Week 3: Expedited removal expansion is struck down
Immigration news, in context.
This is the third 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.
The Big Picture
Expedited removal decision
The News: A federal judge blocked the Trump administration from implementing a new regulation that would have allowed immigration enforcement officers to easily deport people who can’t prove that they have legal status or have been in the country for two or more years.
What’s happening?
Expedited removal (ER) became law in 1996, but it has never been implemented to the fullest extent allowed by statute, and has instead been slowly expanded various times over the years by executive action (more on that below).
In broad strokes, it’s an exception to the rules that otherwise grant immigrants due process if the government wants to deport them. Normally, removal proceedings are initiated by an official charging document, followed by at least one hearing before an immigration judge. Immigrants in these cases have the right to be represented by a lawyer (though, unlike in the criminal justice arena, the government is not required to provide them with a lawyer) and there are various forms of relief that they can seek.
Under expedited removal, an immigration agent — such as a Border Patrol officer or an ICE agent — can order an individual removed “without further hearing or review,” bypassing this entire process. There is an exception for migrants who make an asylum claim, though advocates have said immigration officers sometimes ignore these claims and put asylum-seekers into expedited removal proceedings.
This week, Judge Ketanji Brown Jackson of the U.S. District Court for the District of Columbia issued a preliminary injunction blocking the government from expanding eligibility for expedited removal to its full legal limit.
The new expansion mandates expedited removal for anyone questioned by immigration agents who could not prove legal entry into the United States, and couldn’t prove that they’ve been continuously present in the country for at least two years.
The administration had taken this step with an official notice in the Federal Register on July 23. On August 6, the American Immigration Council, the American Civil Liberties Union, and the law firm Simpson Thatcher & Bartlett LLP filed a lawsuit on behalf of Make the Road New York, La Unión Del Pueblo Entero, and We Count! — all community organizations with members who would be subject to the rule — against the acting heads of Homeland Security, ICE, CBP, and USCIS, as well as Attorney General William Barr.
Even though this expansion was technically put in place through the July notice, DHS had yet to actually develop rules for its rollout, prompting government lawyers to argue that there was no standing to sue since no one had actually been subject to the expanded definition yet.
The judge rejected this argument and issued an injunction whose general framework is becoming pretty familiar in the immigration litigation sphere: While the administration may have had the statutory authority to go in a certain direction, the way they want about it was wrong. She noted that there had been no public-comment period prior to the finalized rule being announced, and the government hadn’t laid out a particularly good reason why it had to go into effect immediately. Many similar injunctions against the Trump administration’s immigration policy rule-making have followed similar logic.
How did we get here?
Expedited removal was introduced as part of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996, a sweeping piece of legislation that, as Vox put it, “essentially created immigration enforcement as we know it today — where deportation is a constant and plausible threat to millions of immigrants.”
IIRAIRA drastically expanded which immigrants would be prioritized for deportation and made it harder for undocumented people in the U.S. to become “legal.” It was by all accounts an extremely punitive law that changed immigration enforcement as we know it.
For the first time, undocumented people apprehended anywhere in the country* could be quickly deported without a hearing if they couldn’t prove they had been in the U.S. for two continuous years.
The law makes an exception for people from “a country in the Western Hemisphere with whose government the United States does not have full diplomatic relations and who arrives by aircraft at a port of entry,” i.e., Cubans who fly to the U.S. The recent reestablishment of diplomatic relations between the U.S. and Cuba has made it harder for Cuban migrants to claim asylum in the U.S.
Although the 1996 law gave the federal government the authority to quickly deport undocumented immigrants who can’t prove in the U.S. for two continuous years, the government has largely chosen not to use it — until now. Instead, Homeland Security regulations have applied expedited removal to people who can’t prove they’re in the U.S. legally or have been in the U.S. for at least two weeks. (It has also been applied to people who arrived by sea and can’t prove they’ve been in the U.S. for at least two years, but the “wet foot, dry foot” policy meant that Cubans who arrived in the U.S. by sea were typically not subject to expedited removal anyway.)
Despite its relatively limited scope, tens of thousands of migrants have been sent back to their countries through expedited removal. In fiscal 2017, 35 percent of all deportations were done through expedited removal, according to federal data analyzed by the American Immigration Council. The practice peaked in fiscal 2013, when approximately 193,000 people — 43% of all immigrants removed from the country — were deported through expedited removal.
Expedited removal isn’t supposed to apply to asylum-seekers, but in 2014, Human Rights Watch found that several Hondurans deported in this way had expressed fear of returning to their home countries.
What’s next?
This decision was only an injunction, meaning that the case will remain before Judge Jackson, who has not issued a final ruling on the matter. In the meantime, the expedited removal status quo will remain. The administration may try to appeal this injunction to a higher court, as it successfully did in the case of the asylum ban injunction. To get it overturned — or to win this lawsuit — it will at some point likely have to lay out the exact policies and procedures that it will issue to its agents in their enactment of the new rule.
These details are especially crucial in the context of one of the defining characteristics of expedited removal: The burden of proof is on the individual, who must “affirmatively [show], to the satisfaction of an immigration officer” that they are not subject to it.
Essentially, it’s the reverse of the typical officer/suspect interaction. Instead of the government proving a suspect did something wrong, expedited removal requires the suspect to prove they aren’t doing anything wrong.
This is thorny given that, under expedited removal, an individual is detained until their removal or until a credible fear finding triggers an asylum process. They aren’t entitled to speak with an attorney or gather any additional evidence in the meantime. It’s not difficult to see how an expansion without careful safeguards would create a serious risk that immigrants who were present for longer than two years, those who were lawfully present, or even U.S. citizens would end up quickly deported without a full process, especially given how often citizens are deported even when placed into regular deportation proceedings.
Under the Radar
How ICE finds and arrests immigrants in so-called “sanctuary” jurisdictions
This week, Vox and the New York Times both published accounts detailing how immigrants in New York City and a small community in Washington state — places that have deemed themselves “sanctuary” jurisdictions — were ensnared by immigration authorities.
Both pieces are deeply reported and well worth your time. For a lot of readers, they also may raise the question of what a sanctuary city or sanctuary state actually means. The simplest answer is that “sanctuary city” (or sanctuary state, or county, or whatever) usually refers to a jurisdiction that prevents local law enforcement from directly collaborating with federal immigration enforcement through actions like information-sharing, questioning people stopped or arrested about their immigration status, and holding arrested people for ICE.
But that doesn’t mean ICE can’t arrest people in sanctuary jurisdictions. A 2017 report found that even though California’s sanctuary law, the most comprehensive in the country, reduced immigration arrests in the state, local law enforcement agencies managed to find ways around it. And even when local police aren’t helping ICE, the agency’s officers have access to public and private databases that help them identify and apprehend immigrants.
A federal judge scales back ICE detainers | LA Times
Last Friday, a federal judge in California issued a permanent injunction limiting ICE’s ability to issue detainers, which are requests for local law enforcement agencies to hold people for an additional 48 hours after they’re supposed to be released so they can be transferred into immigration custody.
The judge, Andre Birotte Jr. of the California’s Central District, prohibited ICE from relying entirely on databases to issue the detainers. The ACLU, which filed a class-action lawsuit against the federal government over the detainers, argued that the databases ICE relies on are so flawed that they often ensnare people who haven’t committed immigration infractions, including U.S. citizens.
Birotte’s decision affects detainers issued by ICE officers in California’s Central District — but it has nationwide implications, since a single ICE hub in Orange County sends out detainer requests to local law enforcement authorities in 43 states, plus Washington, D.C. and Guam. The decision also blocks ICE from requesting detainers from law enforcement agencies in states that haven’t explicitly allowed officers to honor these requests.
Acting USCIS Director Ken Cuccinelli rails against one jurisdiction that does not honor detainers
Judge throws out government’s new proposed child detention regulations
In the third legal blow to the Trump administration’s immigration policy agenda in just one week, U.S. District Judge Dolly Gee of the Central District of California struck down the administration’s attempt to institute new regulations to comply with what are known as the Flores Settlement standards. These standards govern the treatment of minors in U.S. immigration custody.
These actually aren’t part of a law per se. They’re a court settlement and consent decree reached in 1997 between attorneys for immigrant children and the federal government (named after one of the original plaintiffs of the 1985 lawsuit, then-15-year-old Jenny Flores.) Among other clearly delineated standards for treating migrant children, the most oft-cited are requirements that they be kept in the least restrictive possible setting; that they should generally be released when possible; and that they cannot be kept in regular immigration detention longer than 20 days. Instead, they’re supposed to be placed in facilities licensed by “an appropriate State agency,” which are typically children’s shelters. In 2015, a judge ruled that these rules extended not just to unaccompanied minors, but to all migrant children, including those who had arrived with their parents.
This has been the source of much hand-wringing by the administration; the prohibition against keeping families with children in indefinite detention together is partly what led to its much-criticized zero-tolerance policy of prosecuting parents and separating them from their children. After the courts ordered most such family separations to be stopped, officials have been trying to find other ways of processing family asylum claims without releasing families into the interior of the country, which they view as a “loophole” to immigration laws.
One response has been the Remain in Mexico/MPP program, which keeps families together by sending them all to Mexico to await their asylum processing. Another was this attempt to issue new, much less strict regulations. The government was essentially seeking to eliminate the 20-day release requirement by allowing itself to license its own facilities using ICE detention standards, which would allow them to keep parents and children in such detention together throughout their court proceedings.
Judge Gee roundly rejected this attempt, ruling that the new regulations were inconsistent with the terms of the settlement — which the government must continue to adhere to — and preventing them from putting the regulations into effect. The government will likely appeal, but it still has questions to answer, particularly around how it will keep children safe in these facilities, and where it would even plan to hold this many families.
Next Destination
What’s actually going to be in the DNA collection rule?
This week, the Trump administration announced it would issue a new rule permitting the collection of DNA from most, if not all, of the people in federal immigration detention.
Like the new expedited removal rule, the shift would actually bring the government more in line with authorities already available in existing laws, in this case the DNA Fingerprint Act of 2005. The law eliminated restrictions on DNA collection, permitting the government to collect, store, and put into a national criminal justice database the DNA profiles of anyone arrested or detained by the federal government. However, DHS regulations currently exempt immigration detainees with no pending criminal charges and those facing removal proceedings from inclusion in the program, which is most of the people in ICE and CBP custody.
Now, the government has signaled its intention to remove this exemption, theoretically letting it hoover up the personal DNA data of everyone who passes through its custody. There are a number of important unanswered questions about the eventual finalized regulation. Among them: Will the DNA data be kept indefinitely, for everyone? Will any class of immigration detainee — such as the unaccompanied minors that briefly pass through CBP custody — be exempted?
Driver’s license showdown?
In June, New York became the 13th state plus the District of Columbia and Puerto Rico to pass legislation permitting people without legal immigration status to obtain driver’s licenses. Unlike other jurisdictions where these bills have passed, however, in New York this licensing system is managed by county clerks, as opposed to employees of a central state DMV.
Promptly after the measure — which isn’t slated to take effect until Dec. 14 — was signed into law, several clerks announced that they would refuse to process applications for people who couldn’t prove that they had legal immigration status in the United States. Subsequently, the clerks for Erie and Rensselaer counties filed federal lawsuits asking for the state law to be declared unconstitutional, and an injunction to be issued in advance of its implementation.
Then, last month, six GOP House members from New York sent a letter directly to Attorney General Barr asking him to intervene in the matter by having the Justice Department conduct its own constitutional evaluation and perhaps support litigation to have the law blocked.
If it became the position of the Justice Department that granting such licenses is indeed unconstitutional, or if the clerks succeed in getting a judge to say so, it could have broad implications for the programs allowing undocumented immigrants to obtain licenses nationwide. Other local governments or officials could cite such precedent in their own lawsuits against the practice, and the Justice Department might start launching new legal attacks against other states and territories that allow the practice.
* an earlier version of this post read that individuals could be subject to expedited removal if they were found within 100 air miles of the border. It has been updated to clarify that the law allows for expedited removal to be applied anywhere in the country.