Papers, Please! DHS Wants Power to Deport People Faster with Less Judicial Oversight

A policy that allows for quicker deportations near the border could expand nationwide.

Quick: Do you think you can prove to the satisfaction of an immigration officer that you have the right to be in the United States right now? Can you prove that you've been living in the United States for at least two years?  If not, you risk getting deported under a new policy being pushed by President Donald Trump's administration.

Today, the Department of Homeland Security (DHS), under Acting Secretary Kevin McAleenan, released a notice announcing plans to dramatically expand the "expedited removal" process.

This process generally bypasses judicial review hearings, meaning those subjected to it don't get the typical due process mechanisms of those facing deportation (which can normally take months or years). Expedited removals already exist, but with restrictions: The process can be applied only to those who arrived to the United States by sea and have been in the country for less than two years; or to those who crossed the United States border by land, and are still within 100 miles of the U.S. border, and were in the United States for less than 14 days before encountering immigration officers.

The new policy would erase many of the geographic limitations. McAleenan says the DHS is "exercising its statutory authority" under a 1996 law to cover immigrants anywhere within the United States who have been here less than two years, regardless of how they arrived. So that 100-mile limit would go away under this new system. Any immigrant found anywhere in the United States would risk expedited removal if they "have not affirmatively shown, to the satisfaction of an immigration officer, that they have been physically present in the United States continuously for the two-year period immediately preceding the date of the determination of inadmissibility."

The burden then is put on the immigrants to prove they're here legally—or, if they can't do that, that they've been here for more than two years. Otherwise they risk rapid deportation with little to no recourse.

Part of the justification for expanding the policy, the order explains, is the massive logjam in immigration enforcement procedures, which has caused a growing humanitarian crisis at several detention facilities near the border. McAleenan explains that the new policy would "help to alleviate some of the burden and capacity issues currently faced by DHS and [the Department of Justice] by allowing DHS to remove certain aliens encountered in the interior more quickly, as opposed to placing those aliens in more time-consuming removal proceedings." They calculate that more than a third of the aliens they have detained from the interior of the United States (deeper than that 100-mile limit) would potentially qualify for expedited removal if immigration had been following these guidelines.

Regardless of how one feels about immigration levels and border enforcement, any fan of human liberty should be concerned when an arm of the executive branch proposes expanding the scope of how much it can enforce regulations without judicial review. It's bad enough to deny aliens here due process. (Yes, the rights guaranteed by the Constitution are generally supposed to apply to noncitizens.) But what's worse is what we already know from how DHS treats American citizens and legal immigrants within that 100-mile zone—with intrusive, unwarranted searches. This authority will most certainly be abused.

Just last week U.S. Customs officials detained three children, who are U.S. citizens, at O'Hare International Airport in Chicago, in the hopes of luring out their parents, who they believe are illegal immigrants. Expanding the power to remove people quickly is almost sure to hit people that it shouldn't, and to be used to threaten immigrants and minorities even when they're here legally.

The American Civil Liberties Union is already announcing plans to sue:

???? We are suing to quickly stop Trump's efforts to massively expand the expedited removal of immigrants.

Immigrants that have lived here for years will have less due process rights than people get in traffic court.

The plan is unlawful. Period.

— ACLU (@ACLU) July 22, 2019

Read the order for yourself here.