FAQs Regarding Important Immigration/Nationality Topics
Immigration Nationality FAQs
- What is expedited removal?
- Who does it apply to?
- How has expedited removal been applied?
- What does Trump’s expedited removal executive order say?
- What has the Secretary of Homeland Security done to implement the order?
- Are there situations in which someone who has been here for less than two continuous years and who was not lawfully admitted can avoid expedited removal?
- Is the Trump administration’s expansive use of expedited removal lawful?
- What are the practical effects of the new expedited removal rule?
- Who does the new expedited removal rule not apply to?
- What is birthright citizenship?
- What does the Birthright Citizenship Executive Order purport to do and whom will it impact?
- What does the Executive Order not do?
- Is the Executive Order unconstitutional?
- If a child is born after February 19, 2025 without at least one parent who is a U.S. citizen or Lawful Permanent Resident, what will their status be?
- What is a “sanctuary city”?
- When did New York City first pass laws to define the scope of cooperation with federal immigration authorities?
- What legislation as New York City passed regarding cooperation with federal immigration authorities?
- Who has the power to amend the City legislation?
- Do these laws prohibit Immigration and Customs Enforcement (ICE) from making arrests in New York City?
- Are there certain locations where ICE cannot arrest people?
Expedited Removal FAQs
What is expedited removal?
The Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA) established expedited removal. It provides that immigration officers can order the expedited removal of certain categories of noncitizens without “further hearing or review,” i.e. without going before an immigration judge. 8 U.S.C. § 1225(b)(1)(A)(i). An expedited removal order cannot be appealed, and typically carries a five-year bar to reentry.
Under federal law, to be subject to expedited removal, an individual must:
- Be a noncitizen;
- Have resided in the United States for less than two continuous years;
- Have not been lawfully admitted or paroled into the United States; and
- Have made fraudulent representations in connection with their entry to the United States or have lacked requisite entry documents at the time of their application for admission.
Who does it apply to?
Noncitizens who entered the United States but did not present themselves to immigration officials at what are known as “ports of entry” have not been lawfully admitted to the United States.
How has expedited removal been applied?
During the Biden administration, the expedited removal process applied to noncitizens apprehended within 100 miles of the border who had been in the United States for under 14 days. Between March 2022 and January 21, 2025, expedited removal applied to individuals arriving at ports of entry and individuals apprehended within 100 miles of a land border who were unable to demonstrate continuous physical presence in the United States for at least 14 days, as was the case prior to January 2019.
What does Trump’s expedited removal executive order say?
President Trump’s Executive Order, Protecting the American People Against Invasion, directs the Secretary of the Department of Homeland Security to “take all appropriate action” to effectuate the relevant provisions of the IIRIRA and “to use all other provisions of the immigration laws or any other Federal law” “to ensure the efficient and expedited removal of aliens from the United States.”
What has the Secretary of Homeland Security done to implement the order?
On January 21, 2025, Benjamine Huffman, the acting Secretary of Homeland Security, issued a new rule that extends expedited removal to noncitizens who have been in the United States for less than two continuous years and who are located anywhere in the United States.
Are there situations in which someone who has been here for less than two continuous years and who was not lawfully admitted can avoid expedited removal?
Yes. If the individual indicates an intent to apply for asylum or a fear of prosecution, federal law requires that the individual be given the ability to demonstrate their credible fear of returning to their home country, which generally occurs through an interview with an asylum officer. The interview is called a Credible Fear Interview (CFI). 8 U.S.C. § 1225(b)(1)(A)(ii). If the individual sufficiently demonstrates their fear of persecution in the CFI, then they can apply for asylum and present their case before an immigration judge.
Is the Trump administration’s expansive use of expedited removal lawful?
Yes. Under federal law, only a narrow group of individuals are subject to expedited removal: (1) noncitizens, (2) who have resided in the United States for less than two continuous years, (3) who have not been admitted or paroled, and (4) who engaged in fraud in connection with their entry to the United States or lacked the requisite documents for entry at the time of application for admission.
The Trump administration’s aggressive use of expedited removal risks sweeping in people who have been in the United States for longer than two years or who are otherwise not subject to expedited removal. The expansion is being challenged in Make the Road New York v. Huffman, No. 25-cv-00190 (D.D.C. filed Jan.22, 2025).
What are the practical effects of the new expedited removal rule?
According to data from the NYC Comptroller, it is estimated that there are 500,000 undocumented New York City residents. Because the rule gives immigration officers so much discretion, and because it puts the burden on noncitizens to prove they have been in the country for more than two years, it is highly likely that the rule will sweep up noncitizens who have resided in the United States for more than two years.
Who does the new expedited removal rule not apply to?
The new rule does not apply to unaccompanied children, applicants for admission under the waiver program, U.S. citizens, lawful permanent residents, asylees, & refugees. Undocumented individuals who have been here for more than two years can choose to carry proof of continuous presence, but they should consult with legal counsel about what documents are appropriate.
Birthright Citizenship FAQs
President Trump issued an Executive Order entitled “Protecting the Meaning and Value of American Citizenship” on 1/20/25 purporting to end birthright citizenship. As of this date of this document, that Executive Order has been preliminarily enjoined in several different pending lawsuits.
What is birthright citizenship?
Birthright citizenship is the principle that every baby born in the United States of America is a U.S. citizen. Birthright citizenship means a child born in the U.S. is a citizen regardless of their parents’ immigration status. The U.S. is one of many countries that has adopted birthright citizenship.
What does the Birthright Citizenship Executive Order purport to do and whom will it impact?
The Executive Order directs an end to birthright citizenship. Under the Order, the following people will not be able to claim U.S. citizenship:
- Babies born in the U.S. on or after February 19, 2025 and
- Whose mother is unlawfully present or temporarily present, and whose father is not a U.S. citizen or lawful permanent resident.
The Order contains significant ambiguities, and does not speak directly to the children of mothers with a renewable lawful status, (for example, Deferred Action for Childhood Arrivals or Temporary Protected Status), but suggests that any temporary status is not enough to result in a child having U.S. citizenship.
What does the Executive Order not do?
The Order did not take away U.S. citizenship from anyone – including children without at least one parent who is a U.S. citizen or Lawful Permanent Resident – who already had it before February 19, 2025.
Is the Executive Order unconstitutional?
Yes. The Fourteenth Amendment to the U.S. Constitution, ratified in 1868, guarantees the citizenship of all children born in the United States (with an extremely narrow exception of children of foreign diplomats) regardless of race, color, or ancestry. This amendment was proposed as a way of overruling the Supreme Court’s notorious Dred Scott v. Sanford decision, which had held that the descendants of enslaved persons could not be U.S. citizens. The Citizenship Clause of the Fourteenth Amendment provides that “[a]ll persons born or naturalized in the United States and subject to the jurisdiction thereof, are citizens of the United States.” U.S. Const. amend. XIV, § 1.
In United States v. Wong Kim Ark, the Supreme Court affirmed that children born in the United States to noncitizen parents are citizens under the Fourteenth Amendment’s Citizenship Clause. 169 U.S. 649 (1898). Following Wong Kim Ark, Congress codified birthright citizenship in a statute with language mirroring the Fourteenth Amendment. See 8 U.S.C. § 1401(a).
If a child is born after February 19, 2025 without at least one parent who is a U.S. citizen or Lawful Permanent Resident, what will their status be?
As of now the Order has been enjoined and is therefore not applicable. If the Order were to take effect, children born after the effective date without at least one parent who is a U.S. citizen, Lawful Permanent Resident, or otherwise lawfully and not-temporarily present would not have lawful immigration status in the U.S. Furthermore, the Order would render children effectively stateless: a child born in the U.S. who is deemed to be a noncitizen under the Order likewise might not be recognized as a citizen under the laws of their parents’ country or countries of origin.
Sanctuary City FAQs
What is a “sanctuary city”?
The term “sanctuary city” usually refers to a city that has passed a policy that limits or defines the extent to which the city government will share information relating to noncitizens and cooperate with federal immigration law officers.
When did New York City first pass laws to define the scope of cooperation with federal immigration authorities?
On August 7, 1989, Mayor Edward Koch signed Executive Order 124. The executive order prohibited New York City officers and employees from transmitting information about noncitizens to federal immigration officers unless:
- the disclosure was required by law;
- the immigrant had given the agency the express right to disclose the information; or
- the immigrant was suspected of engaging in criminal activity.
The order was reissued by Mayors David Dinkins and Rudolph Giuliani.
What legislation as New York City passed regarding cooperation with federal immigration authorities?
In November 2014, Mayor Bill de Blasio signed into law Introductions 486-A and 487-A, which limit the circumstances under which the Department of Corrections and the New York Police Department may honor federal immigration and customs enforcement detainers. See N.Y.C. Admin. Code §§ 9-131 and 14-154. A detainer is a request to detain a person for possible future deportation.
Under this law, New York City can only honor the requests if the detainer is accompanied by a judicial warrant and the individual has been convicted of a violent or serious crime or is a match on a terrorist screening database. Intro 486-A also prevents Immigration and Customs Enforcement (ICE) from maintaining an office on Rikers Island.
In 2017, Local Law 228 was passed which amended the Administrative Code. See N.Y.C. Admin. Code §§ 10-178, It states among other things that “[n]o agency shall subject its officers or employees to the direction and supervision of the secretary of homeland security primarily in furtherance of immigration enforcement.” It also provides that no city resources should be used in immigration enforcement.
Who has the power to amend the City legislation?
Only the New York City Council can amend the laws regarding NYC’s relationship with ICE.
Do these laws prohibit Immigration and Customs Enforcement (ICE) from making arrests in New York City?
The laws passed by New York City only relate to the cooperation that New York City employees and agencies can provide ICE. ICE can still arrest immigrants in New York City.
According to ICE Enforcement and Removal Operations Statistics (www.ice.gov/spotlight/statistics) for fiscal year 2024, in New York City ICE arrested:
- 2,096 immigrants who had been convicted of a crime;
- 575 immigrants who had pending criminal charges;
- 25,756 immigrants who had other immigration violations.
Are there certain locations where ICE cannot arrest people?
For more than a decade ICE and Customs and Border Protection issued guidance that prohibited ICE from making arrests in “sensitive locations” such as schools and houses of worship. That guidance has now been rescinded.
Under New York State law (the Protect Our Courts Act) ICE cannot make a civil arrest in or on the property where a New York State courthouse is located. ICE also cannot make a civil arrest while a person is going to, remaining at, or returning from court unless ICE has a warrant signed by a Judge. The notice rescinding guidance did indicate that ICE would respect state laws regarding arrests at courthouses.
On January 21, 2025, the Department of Homeland Security stated that immigrants will “no longer be able to hide in America’s schools and churches to avoid arrest.” Several churches and religious groups have now challenged the rescission of guidance as to arrests in places of worship.
New York City Public Schools do not permit non-local law enforcement agents, including ICE personnel, to enter schools—except when they have a valid judicial warrant, court order or subpoena authorizing their admission.