The Trump administration is planning to dramatically expand “fast-track” deportations, making hundreds of thousands of undocumented immigrants in the U.S. vulnerable to removal without going through immigration court proceedings.
“The effect of that change will be to enhance national security and public safety — while reducing government costs — by facilitating prompt immigration determinations,” reads the new notice to be published in the Federal Register on Tuesday. It “will enable [the Department of Homeland Security] to address more effectively and efficiently the large volume of aliens who are present in the United States unlawfully.”
The move, which strengthens the discretionary powers of Immigration and Customs Enforcement officers, comes a week after the administration rolled out a separate rule that essentially renders most non-Mexicans coming to the border ineligible for asylum.
“We’re in the middle of a very fast and furious few months in this administration’s immigration agenda,” said Sarah Pierce, a policy analyst at the nonpartisan Migration Policy Institute. “While most of the focus has so far been at the border, this change expands that focus to the interior.”
The notice gives immigration officers broad authority to place anyone who entered the United States without permission and has lived in the country continuously for up to two years in “expedited removal” proceedings.
Essentially this means people who are undocumented, and cannot prove that they’ve lived in the country for longer than two years, could be deported swiftly without appearing before an immigration judge. Many individuals picked up by ICE would not, therefore, typically have access to hearings, appeals or a judicial reviews for their legal claims as a result of this policy.
Expedited removal, which was created in 1996, currently applies only to immigrants encountered within 100 air miles of the U.S. land border, whom immigration authorities apprehend within 14 days of entry, or those who have arrived by sea and lived in the country for up to two years.
In fiscal year 2018, the notice said, ICE encountered 20,570 immigrants who would have been eligible for expedited removal under the new rules. But the Migration Policy Institute estimates that the total number of immigrants subject to expedited removal because of this expanded policy could reach 300,000.
That number could be an underestimate, as well. MPI’s Pierce points out that the “especially problematic” aspect of the expanded policy is that it would require undocumented immigrants to “affirmatively” demonstrate, “to the satisfaction of an immigration officer” if they’ve been in the country more than two years — something that might be difficult to do for a population that avoids paper trails and lives largely in the shadows. That means a lot more people than currently estimated could be caught in this expanded dragnet, Pierce said.
Kathryn Shepherd, national advocacy counsel at the American Immigration Council, has worked with families seeking asylum in ICE detention centers who are in expedited removal proceedings. In a 2017 report, she wrote about the perils of the expedited removal process for legitimate asylum seekers, arguing that it restricts them from accessing counsel and often delays the process by which they can gain protection in the U.S.
With this new policy, she fears, apart from asylum seekers and undocumented immigrants with long ties to the country, even people with legal status may be affected. “The immigrant communities in this country are already terrorized by all these [Trump administration] policies,” she said. “This policy in particular would serve to really chill immigrant communities; there will be the very real possibility that immigrants will be swept up who should not be.”
Advocates are saying that the expanded policy would, in effect, create a “show me your papers” nation — forcing immigrants, and even many U.S. citizens, to carry proof that they are not deportable.
In June, Buzzfeed News first reported that the administration had been considering this move, although immigrants’ rights groups and attorneys have been bracing for something like this since President Donald Trump took office in 2017. After a series of executive orders, a DHS memo at the time had issued guidance mentioning the possibility of expanding expedited removal.
“I am surprised it took so long,” said Theresa C. Brown, the director of immigration and cross-border policy at the Bipartisan Policy Center, who served in the Homeland Security Department under previous administrations.
DHS, in the notice, argues that “fully implementing expedited removal will help to alleviate some of the burden and capacity issues,” by cutting down on “time consuming removal proceedings,” suggesting that the recent migration surge at the southwest border is creating the need for expanding this policy.
Brown said previous administrations had also considered expanding the scope of expedited removal after upticks in migration, but kept it limited largely because of the “logistical and legal hurdles.” Assessing how immigrants may have entered and how long they may have lived in the country can prove difficult. (The reliance on expedited removal has, nevertheless, expanded over the past two decades under Republican and Democratic presidents.)
It’s still not clear how ICE agents will be directed to implement the new policy and whether immigrants will have any time and avenues to produce evidence extracting themselves from expedited deportation, Brown said. She expects the implementation to be haphazard given the administration’s track record on immigration.
“I think the biggest questions are operational,” she said. “They push forward policy changes without fully vetting the operational implications.”
The authority for the new policy draws from the Immigration and Nationality Act, which gives the secretary of Homeland Security the “sole and unreviewable discretion” to modify the scope of expedited removal.
The American Immigration Council and the American Civil Liberties Union have already vowed to sue. Legal pushback may come in the form of constitutional challenges arguing that expanded expedited removal violates due process rights that everyone in the United States, regardless of immigration status, is guaranteed. Or lawsuits may focus on the manner in which the policy will be carried out.
Omar Jadwat, director of the Immigrants’ Rights Project of the American Civil Liberties Union, said: “Under this unlawful plan, immigrants who have lived here for years would be deported with less due process than people get in traffic court. We will sue to end this policy quickly.”