congress created it in 1996 for arrivals at the border. For twenty years it was confined to people caught within 100 air miles of a land border and within 14 days of entry.
On January 21, 2025, the first full day of the new administration, DHS extended it to the entire country and to anyone unable to prove two years of continuous presence. The notice, published at 90 FR 8139, took effect that evening with no comment period. It has been in litigation ever since, and for the moment it is blocked.
What the expansion does
It reaches anyone inadmissible for fraud or misrepresentation, or for lack of valid entry documents, who was never admitted or paroled and who cannot show an officer two years of continuous physical presence. Two groups were newly designated: people encountered more than 100 miles from a land border with less than two years in the country, and people encountered within 100 miles with more than 14 days but less than two years.
The burden of proof sits with the individual, not the government. An officer who is not satisfied can issue the order on the spot.
Who is protected
United States citizens, permanent residents and people in valid status are not subject to expedited removal. The difficulty is that the process is so abbreviated that mistakes about exactly those people are the recurring risk; a citizen without identification in a raid is not, at that moment, obviously a citizen.
Anyone who expresses a fear of persecution or torture, or an intent to apply for asylum, must be referred for a credible fear interview. A negative finding can be reviewed by an immigration judge, in principle within 24 hours and in any event within seven days, though the review is limited to the fear claim. A positive finding puts the person into ordinary removal proceedings, with a judge, a hearing and a right of appeal.
The litigation
Make the Road New York v. Noem was filed in the District of Columbia on January 22, 2025, the day after the notice, by the ACLU and the New York Civil Liberties Union. The claims are constitutional due process, the INA itself and the Administrative Procedure Act.
On August 29, 2025, Judge Jia Cobb stayed the expansion nationwide, finding it likely violated due process. The government appealed and asked the D.C. Circuit for an emergency stay of her order. On November 22 the appeals court refused, in opinions running to about a hundred pages. It heard argument on the merits on December 9. A decision is pending.
The effect, as of this writing, is that expedited removal remains confined to its pre-2025 scope. DHS can still use it at the border and within the old limits. It cannot use it against a person picked up in Chicago who has been here eighteen months.
That will hold until the D.C. Circuit rules. It could rule either way, and the case will almost certainly go further.
What to carry, whatever happens
The two-year rule makes documentation the whole defense. Anyone without status who has been in the country more than two years should be able to prove it at short notice.
- Leases and utility bills with your name and dates.
- Pay stubs, tax returns and bank statements covering the period.
- School records for you or your children, medical records, church or community records.
- Dated mail and receipts. Photographs with dates help; social media posts, less so.
Keep copies in two places, one of them with a person outside your home who can produce them quickly. Officers are not obliged to wait while a relative searches a closet.
What to say
If you are detained, say clearly and at once that you fear returning to your country, if that is true. That sentence triggers the credible fear process and takes you out of the fast track. Ask for a lawyer and a phone call. Do not sign anything you do not understand; an expedited removal order signed in confusion is very hard to undo.
The policy's premise is that two years of presence can be assessed on a sidewalk. The courts have so far disagreed. Until they finish disagreeing, the prudent assumption is that the sidewalk assessment will one day return, and the file that proves your years here is the thing that matters.