What limits do INA sections 238 and 240 place on expedited removal and detention procedures?

1. What INA §238 actually permits — administrative expedited removal with limits

Section 238 empowers the Attorney General to order expedited removal of aliens convicted of certain aggravated felonies without the normal §240 hearing, allowing administrative proceedings and even special on‑site proceedings in correctional facilities, but the statute and implementing regulations explicitly permit the deciding Service officer to terminate expedited proceedings and initiate §240 removal proceedings when the record or the alien’s rebuttal raises a genuine issue of material fact or when the alien is “not amenable” to administrative removal ^{[1] [2]}.

2. What INA §240 guarantees — formal proceedings, rights, and relief

Section 240 provides the formal removal process before an immigration judge, where respondents may be represented by counsel, challenge charges of removability, pursue asylum, withholding, CAT protection and other forms of relief, and pursue administrative appeals and judicial review of final orders — protections that are typically unavailable in pure §238 administrative removal ^{[4] [5]}.

3. Detention rules that cut across both sections: mandatory custody, parole, and statutory exceptions

Aliens placed in expedited removal and “applicants for admission” are generally required to be detained pending determination and removal under the statutory and regulatory scheme, although DHS maintains parole authority for urgent humanitarian reasons or significant public benefit; if an alien establishes credible or reasonable fear of persecution, the process shifts into further screening and often into §240 or withholding‑only proceedings with attendant detention consequences ^{[6] [4] [7]}.

4. How conversion, fear screenings, and special populations limit expedited removal’s reach

Regulations and policy instruct that when an officer charges additional grounds of inadmissibility beyond the narrow expedited grounds, when a genuine material factual dispute exists, or when the alien indicates fear of persecution, expedited removal must be terminated and the alien referred to §240 proceedings or to withholding‑only processes — unaccompanied children, for example, are categorically not subject to expedited removal and are placed in custody of HHS and §240 proceedings ^{[2] [3] [5] [8]}.

5. Procedural safeguards and critiques: timing, standards of proof, and review

Although §238 allows a truncated administrative path, implementing regulations and practice advisories impose response windows, standards of proof, and opportunities to rebut; critics point to short reply windows, diminished access to counsel, and a higher risk of error in administrative removals, while the statutory architecture preserves some limits — e.g., habeas corpus review of detention and certain constitutional challenges remain available and the agency may convert to §240 if errors are evident ^{[9] [4] [7]}.

6. Administrative discretion and the practical boundary between §238 and §240

DHS and ICE retain broad discretion to apply expedited removal, to exercise parole, or to place individuals into §240 proceedings instead, and implementation guidance emphasizes considerations—ties to the U.S., criminal history, asylum timing—that guide whether an alien is processed administratively or in immigration court, meaning statutory authority for expedited removal exists but operationally is constrained by regulatory triggers and agency choice ^{[10] [4] [7]}.