Are President Trump’s Expanded Expedited-Removal Rules Legal? A Clear Guide to the Law and the Stakes

Overview: This opinion piece explains the legal and practical implications of the administration’s renewed use of expedited removal — a process Congress created in 1996 to allow rapid removal of noncitizens who were inadmissible at entry. It traces the policy’s origins, the statutory framework, recent executive action, pending litigation, and the real-world impact on people and the immigration court system.

Background

Expedited removal traces its origins to summary exclusion practices developed in response to the Mariel boatlift of the early 1980s, when roughly 125,000 Cubans and 30,000 Haitians arrived in South Florida without valid entry documents. At that time, noncitizens seeking admission without proper documentation generally had a right to a hearing before an immigration judge, could appeal adverse decisions to the Board of Immigration Appeals, and could seek further review in the federal courts. They also could not be removed while appeals were pending.

Why expedited removal was created

In June 1989 the General Accounting Office reported there were only 69 immigration judges — a shortage that made it impractical to provide full hearings for large influxes of arrivals, like those during the Mariel crisis. Although the immigration courts have since expanded to more than 600 judges, the system remains overwhelmed; the pending caseload has grown dramatically in recent years, from roughly 225,846 pending cases at the end of January 2017 to over 3.4 million pending matters as of the end of August in the most recent reporting.

Statutory framework

Congress created expedited removal in the Illegal Immigration Reform and Immigrant Responsibility Act of 1996. The statute authorizes removal without a hearing for arriving noncitizens who are inadmissible for lack of valid documents or who sought admission by fraud or misrepresentation. But the law preserves an important exception: anyone who expresses a fear of persecution or torture must be given a credible-fear screening. If that screening establishes a credible fear, the person is entitled to a hearing before an immigration judge and to appeal adverse rulings to the Board of Immigration Appeals.

Key legal decisions and agency discretion

In DHS v. Thuraissigiam (2020), the U.S. Supreme Court held that expedited removal did not violate the Constitution when applied to an immigrant apprehended shortly after an illegal crossing, noting that such a person has the statutory rights Congress provided. The statute also gives the Department of Homeland Security (DHS) discretion to apply expedited removal to certain individuals who are present in the United States but "have not been admitted or paroled" and who "have not affirmatively shown" continuous physical presence for the prior two years. The law further vests the Homeland Security secretary with the authority to designate additional classes of noncitizens for expedited procedures, language that has been described as giving the secretary substantial, and in some respects unreviewable, discretion.

Recent expansions and actions

The authority to expand expedited removal was first exercised by the administration in July 2019, though only a limited number of removals occurred under that expansion. On Jan. 20, 2025, the executive order titled Protecting the American People Against Invasion (Executive Order 14159) directed the DHS secretary to "take all appropriate action" to designate additional classes of noncitizens for expedited removal. Shortly thereafter, the department announced that it would implement the expedited removal provisions "to the fullest extent authorized by Congress," stating that the expansion would help address the large volume of noncitizens present unlawfully and ensure prompt removal of those not entitled to relief.

Litigation and constitutional concerns

As expected, the expansion prompted immediate litigation. In Make the Road New York v. Noem, plaintiffs argue the expansion unlawfully exposes people living anywhere in the United States to the risk of family separation and deportation without a hearing; a court granted a stay of the expansion while the case proceeds. The legal outcome is uncertain. The Supreme Court has recognized that constitutional protections apply to every noncitizen within the United States — including those who entered unlawfully — but it has also held that the process due can vary depending on the strength of an individual’s ties to the country.

Practical implications and irony

One central tension is practical: the statute applies expedited removal only to people who were inadmissible at the time of entry, and inadmissibility at entry is what renders someone removable. The primary relief available to such individuals is asylum, and expedited removal preserves access to a credible-fear screening and asylum proceedings when a credible fear is shown. Yet assessing how much connection an individual has to the United States — a fact-specific inquiry that affects due-process analysis — would itself require individualized hearings. That irony highlights the limits of a summary process intended to avoid hearings.

Moreover, the immigration court system faces a severe backlog and limited resources. Even if many new cases were allowed hearings, those individuals would join a queue that already contains millions of pending matters — delaying resolution for years in many instances.

Conclusion

The expanded use of expedited removal raises both legal and practical questions. Statutorily, DHS has broad authority to designate classes of noncitizens for expedited procedures, subject to constitutional constraints. Practically, the system’s backlog and the need for individualized determinations in borderline cases create real-world constraints that complicate simple portrayals of the expansion as either a necessary enforcement tool or as a wholesale erosion of rights. Courts will play a central role in resolving those tensions.

About the author: Nolan Rappaport served as an Executive Branch immigration law expert detailed to the House Judiciary Committee and later worked as immigration counsel to the Subcommittee on Immigration, Border Security, and Claims. Earlier in his career he drafted decisions for the Board of Immigration Appeals for 20 years.