In a recent decision, the Ninth Circuit concluded that there is jurisdiction to review the merits of a challenge to an “expedited removal order”. Smith v. CBP, ___ F.3d ____, 2014 WL 91915 (Jan, 9, 2014). Although the court ultimately rejected the petitioner’s merits argument, the case opens the door to future challenges by other individuals with different facts.
Under the “expedited removal” process, 8 U.S.C. §1225(b)(1)(A), an immigration officer at the border can issue an expedited order of removal against certain noncitizens applying to enter. This can be done immediately, while the person is at the border, and is completely at the discretion of the immigration officer if the officer believes that the person has made a false statement or does not have the proper immigration documents. The applicant is turned away and is also banished from coming back to the United States for five years.