Expedited Removal and Credible Fear Interviews: A 2026 Massachusetts Guide to INA 235(b)(1), the Two-Year Presence Rule, and the Make the Road v. Noem Litigation

Why Expedited Removal Matters in 2026

Expedited removal is the fastest deportation procedure in U.S. immigration law. A single Department of Homeland Security officer can issue a removal order in hours, without a hearing before an immigration judge and without an attorney appointed at government expense. For many people, the only protections that stand between an ICE encounter and a flight back to the home country are the two-year physical presence rule and the credible fear interview.

The stakes climbed dramatically in early 2025. On January 21, 2025, Acting Secretary Benjamine C. Huffman signed a notice expanding expedited removal to the full geographic and temporal scope authorized by Congress in 1996. That notice was published in the Federal Register on January 24, 2025 at 90 Fed. Reg. 8139. It allows DHS to use expedited removal against any noncitizen encountered anywhere in the United States who cannot affirmatively show two years of continuous physical presence. Before the 2025 expansion, the controlling 2004 designation limited interior expedited removal to noncitizens who satisfied both conditions: encountered within 100 air miles of an external land border and present in the United States less than 14 days.

The expansion has been challenged in court. On August 29, 2025, Judge Jia M. Cobb of the U.S. District Court for the District of Columbia stayed the 2025 expansion in Make the Road New York v. Noem, 1:25-cv-00190 (D.D.C.), concluding the new policy likely violates Fifth Amendment due process. On November 22, 2025, the U.S. Court of Appeals for the D.C. Circuit issued a 100-page set of opinions largely denying the government's motion for a stay pending appeal. As of the date of this article, the appeal is still being litigated. The legal landscape can shift in days. Anyone who could be subject to expedited removal needs a current plan and current counsel.

This guide explains how expedited removal works in 2026, what the two-year presence rule requires, what to do at a credible fear interview, and the concrete steps Brazilian, Haitian, Cape Verdean, Salvadoran, Honduran, Guatemalan, Venezuelan, and other immigrant families in Framingham, Brockton, Everett, Lowell, Marlborough, Mattapan, Milford, Randolph, Stoughton, Lawrence, Chelsea, East Boston, Worcester, Dorchester, New Bedford, Boston, and across the Commonwealth should take this week.

The Statute: INA 235(b)(1) and 8 U.S.C. 1225(b)(1)

Section 235(b)(1) of the Immigration and Nationality Act, codified at 8 U.S.C. 1225(b)(1), authorizes an immigration officer to order the removal of a noncitizen who is determined to be inadmissible under INA 212(a)(6)(C) (fraud or misrepresentation, including a false claim to U.S. citizenship) or INA 212(a)(7) (lack of valid entry documents) without a hearing before an immigration judge.

The statute carves out four categories of people who must be referred for further screening rather than ordered removed on the spot:

• Noncitizens who indicate an intention to apply for asylum.
• Noncitizens who express a fear of persecution or torture, or a fear of return to their country.
• Noncitizens who claim U.S. citizenship.
• Noncitizens who claim to be lawful permanent residents, refugees, or asylees who have been previously admitted in those statuses.

The first two trigger a credible fear interview with USCIS under INA 235(b)(1)(A)(ii) and 8 CFR 208.30. The last two trigger a claimed status review before an immigration judge under 8 CFR 235.3(b)(5).

The 2025 Designation: From the Border to the Interior

Congress did not write expedited removal as a border-only procedure. INA 235(b)(1)(A)(iii) gives the Secretary of Homeland Security sole and unreviewable discretion to designate categories of noncitizens to whom expedited removal may be applied. The 2025 designation exercised that authority to its statutory maximum.

Under the January 2025 designation, expedited removal can now reach noncitizens who:

• Are inadmissible under INA 212(a)(6)(C) or 212(a)(7).
• Were not admitted or paroled into the United States.
• Cannot affirmatively show, to the satisfaction of an immigration officer, that they have been physically present in the United States continuously for the two-year period immediately preceding the determination of inadmissibility.
• Are encountered anywhere in the United States (no longer limited to the combined 100-air-mile zone and less-than-14-day presence rule of the 2004 designation).

Significantly, the expansion also reaches people who entered with parole that was later terminated, including many recent humanitarian parolees, if they cannot show two years of presence after parole was revoked.

The Two-Year Physical Presence Rule

The single most important protection against expedited removal in the interior is the two-year continuous physical presence rule. Under 8 CFR 235.3(b)(1)(ii), a noncitizen who entered without inspection but who establishes continuous physical presence in the United States for the two-year period immediately prior to the determination of inadmissibility shall be detained for proceedings under INA 240 before an immigration judge. Section 240 proceedings include rights expedited removal does not: the right to a hearing, the right to apply for cancellation of removal, voluntary departure, adjustment of status, asylum, withholding, Convention Against Torture protection, and other relief, the right to appeal to the Board of Immigration Appeals, and the right to seek federal court review.

The burden of proof is on the noncitizen. The officer is not required to investigate. If you cannot show two years of presence, the officer can write a removal order.

What Evidence Establishes Two Years of Presence?

The regulation does not give an exhaustive list, but USCIS and ICE guidance, the American Immigration Council practice advisories, and AILA practice alerts identify the following as commonly accepted evidence:

• Leases, deeds, and rental agreements showing your name and dates of occupancy.
• Utility bills, cable bills, internet bills, and cell phone bills in your name.
• Bank statements, bankbooks, and credit card statements.
• School records, transcripts, report cards, and enrollment letters for you or your children.
• Employment records, pay stubs, W-2s, 1099s, and offer letters.
• Tax returns, including ITIN tax filings.
• Medical records, vaccination records, and prescription receipts.
• Church and religious organization records, baptism certificates, and attendance records.
• Money order receipts and remittance records.
• Insurance policies, auto insurance, health insurance, and life insurance.
• Letters and affidavits from employers, landlords, clergy, teachers, and community members.
• Photographs with dates, social media posts with dates, and email or text message records.
• Your own credible sworn testimony, which can corroborate documentary evidence.

Build a Two-Year Presence Packet Now

The moment to gather this evidence is before an ICE encounter, not during one. I recommend every client who could be subject to the 2025 expansion build a two-year presence packet today, store it in a safe place, and give a copy to a trusted family member, attorney, or community organization. The packet should include at least one document from each calendar month of the past 24 months when possible, with at least three categories of proof (housing, financial, and one other) for each year.

What Happens at an ICE Encounter

Form I-867A and Form I-867B

If ICE believes you are subject to expedited removal, the officer is required by 8 CFR 235.3(b)(2)(i) to create a sworn statement on Form I-867A (Record of Sworn Statement in Proceedings under Section 235(b)(1)) and Form I-867B (Jurat). The officer is supposed to read you the statement, give you a chance to read it yourself, allow you to make corrections, and have you sign and initial each page and each correction.

The Immigration Policy Tracking Project documented that DHS modified Form I-867B in early 2025 to remove the standard advisals about fear of return and the questions about whether you fear harm if returned. DHS began using a revised Form I-867A on or around February 11, 2025. The practical effect: officers are no longer required by the form itself to ask whether you fear return. If you have a fear of return, you must voice it yourself, clearly, and on the record.

Form M-444 and the Right to Consult

If you express a fear of return or an intention to apply for asylum, the officer must give you Form M-444, Information About Credible Fear Interview, under 8 CFR 235.3(b)(4)(i). Form M-444 explains the purpose of the credible fear interview, your right to consult with another person prior to the interview at no cost to the government, and your right to have that consultation be confidential.

Form I-860

The actual removal order is Form I-860, Notice and Order of Expedited Removal under Section 235(b)(1) of the Act. Read it carefully. The form lists the specific grounds of inadmissibility, the country of removal, and the consequences of removal under INA 212(a)(9)(A), which generally include a five-year bar to reentry under INA 212(a)(9)(A)(i) for a first expedited removal and a 20-year bar under INA 212(a)(9)(A)(ii) for a second or subsequent removal. A conviction for an aggravated felony triggers a permanent bar.

The Credible Fear Interview

The Legal Standard

The credible fear standard is set out at INA 235(b)(1)(B)(v): a significant possibility, taking into account credibility, that the noncitizen could establish eligibility for asylum under INA 208 or withholding of removal under INA 241(b)(3). USCIS asylum officers also screen for credible fear of torture, which protects against return under the Convention Against Torture (8 CFR 208.30(e)(3)).

The significant possibility standard is meant to be low. It is a screening threshold, not a final adjudication. The asylum officer is asking whether your claim has a significant possibility of succeeding before an immigration judge in full asylum proceedings, not whether you will ultimately win.

The Interview Itself

Under 8 CFR 208.30(d), the interview is supposed to be nonadversarial and separate from the general public. You have the right to consult with a person of your choosing prior to the interview, including an attorney, and the consultation must be at no expense to the government. The asylum officer is required to elicit all relevant and useful information bearing on your eligibility, and to consider your credibility, the consistency of your statements, and country conditions evidence.

Detention is the default. INA 235(b)(1)(B)(iii)(IV) provides that pending the credible fear determination and any review, the noncitizen shall be detained. Parole during credible fear screening is governed by 8 CFR 212.5(b), and current ICE practice in 2026 has narrowed parole significantly. Plan to be detained.

If You Receive a Positive Credible Fear Finding

A positive credible fear finding does not give you asylum. It moves you out of expedited removal and into one of two tracks. Historically, positive credible fear cases were placed in regular Section 240 proceedings before an immigration judge, where the noncitizen could file Form I-589 (Application for Asylum and for Withholding of Removal) and litigate the full claim. In recent years, DHS and EOIR have also used asylum merits interviews before USCIS under 8 CFR 208.9 for some positive credible fear cases. Which track applies depends on current policy and your specific circumstances.

If You Receive a Negative Credible Fear Finding

Under INA 235(b)(1)(B)(iii)(III) and 8 CFR 1003.42, you have the right to request review by an immigration judge. The IJ review must be completed as expeditiously as possible, to the maximum extent practicable within 24 hours, but in no case later than 7 days after the asylum officer's negative determination. The review can be conducted in person, by telephone, or by video conference. You have the right to be represented by counsel at the IJ review, at no cost to the government, but you must arrange counsel yourself and quickly.

If the IJ vacates the negative finding, your case moves out of expedited removal. If the IJ affirms the negative finding, the expedited removal order becomes administratively final and DHS can remove you. Federal court review of the credible fear finding itself is sharply limited by INA 242(a)(2)(A) and 242(e), although the Supreme Court's decision in Department of Homeland Security v. Thuraissigiam, 591 U.S. 103 (2020), held that habeas review is not constitutionally required for credible fear determinations.

Special Categories and Exceptions

Unaccompanied Children

Unaccompanied children, as defined at 6 U.S.C. 279(g)(2), are statutorily exempt from expedited removal under the William Wilberforce Trafficking Victims Protection Reauthorization Act of 2008 (TVPRA 2008), Public Law 110-457. Under 8 U.S.C. 1232(a)(5)(D) and INA 235(b)(1), an unaccompanied child from a noncontiguous country must be placed in Section 240 proceedings and transferred to the custody of the Office of Refugee Resettlement, not expedited removal.

Lawful Permanent Residents, Refugees, and Asylees

Under 8 CFR 235.3(b)(5), a noncitizen who claims to have been admitted as a lawful permanent resident, refugee, or asylee is entitled to a claimed status review by an immigration judge before any expedited removal order can be issued. If you have ever had any of those statuses, say so immediately and clearly.

U.S. Citizens

A claim to U.S. citizenship, even a claim that you might be a derivative or acquired citizen through a parent or grandparent, requires DHS to refer you for a claimed status review before an immigration judge. Expedited removal of a U.S. citizen is unlawful, but it has happened. If there is any possibility you derived citizenship through a parent under INA 320 (Child Citizenship Act of 2000) or acquired citizenship at birth under INA 301 or 309, make the claim, get the supporting documents to your family, and ask for the claimed status review.

Reinstatement of Removal

If you have a prior order of removal, deportation, or exclusion, expedited removal is not the only fast-track procedure DHS may use. Reinstatement of removal under INA 241(a)(5) is a separate procedure that reinstates a prior order without a new immigration court hearing. Reinstatement has its own protections, including the reasonable fear interview under 8 CFR 208.31. If you have a prior order, the analysis is different and the timeline can be even shorter.

What to Do This Week

If you or someone in your family could be subject to expedited removal under the 2025 designation, take these steps this week:

• Build a two-year presence packet. Gather documents that establish continuous physical presence in the United States for the past 24 months. Make at least two complete copies. Keep one in a safe place at home, leave one with a trusted family member or attorney, and consider scanning the entire packet to a secure cloud account you can access from your phone.
• Carry proof of presence. Carry recent dated proof of presence on your person every day. A current utility bill, a recent pay stub, and a school registration letter for your child are a reasonable starter set.
• Memorize key phrases. If you are ever questioned by ICE, you have the right to remain silent and the right to an attorney. If you have a fear of return, say so clearly: "I am afraid to return to my country. I want to request asylum. I want to speak to an attorney." Repeat these statements. Do not sign anything you do not understand.
• Make a family plan. Designate an emergency contact, give that person a copy of your A-number, immigration documents, and the contact information for your immigration attorney. Pre-arrange childcare and guardianship in case of detention. Massachusetts law allows parents to designate a caregiver authorization for school and medical decisions; the May 2026 legislation filed by Governor Healey would expand this further.
• Know how to find each other. If a family member is detained, you can search the ICE Online Detainee Locator System at locator.ice.gov using A-number or name and country of birth. The detainee's location can change within hours.
• Get current legal advice. Expedited removal law is changing month to month. A consultation today is worth more than a referral tomorrow. If cost is a concern, the Massachusetts Immigrant and Refugee Advocacy Coalition (MIRA), Greater Boston Legal Services, the Political Asylum/Immigration Representation (PAIR) Project, Catholic Charities, and the Massachusetts Law Reform Institute can connect you with low-cost or pro bono counsel.

Frequently Asked Questions

A Word to Massachusetts Families

The combination of the 2025 expansion of expedited removal, the May 2025 and September 2025 ICE surge operations in Massachusetts, and the May 28, 2026 Healey statewide ICE guidance has created a moment of intense uncertainty and intense protection. The federal government has expanded fast-track removal authority. State leadership has built new structural protections, including the ICE misconduct portal at mass.gov/fedmisconduct and legislation filed in May 2026 to extend protected status to courthouses, schools, child care programs, hospitals, and churches. Federal courts have stayed major pieces of the expansion. None of this is settled.

What is settled is the practical reality on the ground: an ICE encounter can end in a removal order within hours if you are not prepared. The two-year presence packet, the family plan, the memorized phrases, and the relationship with a competent immigration attorney are the four things that will most reliably keep a family together. Build them this week.