Contiguous Territories: The Expanded Use of Expedited Removal in the Trump Era
Maryland Journal of International Law, June 2018, Forthcoming
22 Pages Posted: 7 Feb 2018 Last revised: 6 May 2018
Date Written: January 23, 2018
The Immigration and Nationality Act (INA) contains a little-known provision that permits the physical return of individuals who enter from “contiguous territories” (i.e., Mexico or Canada) pending their removal proceedings before a United States immigration judge. The statute, interestingly, only applies to those who enter from those countries and there is no requirement that the person actually be a citizen or national of either Mexico or Canada. Furthermore, the provision is embedded within the “expedited removal” section, INA § 235, 8 USC § 1225, but importantly the person subjected to the contiguous territories provision is not “deported” immediately but made to wait outside the U.S. during his judicial removal proceedings. There is thus a “legal fiction” created by the statutory scheme whereby a person is “in” the U.S. for purposes of jurisdiction over his or her INA § 240 removal proceedings, while technically and actually residing outside its territory. This article considers the serious legal problems implicated by this statutory provision and its implementation. Among the topics considered are possible legal challenges in federal court, among other issues, such as international legal authority, potential conflicts with other domestic U.S. statutory provisions and further options available to Mexico or other countries seeking redress.
Keywords: contiguous territories, Immigration, expedited removal, deportation, enforcement, legal fiction, paradox, international law, transnational remedies, human rights, Donald Trump
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