Biden moves to expand Expedited Removal for families—07-30-21

Immigration news, in context

This is the eighty-ninth edition of BORDER/LINES, a weekly newsletter by Felipe De La Hoz and Gaby Del Valle designed to get you up to speed on the big developments in immigration policy. Reach out with feedback, suggestions, tips, and ideas at BorderLines.News@protonmail.ch.

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This week’s edition:

  • In The Big Picture, we examine the administration’s effort to begin using expedited removal against migrant families.

  • In Under the Radar, we explore how ICE prosecutors are largely ignoring guidance on the use of prosecutorial discretion.

  • In Next Destination, we look at Texas Gov. Greg Abbott’s apparently illegal executive order targeting the transport of migrants in the state.

The Big Picture

The news: In a short statement posted to its website on Monday, the Department of Homeland Security announced that it would be placing migrant families with children who it cannot expel under Title 42 in expedited removal proceedings in an effort to speed up border processing.

What’s happening?

As we’ve stated on numerous occasions before, the Biden administration has decided to keep the Title 42 order initially instituted over a year ago by former President Trump and his advisor Stephen Miller. The supposed pandemic-response restriction permits the government to essentially close the border to people (and potentially goods) that present a risk of introduction of communicable disease. Since the very early days of the coronavirus pandemic, it has been used to summarily expel migrants arriving at the southern border without documentation, their intent to apply for asylum notwithstanding.

The administration has maintained or created a few carve-outs, choosing to voluntarily continue abiding by an earlier judicial order that prevented the expulsion of unaccompanied minors and establishing a limited program to exempt particularly vulnerable migrants. Not all of its expulsion decisions have been guided by its own administrative policy: starting earlier this year, the Mexican government reportedly began refusing to accept certain expelled families, forcing U.S. border authorities to process them for asylum and, given internal legal restrictions on the ability to hold minors in custody with their parents, release them into the country to await immigration court dates.

This latest move appears to be an effort to wrest back the ability to quickly remove some of these families without having to go through the full, sometimes yearslong process to adjudicate an asylum claim. We dove into expedited removal when the Trump administration moved to expand the program to its full statutory limit, and we encourage you to read that breakdown for more detail. In summary, 8 U.S.C. § 1225(b)(1) specifically gives immigration agents the power to place “an alien” who is either arriving in the United States or “who has not affirmatively shown, to the satisfaction of an immigration officer, that the alien has been physically present in the United States continuously for the 2-year period” prior to a determination of inadmissibility, in expedited removal.

What this means is that families can be deported—which is legally distinct from an expulsion in that it carries much more severe and lasting consequences, including certain prohibitions on return—almost immediately without the right to go before an immigration judge. The immigration agent themself is empowered to make this determination and can conduct a removal in a matter of hours if they so choose. As we’ll discuss in more detail below, the program has expanded over the years, most dramatically so last year under Trump.

Expedited removal is not an absolute power, as migrants can still petition for asylum. In the event that they do, or indicate a fear of persecution, per 1225(b)(1)(A)(ii) the immigration officer “shall refer the alien for an interview by an asylum officer.” While the Trump administration attempted to allow CBP agents themselves to conduct credible fear interviews, this initiative was blocked by a federal judge last year (U.S. District Judge Richard Leon memorably described the effort as “Poppycock!” in his ruling.) This means that those who are referred for credible fear screenings will at least be able to have one with a real Citizenship and Immigration Services asylum officer.

The trouble is, under the law, migrants are not entitled to legal representation for this screening, and are subject to mandatory detention until the process is complete. A positive credible fear finding sends their case to standard removal proceedings before an immigration judge, but a negative finding is an almost guaranteed path to a fast deportation. While migrants are able to request a review of the negative finding before an immigration judge, this is merely a reevaluation of the asylum officers’ decision and not a full asylum process. Plus, as with most things in the immigration court system, they have to know to ask for it, which is doubtful if they don’t have legal representation.

The same is true for the initial asylum claim; while practically every single family arriving at the southern border now is intending to seek asylum, they must actively communicate this to the arresting CBP officers or risk being immediately deported under expedited removal. Of course, the person who gets to decide whether migrants sufficiently conveyed a fear of persecution or an intent to seek asylum for the purposes of triggering a credible fear review are these CBP officers (specifically Border Patrol for those crossing between ports of entry), a group not exactly known for particularly accommodating stances towards asylum seekers.

How we got here

Expedited removal has been on the books since 1996, when it was introduced as part of the Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA). IIRIRA was a sweeping piece of legislation—in short, it expanded the scope of who could be deported, made deportations easier to carry out, and drastically increased detention. For most of its history, expedited removal only existed in a limited capacity. It was first applied to people apprehended at the border; in 2004, it was expanded to include people apprehended within 100 miles of the border who couldn’t prove that they had been in the country for longer than 14 days. 

Expedited removal was only expanded to its full legal capacity under the Trump administration, which in 2020 introduced a policy directive instructing ICE officers to fast-track the deportations of anyone who they determined was not in the country legally and hadn’t been present in the U.S. for at least two years. (The Trump administration first issued the executive order expanding expedited removal in 2017, and DHS attempted to start the expansion in 2019, but the actual policy change was tied up in litigation for some time.) For the first time, immigration officers could place anyone apprehended anywhere in the country—not just in the so-called 100-mile border zone—into expedited deportation proceedings. The expansion permitted not just Customs and Border Patrol officers but ICE to make ER determinations as well. The full expansion had been enjoined in the case of Make the Road New York v. McAleenan (later v. Wolf) in 2019, but the injunction was overturned last year and the new rules went into effect. The Biden administration doesn’t appear to have moved to shift them back, meaning that the expanded expedited removal policy remains on the books, though its use doesn’t appear to have dramatically expanded.

As we noted above, the Biden administration didn’t reverse Trump’s expansion of expedited removal, even as it began to undo—or claimed it would eventually undo—other Trump-era policies. The question is why the current administration is suddenly deciding to use expedited removal now, and why it’s targeting families in particular. 

Last week, we wrote about Texas governor Greg Abbott’s “Operation Lone Star,” a response to an increase in asylum seekers—including families—at the border. In October, the first month of this fiscal year, immigration officers stationed at the border encountered 4,634 families at the border. (Because of the way expulsions work, it’s unclear how many, if any, of these were repeat encounters.) Of those, just 413 were allowed to enter the U.S. to file an asylum claim; the rest were expelled under Title 42. Compare that to last month, when border officers encountered family units 50,015 times (again, it’s unclear how many of these were repeat encounters) and allowed 41,945 of those into the country to seek asylum. Title 42 expulsions are still ongoing, but they’re largely affecting single adults. (Another clarification: a group of relatives all over the age of 18 would be considered a group of single adults, not a family unit.)

The fact that Biden is using expedited removal on families rather than reversing the policy to its pre-Trump scope has angered advocates, who say that it will limit asylum seekers’ access to due process. The administration’s decision to apply expedited removal to families reflects a shift in who is crossing the border. For most of modern U.S. history, most migrants who crossed the southern border were men traveling alone, often from Mexico and often for work. Expedited removal was supposed to be a way of quickly deporting people who crossed without authorization—but as the American Immigration Council has noted, previous studies have found that immigration officers have pressured people who expressed a fear of persecution to withdraw their asylum claims, and in some cases haven’t even asked if people apprehended at the border fear persecution in their country of origin before placing them into expedited removal proceedings.

What’s next?

The announcement did not lay out any particular timeline for this renewed utilization of expedited removal to target migrant families, though no additional bureaucratic steps need to be taken; the administration already possesses the authority to do this. Logistically, things might get complex insofar as the law calls for mandatory detention of people being processed for expedited removal, meaning that all families detained and processed under the program would in theory be kept in family detention as their credible fear screenings go forward. This flies in the face of the administration’s supposed effort to end family detention, an initiative that had already been significantly pared down. In response, it’s entirely possible that the administration might have to reopen one of the family residential centers or otherwise expand its family detention capacity, a move that will no doubt be poorly received by advocates and potentially the Democratic electorate writ large.

The administration was already considering a plan to allow asylum officers to directly adjudicate cases, but under that effort, those denied would at least still have the opportunity to appeal their case to an immigration judge as opposed to effectively reaching the end of the road. Plus, asylum officers would be empowered to affirmatively issue asylum, as opposed to simply certifying credible fear and passing along the case to the immigration courts, where applicants are forced to build a case in an adversarial setting facing a trained government attorney who will try to knock their arguments down.

It’s not clear why the administration is choosing to utilize expedited removal instead of attempting an implementation of the former program, which at least seems more protective of due process rights and the particular vulnerabilities inherent in the population targeted. For legal purposes, a deportation under expedited removal is the same as any other deportation, meaning that it becomes its own ground of inadmissibility for future immigration applications and can trigger a series of consequences for migrants attempting to return. Unlike people turned back under Title 42, whose interaction with the immigration system is sometimes not even recorded and who in all cases are free to attempt another asylum application, an expedited removal may be just as fast but a far more serious outcome.

Continuing a long and proud tradition of enacting immigration restrictions under the guise of, paradoxically, protecting migrants, the DHS announcement claimed that the use of expedited removal comes due to the fact that unlawful border crossings are “dangerous” and “Biden-Harris Administration is working to build a safe, orderly, and humane immigration system.” This is hardly surprising given the general tenor of the administration’s immigration approach so far, perhaps best exemplified by Harris’ entreaties to “not come” during a visit to Guatemala. The idea is that discouraging humanitarian migration is actually the more humanitarian approach, as it prevents migrants from undertaking dangerous journeys that have a limited probability of success.

That reality is of course self-reinforcing: the administration actively makes the journey more dangerous, and it is itself the entity that severely restricts the odds of success. Recently, despite overwhelming pressure, it decided to maintain Title 42 for the time being, citing a preoccupation with the Delta variant of the coronavirus (never mind that Delta is already the dominant strain in the U.S. and migrants are getting vaccinated at much higher rates than the general population in the states they’re coming through.) This effort also appears to be part of the preparations for when Title 42 is eventually terminated and the administration will suddenly face large numbers of migrants who have been unable to enter throughout the time the order has been in place and will overnight be permitted to tender asylum claims without fear of expulsion. The robust use of expedited removal is a way to achieve rapid-fire removals all the same.

Under the Radar

Application of ICE prosecutorial discretion is haphazard

Earlier this summer, the Biden administration instructed ICE prosecutors to use their discretionary powers to postpone or drop certain immigrants’ cases. The move was supposed to limit the deportations of noncitizens with strong ties to the U.S., those who have clear avenues for relief under immigration law, and those deemed to pose little or no threat to public safety. But a recent report by ProPublica’s Dara Lind reveals that few ICE prosecutors are adhering to the guidance, which was issued in late May, and are instead continuing business as usual.

In this case, business as usual means that the kinds of prosecutions the guidance was intended to prevent are continuing apace. According to the ProPublica report, prosecutors’ decisions can’t be appealed and often appear arbitrary. Many ICE field offices haven’t issued written operating procedures regarding the memo, and no prosecutors have agreed to review currently open cases and contacted people who could be affected by the memo. 

Next Destination

Justice Department may challenge Texas’s ban on transporting migrants

Texas Governor Greg Abbott issued an executive order this week banning the transportation of migrants within state borders. Under the order, Texas state troopers are instructed to stop any vehicle if they have “reasonable suspicion” that it’s being used to transport migrants who have been released from Customs and Border Protection custody. (It’s already illegal to knowingly transport unauthorized migrants who haven’t been apprehended by federal authorities; Abbott’s order makes it illegal to transport migrants who have already been processed by immigration authorities and have pending hearings in immigration court.) Abbott’s order is ostensibly a public health measure; he claims it’s due to a rise in coronavirus cases in Texas, which is noteworthy since this week, he issued another executive order barring governments in the state from implementing mask or vaccine mandates.

Abbott’s migrant transport ban has little to do with public health or curbing the spread of Covid, but it’s yet another stunt designed to make the Texas governor look tough on unauthorized immigration—one that could seriously affect the day-to-day operations of organizations that aid migrants. Nonprofits such as Catholic Charities regularly help migrants get to their final destination by scheduling travel and having volunteers drive them to bus stations or airports; Abbott’s order effectively makes it illegal to do so. And if it stays in place for long, it’s likely that the affected nonprofits, migrants themselves, or the Biden administration will sue. On Thursday, the day after the order was issued, Attorney General Merrick Garland sent Abbott a letter urging him to rescind the order or risk a lawsuit.