Not So Fast, ICE

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Not so fast, ICE: People who enter the country illegally may still "have a weighty liberty interest in remaining here and therefore must be afforded due process under the Fifth Amendment," a new federal court ruling says.

The decision strikes a blow against the Trump administration's expanded "expedited removal" policy for undocumented migrants and threatens President Donald Trump's mass deportation plans. The expanded application "was widely considered a key tool for the administration to swiftly carry out deportations," notes Marianne LeVine at The Washington Post.

An expedited removal policy has long been used to deport people apprehended near the U.S.-Mexico border after entering the country within the two weeks prior. But under a new Homeland Security policy issued in January, the Trump administration sought to apply expedited removal to illegal immigrants found anywhere in the country, even if they had been here for a significant amount of time.

Since then, the Trump administration has "made aggressive use of its newly expanded expedited removal power," as U.S. District Judge Jia M. Cobb put it in her opinion, issued Friday. "When people have appeared in immigration courts for their normally paced immigration proceedings, for instance, the Government has moved to dismiss those proceedings, promptly arrested individuals inside of those courts, and then shuttled them into much faster moving—and much less procedurally robust—expedited removal proceedings. Days later, these people find themselves removed."

"In defending this skimpy process, the Government makes a truly startling argument: that those who entered the country illegally are entitled to no process under the Fifth Amendment, but instead must accept whatever grace Congress affords them," noted Cobb. "Were that right, not only noncitizens, but everyone would be at risk. The Government could accuse you of entering unlawfully, relegate you to a bare-bones proceeding where it would 'prove' your unlawful entry, and then immediately remove you. By merely accusing you of entering unlawfully, the Government would deprive you of any meaningful opportunity to disprove its allegations."

The judge suggests that "prioritizing speed over all else will inevitably lead the Government to erroneously remove people via this truncated process," since "most noncitizens living in the interior have been here longer than two years, rendering them ineligible for expedited removal, and many are seeking asylum or another form of
immigration relief, entitling them to further process before they can be removed."

Cobb temporarily halted the administration's power to engage in speed deportations of people found far from the border.

This isn't about trying to upend the expedited removal process in general, Cobb stressed. "For nearly three decades, the federal government has subjected noncitizens apprehended at the border to fast-paced summary removal. Using that procedure, these people are quickly turned back across the border, typically after a single conversation with an immigration officer."

But "in applying the statute to a huge group of people living in the interior of the country who have not previously been subject to expedited removal, the Government must afford them due process," Cobb wrote.

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Scenes from Ohio: Ohio Attorney General Dave Yost said that while county jails can hold people for Immigration and Customs Enforcement (ICE) for more than 48 hours and help transport them, they can only do this under arrangements made between county commissioners and federal immigration authorities. "The sheriff, however, does not have independent contracting authority for this purpose," opined Yost. That renders a lot of what's going on in Ohio jails illegal, says the American Civil Liberties Union (ACLU) of Ohio. "The people detained under these invalid agreements are being held unconstitutionally and must be released immediately," ACLU of Ohio Legal Director Freda Levenson said.

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