The logistical case for Trump's deportation plan – and the legal case against it

The administration's decision to expand the use of 'expedited removal' is within the bounds of the law. But legal experts say it opens the door to violations of due process, a right courts have ascribed even to undocumented immigrants.

Lucy Nicholson/Reuters
The US border with Mexico is seen in Nogales, Arizona, on Jan. 31, 2017.

When the Trump administration outlined its rationale this week for ramping up immigration enforcement, it cited the “unacceptable” delays that currently plague the country’s immigration courts.

Their dockets currently include a record high of more than 534,000 pending cases, according to a Department of Homeland Security memo this week. The department’s resources are already “significantly strained,” the DHS memo noted – even as it outlined plans to deport and detain a far broader range of illegal immigrants than the Obama administration.

The Trump administration has promised a “surge” of immigration judges and asylum officers to handle the long-standing backlog, with additional plans to allocate billions for a massive border wall, new detention centers, and thousands of newly hired border and enforcement officers.

And in a move that legal experts say could have one of the more far-reaching effects on US immigration policy, President Trump is also expanding the “expedited removal” process.

The process, which was established by a 1996 law and allows an immigration officer to deport undocumented immigrants without referring them to a judge, is not unprecedented. The Bush and Obama administrations used it since 2004 for undocumented immigrants considered “in transit” – those picked up by authorities within 100 miles of the border within the past 14 days.

Mr. Trump, however, has expanded the expedited removal process to include any illegal immigrant anywhere in the country and who has been here for two years or less, making it far easier to remove tens of thousands of those who have crossed the US border without papers, many experts say.

To proponents, such a move is needed to prevent those who have crossed over illegally from establishing roots in a community – roots that would be difficult, if not inhumane, to break apart. This is part of the reason that the average wait of more than two years to see a judge – a wait that can stretch to five years – remains unacceptable for the Trump administration.

But others are concerned that Trump’s expansion of the expedited removal process is likely to deprive undocumented immigrants of their constitutional right to due process, which has been established by court precedents. Indeed, for those within the country two years, their cases are likely to be far more complex and difficult to evaluate in an expedited hearing

“On the one hand, I think there’s been a lot of dramatic shifts and a lot of aggressive actions by this administration, but so far they have been, for better or for worse, keeping within a general understanding of the powers that were delegated to them by Congress,” says Rick Su, a professor and expert in immigration law at University at Buffalo School of Law.

But, he adds, “this now concentrates a lot of power within the decisions of low-level immigration enforcement officials ... who would essentially be Judge Dredd – judge, jury, and executioner in these cases.”

Constitutional rights

Trump's priorities target most all of those who have crossed the border without papers, ending the “catch-and-release” policy of the Obama administration, which only targeted serious criminals and recent arrivals for removal. Trump has made an exception, however, for law-abiding recipients of Obama’s Deferred Action for Childhood Arrivals order, known as DACA, and for those with American children – on a case-by-case basis.  

“The Obama administration’s conception of ‘catch and release’ was that those who didn’t violate a ‘real law’ wouldn’t have to face immigration consequences,” says Mark Krikorian, executive director of The Center for Immigration Studies, which favors stricter limits on immigration. “And that’s what ended.”

The controversy over Trump’s changes to US immigration policies have highlighted questions over how far the Constitution protects non-citizens, including undocumented immigrants caught in the American legal system.

The Supreme Court is currently hearing arguments in a civil case brought by the parents of a Mexican boy shot and killed by a US border agent in 2010, who fired a bullet in the US that struck the boy in Mexico. The parents argue that their son’s rights were violated under the Fourth Amendment, which prohibits the unreasonable use of force, and the Fifth Amendment, which prohibits depriving a person’s life and liberty without due process.

These questions have also arisen after the US Court of Appeals for the Ninth Circuit upheld a federal court ruling that halted Trump’s temporary immigration ban from seven Muslim countries.

“People who are subjected to expedited removal do have due process rights,” says Margo Schlanger, professor of law at the University of Michigan, and the former civil rights officer for the Department of Homeland Security. She says that the expedited removal process has always been thought sufficient to satisfy their constitutional right to due process, which even non-citizens and undocumented immigrants have, according to court precedents.

But for people who have been in the country longer than 14 days, the expedited removal process may not meet constitutional muster, Professor Schlanger says.

And, she adds, the changes could result in more infractions of the law. “I mean, we’re going to see a lot more mistakes being made in the application of a very complex body of law because the DHS memo says we’re going to move the cases along much faster, and we’re going to put the decisionmaking into the hands of a lot of people who are going to be brand new and inexperienced.”

Wider fallout

Technically, the 1996 federal immigrant law that legalized the expedited removal process authorized its use on those who have been in the US for two years or less. So Trump’s planned expansion still falls within that legal framework.

However, Professor Su notes that when Congress created the Department of Homeland Security, it specifically did not place immigration courts under its purview.

“The reason for that is, if the immigration courts were in the same department, beholden to the same secretary and the same body that does the actual enforcement – if the prosecutor and the judge both work for the same person, that is – it would be very unlikely that you would have a fair proceeding,” he says.

But that protection is wiped away if immigration officers under DHS’s purview decide whether to deport undocumented immigrants not just in transit, but who have been here for an extended period of time.

Yet many proponents say the constitutional right to due process is satisfied by immigration officers, who are trained to identify any valid reasons to delay deportation and move their cases along to the appropriate official.

In an aggressive enforcement system, entirely controlled by DHS, mistakes have already affected many US-born Latinos and other legal immigrants caught up in the expedited removal system, says Cecilia Menjívar, co-director of the Center for Migration Research at the University of Kansas.

“If we take a step back and look at the tactics themselves, and not the population they’re being applied to,” she says, “you can start to see that today it may be undocumented immigrants, but they can easily be applied to other populations.”

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