Week 52: Incoming rollout of expanded expedited removal program
Immigration news, in context.
This is the fifty-second 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 take a look at the administration's plans to implement a new nationwide expedited removal program, which could allow agents to very quickly deport people.
In Under the Radar, we discuss further information that has emerged in the case of forced medical procedures at an ICE detention center, including the claim that five hysterectomies were recommended and three were performed.
In Next Destination, we examine yet another policy targeting the H-1B visa program, after an attempted restriction by executive action was partly enjoined last week.
The Big Picture
The news: The administration has issued new policy directive to ICE Enforcement and Removal (ERO) agents, implementing an expansion of expedited removal that had been planned for months but blocked by the courts until recently.
What’s happening?
According to an internal email reviewed by Bloomberg Government’s Shaun Courtney, ICE has begun implementing the expanded expedited removal policy that was green-lit when the D.C. Circuit Court lifted a lower court injunction that had blocked the proposed new rules from going into effect last year.
In one of our first BORDER/LINES dispatches, we discussed this initial injunction against the attempt to expand expedited removal to its full statutory limit. For a detailed look at the statute and its history, we encourage you to read that as a primer. As a brief recap: expedited removal proceedings are deportation proceedings effected under an entirely different statute than “regular” deportation cases, where a noncitizen respondent has the right to legal representation and presents their case before a Justice Department immigration judge.
Under 8 U.S.C. § 1225(b)(1), an “alien” who is either “arriving in the United States” or has not been admitted or paroled and “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 immediately prior” to the officer’s determination can be deported almost immediately, without the right to see an attorney, go before an immigration judge, or appeal the immigration officer’s decision. The law itself gives the executive branch broad discretion in terms of how it wants to apply this statute, and historically it’s chosen to take a narrower approach.
The biggest prior expansion came in 2004, when the newly-created Department of Homeland Security for the first time applied it to people apprehended in the interior of the country, as opposed to at borders; specifically, it could be used against individuals who were found within 100 miles of the U.S. border and couldn’t establish that they’d been in the country longer than 14 days. The law makes no distinction as to the type of immigration officer that can initiate such proceedings, but DHS had limited it to agents with Customs and Border Protection (CBP).
That is how it remained until now, as agents, including ICE agents operating far from the border, are being given the full authority that the statute permits. Expedited removal can now be used anywhere in the country, against anyone who an officer believes is not in the country legally and hasn’t been present two years or longer. In an email sent by new Acting ICE Director Tony Pham, agents are being directed to complete an online training module to be able to execute expedited removals ahead of a planned October 16 rollout.
According to additional communications obtained by BuzzFeed News, during an unspecified initial period, all expedited removal decisions will be reviewed by an ICE attorney to ensure that those slated for deportation actually fall within the statute’s provisions. Agents are for now also being directed not to apply expedited removal to people who can prove they were in the country prior to when the new policy was first issued last July, as well as those otherwise already in deportation proceedings (who legally have greater procedural due process rights).
As with most aspects of immigration enforcement, individual agents possess an enormous amount of discretion here. The ICE guidance, according to BuzzFeed, gives agents the discretion to not use expedited removal against people who are the primary caretakers of U.S. residents or citizens, who have mental competency issues, have a path towards legal status, or are the victim or witness of a crime. It also allows for those encountered who don’t immediately have access to documentation proving that they are not subject to expedited removal to receive a “brief but reasonable opportunity” to retrieve it.
All of this, though, is up to the officer, and so is the determination as to whether someone is or is not subject to expedited removal in the first place. There may be a legal review now, but that’s not required, and once that is lifted, it will ultimately be the ICE agent’s word against the respondent’s. The statute very explicitly makes these decisions unreviewable and unappealable. There are a few circumstances where regular removal proceedings under 8 U.S.C. § 1229a can be triggered: by law, if the person claims a credible fear of persecution or torture, they are sent for a credible fear interview and evaluated for humanitarian claims, including an asylum petition; DHS regulations further establish that people who make a claim to U.S. residency, citizenship, or status as a refugee or asylee will have these claims evaluated by an immigration judge if the officer can’t immediately verify them.
In very limited cases, the respondent can petition for review before a federal judge under 8 U.S.C. § 1252(e). This is limited to habeas corpus petitions, and a federal judge is only able to consider the questions of whether the individual is in fact “an alien,” whether they were indeed given an order of expedited removal, and whether they can prove that they are a permanent resident, a refugee, or an asylee. The judge cannot consider the expedited removal order itself, or the decision-making process that the immigration agent undertook. The chance of a respondent even being able to present such a claim is pretty limited, given that an expedited removal can take place in as little as one day, and the respondents are generally held in detention until they are deported.
How we got here
The Trump administration announced its plan to expand expedited removal in July 2019, a move that was quickly blocked by a federal judge. The regulation would have drastically expanded the federal government’s ability to deport some immigrants without due process, which was enshrined into law by the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA). That legislation was a hallmark of the tough-on-crime ‘90s. Among other things, it expanded the scope of who could be deported, made it easier for the government to deport people, and introduced the concept of mandatory detention for immigrants charged with certain crimes. (For an in-depth look at IIRIRA, we recommend this Vox explainer.)
The more limited scope of expedited removal that’s been in use since the 2004 shift still ensnares a lot of people. Nearly two-thirds of people in the U.S. live in the so-called “100 mile border zone”. According to federal data analyzed by the American Immigration Council, 35 percent of all deportations in fiscal 2017 were done through expedited removal (this includes people who were stopped at or apprehended after crossing the border).
There have been some instances of U.S. citizens being deported through expedited removal, even though citizens obviously aren’t subject to deportation at all. Maria de la Paz, a U.S. citizen born in Texas, was issued an expedited removal order in 2002 by a CBP officer who claimed she couldn’t be a U.S. citizen because she didn’t speak English, according to a 2014report by the American Civil Liberties Union. De la Paz eventually tried to cross into the U.S. between ports of entry, since she had been denied entry into the country repeatedly despite having been born in Texas, but was apprehended by CBP and deported once again under the previous deportation order. She was finally able to return to the U.S. in July 2014.
The Trump administration’s initial notice regarding the policy’s expansion was published in the Federal Register in July 2019, but never developed rules or a strategy for its rollout. A coalition of immigrant advocacy organizations—Make the Road New York, La Unión Del Pueblo Entero, and We Count!—sued the administration over the policy, as well as Attorney General William Barr, and the acting heads of DHS, ICE, CBP, that August. The government’s lawyers argued that since the expanded policy had yet to be implemented—or even mapped out—the organizations had no standing to sue, but a federal judge issued an injunction anyway. As usual, the judge’s reasoning was that even though the administration has the legal authority to expand expedited removal, the way it went about doing so was rushed.
Time and time again, the administration’s hastiness and sloppy implementation of its desired policies has been its downfall—at least temporarily. Federal judges and the Supreme Court have blocked or scaled back several Trump immigration policies simply because the administration violated the Administrative Procedure Act, a law prohibiting capricious rule-making. (That’s why the phrase “arbitrary and capricious” can be found in virtually every lawsuit regarding a Trump immigration policy.) The administration’s attempt to end DACA, the first iteration of the travel ban from Muslim-majority countries, and the attempt to put a question about U.S. citizenship on the 2020 census were all thwarted by the administration’s own rule making procedures and its refusal to adhere to the APA.
This time, though, the injunction was lifted and the policy is being allowed to go through.
What’s next?
The injunction was overturned on the argument that the plaintiffs were unlikely to succeed on the Administrative Procedure Act merits because the law itself very clearly laid out that the executive has the absolute and unreviewable discretion to use the expedited removal statute — which was passed into law by Congress — to its fullest extent. However, questions about the constitutionality of the statute itself remain very much active.
The same part of the law that gives the federal judiciary to review certain habeas claims made by a respondent who is the subject of an expedited removal order also vest the D.C. District court, specifically, with the ability to initiate review of expedited removal determinations, the application of the statute as a whole, and related regulations for constitutionality and adherence to other parts of the law. The plaintiffs argued that this application of expedited removal would violate respondents’ constitutionally-protected due process rights. In remanding the case back to the District Court, the D.C. Court of Appeals allowed this review to proceed, meaning that this expansion could still be declared unlawful under 8 U.S.C. 1252(e)(3).
The question of expedited removal being used against individuals in the interior of the country has never really been tested, as the last decision involving its legality came in 2000, when the D.C. Circuit Court ruled that it did not violate due process rights. At the time, its application was limited to the border, and did not impact individuals physically present in the United States. Whether or not someone is in the United States for purposes of immigration due process or not is an important, and tricky, legal question. By and large, the courts have ruled that there’s a fundamental distinction between seeking admission to the country and being removed from it, with the former carrying very few protections for those who are not already residents. However, the definition of what it means to be seeking admission has not always been the same.
In the DHS v. ThuraissigiamSupreme Court decision from earlier this year — which could also come into play due to the fact that it determined that habeas petitions could not be used to challenge agency determinations — the court ruled that Vijayakumar Thuraissigiam could legally be treated as if he were stopped at the border, despite the fact that he’d made it 25 yards into U.S. territory. The D.C. District Court’s determination on the constitutionality of the expedited removal expansion will probably depend largely on how it chooses to consider the question of what constitutes an “admission.”
This heavy legal question is more complex than an evaluation of adherence to the APA, and it seems unlikely that either another injunction or a final decision will come in the imminent future, meaning that we can expect the expansion to go forward as planned in a week’s time. The first week or so will give a good indication as to how indiscriminately ICE will attempt to use its new authorities. As we’ve noted several times, as much as the agency may want to expand its operations, it’s facing a capacity issue. It’s unlikely that this expansion will lead to a substantially changed posture in terms of who the agency targets, and how it does so.
What will change is what happens once agents do detain someone; whereas before, this would probably be the start of a months-long deportation process, now it could mean that this person could be on a deportation flight in under a week. It’s hard to imagine that one hundred percent of people deported under expedited removal will have actually fit the criteria, but it will be pretty difficult to keep track of when and where this may have happened, given the inability to appeal to an immigration judge or seek legal representation.
If and when someone is illegally deported, it’s not clear that there would be much avenue for recourse. Just this week, The Intercept reported that a Guatemalan asylum seeker had been deported prior to a scheduled hearing; while ICE acknowledged the illegality of his removal, there don’t seem to be any plans to bring him back or address the situation in any way.
Under the Radar
New information emerges about hysterectomies at Georgia ICE facility
After the news of potentially forced hysterectomies at the Irwin County Detention Center broke last month, ICE released a statement saying just two women had been referred for hysterectomies at the facility since 2018. But during his confirmation hearing, acting DHS secretary Chad Wolf—who, according to the Government Accountability Office, was unlawfully appointed to his position—disclosed that more Irwin detainees were referred for hysterectomies than ICE previously claimed. In a document Wolf submitted to the Senate panel, obtained by CQ Roll Call’s Tanvi Misra, Wolf said “a total of five individuals … were referred to certified, credentialed medical professionals at gynecological and obstetrical health care facilities for hysterectomies,” and that three hysterectomies were performed.
Meanwhile PRISM reporter Tina Rodriguez, who first reported on the identity of the doctor who performed the hysterectomies, spoke to several women in rural Georgia who said they were mistreated by doctor Mahendra Amin. And last month, the New York Times reported that Amin, who is part owner of the Irwin County Hospital, often “recommend surgical intervention, even when it did not seem medically necessary at the time and nonsurgical treatment options were available.”
Congress is still investigating the allegations of hysterectomies performed without fully informed consent at Irwin. This latest news suggests—though it’s still too soon to know for sure—that the problem stems from both rampant medical neglect across ICE’s detention network and the greed of a single doctor, who personally benefited each time a medical procedure was performed at a hospital where he was part owner. So far, nothing points to mass hysterectomies performed on immigrants, but rather an all too common pattern of self-dealing and medical negligence in ICE facilities.
Next Destination
New H-1B restrictions rolled out
The Trump administration released its long-rumored restrictions for H-1B work visas this week. The new regulation, issued by the Department of Labor, will require employers to pay workers on H-1B visas higher wages, tighten restrictions for applicants by requiring them to have a degree in the field they’re asking to work in, and will shorten work authorizations from three years to one. Per CBS News, DHS’s companion rule will be enforced in two months.
The administration and other immigration restrictionists have long maintained that companies’ use of H-1B labor displaces U.S. workers from the labor force, though employers who hire H-1B workers must already prove that hiring foreign workers will not adversely affect U.S. workers. The administration’s war on H-1B workers is a part of its broader effort to reduce legal immigration—although, to be clear, H-1B visas are dual-intent, meaning they’re technically nonimmigrant even if they provide a path to permanent status—thereby making it harder for foreign nationals to live, work, and study in the United States.
It’s only the latest salvo, with a proposed presidential order attempting to block the issuance of new H-1Bs partially enjoined by a federal judge just last week. In what are potentially the waning months of the Trump administration, it will likely attempt to keep implementing restrictions on all types of work visas, which it has consistently viewed as a detriment to U.S. workers in the flawed vision of a static number of available jobs.