Previously when someone was stopped at a port of entry, or picked up after crossing, if they expressed a fear of returning to their country of origin, they were frequently given a credible fear interview and placed into immigration court proceedings where they were able to plead their case to an immigration judge, unfortunately in 2026 that is usually no longer the case. Instead the Customs and Border Patrol Department of the US Government has become Judge, Jury and Executioner. CBP is detaining asylum seekers, moving them around between detention facilities so that it is very difficult for their families and attorneys to help them, interviewing them without an attorney present, deciding to deport them without ever speaking with an immigration judge, and then deporting them faster than most anyone can help them in any kind of meaningful way. It moves faster than immigration court, and in most cases an immigration judge plays no part in it at all. Seeing the machine clearly is the only way to see where the openings are. At Shillig Law we have experience in these cases and we have been able to leverage our knowledge and relationships to achieve positive results for our clients, but we have to move extremely fast, because there is absolutely no time to waste!
This article describes the general framework as of the date of publication. The statutes, the agency guidance, and the court decisions discussed below change often, and several are being actively litigated. Nothing here is advice about any particular person's situation.
The First Hours: What a CBP Encounter Legally Is
A person who arrives at the border, or who is apprehended after entering without permission, is treated in law as an applicant for admission subject to inspection. That is a different legal posture from being a respondent in a case before an immigration judge. There is no charging document filed with a court, no hearing date, and no right to appointed counsel.
Inspection can be referred to what officers call secondary inspection. There, an officer questions the person and, under the governing regulations, creates a written record of the person's sworn statement, which the person is asked to read or have read back and then sign. If the officer concludes that the fast-track removal provisions apply, the officer prepares and serves a written notice and order of removal. The officer creates it, the officer signs it, and the agency executes it.
That paperwork matters far beyond the room it is made in. What was asked, what was written down, and what was signed often becomes the entire record that any later reviewing body ever sees. For people who crossed without being inspected, this record interacts with a separate and rapidly shifting body of law on entry without inspection.
Expedited Removal: The Statute Behind Same-Day Removal
The authority is INA § 235(b)(1), codified at 8 U.S.C. § 1225(b)(1). It permits an immigration officer to order a person removed without a hearing before an immigration judge, and it is limited to two grounds of inadmissibility: fraud or misrepresentation, and lacking valid entry documents. Congressional Research Service analysis of border asylum procedure sets out both the authority and those limits.
Who is covered is not fixed by the statute alone. Congress gave the Secretary of Homeland Security discretion to designate categories of people within the statute's reach, bounded by a period of continuous physical presence in the United States. On January 24, 2025, DHS published a Federal Register notice titled Designating Aliens for Expedited Removal, expanding the category of people the agency may place in expedited removal. ICE later published written implementation guidance for that notice. The practical consequence is that this process is no longer confined to people encountered at the line itself.
The Fear Exception: The Only Off-Ramp Written Into the Statute
There is one exception inside the statute. A person placed in expedited removal who indicates an intention to apply for asylum, or a fear of persecution, must be referred to an asylum officer for a credible-fear determination instead of being removed immediately. Before that interview, the statute provides an opportunity to consult with a person of one's own choosing, at no expense to the government. This is where one of our Attorneys at the Shillig Law Firm can help by explaining to the CBP attorney that our client does in fact have a credible fear of persecution in their country of origin for their race, religion, political opinion, gender, national origin, or particular social group. But it is extremely difficult to accomplish this task with the right government attorney in connection with the facility that is currently holding the asylum seeker.
The screening question is whether there is a significant possibility that the person could establish eligibility for asylum. It is a threshold, not a decision on the asylum claim itself. DHS and the Department of Justice implement this through asylum-officer interviews with later immigration-judge review of negative findings, a structure the Government Accountability Office documented in its review of credible-fear procedures at the southwest border.
Two things are worth stating plainly. The referral is triggered by the person expressing fear. And the statute does not dictate the words an officer must use to ask. Whether fear was expressed, and whether it was recorded, is frequently the contested fact in these cases. Our asylum and refugee practice begins from that record.
If There Is a Prior Removal Order, This Is Not Expedited Removal
A person who already has a removal order from an earlier case is usually on a different track: reinstatement under INA § 241(a)(5), 8 U.S.C. § 1231(a)(5), and its implementing regulation. The old order is revived rather than a new one issued. The fear screening that goes with reinstatement is a reasonable fear screening, which applies a higher standard than credible fear and leads to a narrower set of protections.
This distinction is missed constantly, including by people who should know better. It changes the screening standard, the relief available, and where and how review is sought.
Detention: Why There May Be No Bond Hearing at All
Detention authority under § 1225(b) is not the same as the discretionary detention authority under § 1226(a) that allows an immigration judge to consider bond. People in the credible-fear pipeline are subject to a statutory detention command, and the main discretionary release valve is parole under INA § 212(d)(5)(A) and its regulation. A published practice advisory on detention under INA § 235 maps that scheme and the routes to release.
In 2025 the Board of Immigration Appeals issued Matter of Yajure Hurtado, 29 I&N Dec. 216 (BIA 2025), addressing the detention authority applicable to people who entered without inspection and their eligibility for a bond hearing before an immigration judge. Whether longtime residents held under § 235(b) may seek a bond hearing remains the subject of active federal litigation, including litigation arising within the Fifth Circuit, which covers Texas. Anyone describing this as settled is ahead of the record. Where a criminal case is also in play, the custody question gets harder still, and the interaction between the two systems is the subject of our work on ICE holds and detention.
Federal Court Review: A Very Small Window, and a Clock
Congress deliberately narrowed the courthouse door. Under 8 U.S.C. § 1252, habeas review of an expedited removal order is limited to three questions: whether the petitioner is an alien, whether the petitioner was in fact ordered removed under the expedited removal provision, and whether the petitioner can prove lawful permanent resident, admitted-refugee, or granted-asylee status. The same section provides that there shall be no review of whether the person is actually inadmissible or entitled to any relief from removal.
Systemic challenges to written policies implementing expedited removal go somewhere else entirely: exclusive jurisdiction lies in the U.S. District Court for the District of Columbia, and such a challenge must be filed within 60 days of the challenged policy's implementation. There is also a separate claimed-status review process for people asserting they are permanent residents, refugees, or asylees. And habeas petitions generally belong in the district of confinement, which matters a great deal when someone is transferred between facilities.
Thuraissigiam and the Constitutional Floor
In Department of Homeland Security v. Thuraissigiam, the Supreme Court held in 2020 that these habeas restrictions did not violate the Suspension Clause or the Due Process Clause as applied to a noncitizen apprehended shortly after crossing the border without authorization. The reasoning was tied to recency and proximity to entry. As CRS analysis noted, the decision upheld only limited judicial review and left the scope of review for people with longer presence in the United States unresolved. That is why length of time in the country is a legally loaded fact here, not a sympathy fact.
What Changed in 2025 and 2026
Three threads matter, and all should be re-checked before anyone relies on them.
- The challenge to the January 2025 designation was litigated in the District of Columbia as Make the Road New York v. Huffman/Noem, No. 1:25-cv-00190. In June 2026, a divided D.C. Circuit panel issued a published opinion in No. 25-5320 rejecting that challenge and allowing DHS to apply expedited removal to people apprehended away from the border. An earlier expansion had been addressed by the same court in Make the Road New York v. Wolf in 2020, which treated the designation decision as committed to broad statutory discretion.
- Separately, the January 20, 2025 presidential proclamation restricting entry and asylum access at the southern border was held unlawful by the district court in July 2025, and the D.C. Circuit issued a published opinion in No. 25-5243 in April 2026.
- Habeas practice for people in immigration detention continues to develop in the circuits, including a published Fifth Circuit opinion in No. 25-20496.
Postures change through en banc petitions, Supreme Court action, and fights over the scope of remedies. Any statement about these cases needs an explicit "as of" date attached to it.
The Facts and Documents That Actually Move These Cases
Given how narrow the review is, cases turn on raw material, gathered fast:
- The person's A-number and the facility where they are held. ICE operates a public online detainee locator; transfers make the district of confinement a moving target. What makes these cases even more complicated is that a traditional Notice To Appear or (NTA) is not produced and so it is extremely difficult to find out the Alien Number assigned to someone that is coming to America for the first time seeking asylum. Once we are able to obtain the Alien Number, since an NTA was not produced for the case we are unable to enter our appearance as the immigration lawyer of our client in the Immigration Court online system called ECAS. So instead we send a G28 to the CBP Attorney responsible for the case, and the CBP officer in charge of the detention facility where our client is located.
- Contemporaneous evidence of continuous physical presence in the United States — leases, pay records, school and medical records, dated correspondence.
- Any proof of lawful permanent resident, admitted-refugee, or granted-asylee status, because that is one of the few questions a habeas court may reach.
- Whether fear of return was expressed, to whom, and whether it appears in the sworn statement.
- A reachable family contact, and a request for the DHS record of the encounter.
Fees, forms, and processing times change constantly and should be confirmed with the agency directly. If a family member is detained and you do not know which track they are on, that question — expedited removal, reinstatement, or regular proceedings — is the first thing to establish, and it depends on facts only a consultation can sort out. Our deportation defense practice exists for exactly that stage. If you or a family member is coming to the USA for the first time seeking asylum and they have never been to America before, the best possible thing that you can do is contact us before you or your family member travels to the USA border. But if you or a family member have already been detained, the second best thing you can do is immediately contact our law firm and contract our services to defend against deportation/expedited removal.