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The Trump administration has announced that, starting tomorrow, it will greatly expand the use of expedited removal, a process by which the Department of Homeland (DHS) may swiftly deport someone they encounter generally without review by a judge and with little due process. In fiscal year 2018, according to the notice, individuals placed in expedited removal were deported in 11.4 days, on average. Currently, Customs and Border Protection (CBP) officers use expedited removal at the border and within 100 miles of the border for anyone who cannot prove to the satisfaction of a CBP officer that they have been in the country for more than 14 days and do not have valid documents or committed misrepresentation in entering the country. Under the expansion, expedited removal will apply across the country against anyone for whom ICE has reasonable suspicion of unlawful entry and where that individual cannot readily prove lawful status or continuous presence in the U.S. for more than two years.
Ur Jaddou, Director of DHS Watch and former USCIS Chief Counsel, said: “This major expansion of expedited removal will not only have detrimental consequences for undocumented individuals who may otherwise remain lawfully in the U.S., such as an undocumented spouse of a U.S. citizen or an undocumented victim of trafficking or domestic violence. It will ensnare U.S. citizens, lawful permanent residents, and other lawfully present individuals who cannot swiftly prove their lawful status to the satisfaction of an ICE officer. Under this notice, if a U.S. citizen anywhere in the country finds themselves in the middle of an ICE raid or facing an ICE officer asking for papers, they could be detained and even ordered removed until they can prove their lawful status. In other words, ICE could claim a U.S. citizen is an alien until the U.S. citizen proves otherwise, all while being detained.”
David Leopold, Counsel to DHS Watch, Chair of Immigration at Ulmer & Berne and former President of the American Immigration Lawyers Association, said: “Requiring people to prove they’ve been continuously physically present in the US for two years before they’re eligible to have their case heard by an immigration judge presents a nearly impossible task for most people, especially if they’re locked up while trying to gather evidence. Expansion of expedited removal effectively deprives millions of people, many of whom have close ties to the U.S., the chance to plead their case before an immigration judge, effectively making a low level ICE agent judge, jury and executioner when it comes to deportation. Moreover, the notice puts another weapon in the arsenal of bad actor employers who will use the fear and uncertainty associated with expedited removal to further abuse and exploit undocumented workers. This is an insidious and cynical use of the immigration law.“
Applies to Anyone — U.S. Citizens, Lawful Permanent Residents (LPRs), Anyone Lawfully in the U.S. — Who Can’t Readily Show “Papers”
Under this notice of expanded expedited removal, if an ICE officer anywhere in the U.S. has a reasonable suspicion that a person entered the U.S. without permission and that individual cannot readily prove their lawful status — the officer may arrest, detain, and order them removed. To be clear, this exposes U.S. citizens and LPRs to arrest, detention, and swift deportation. In fiscal year 2018, expedited removal deportations happened on average in 11.4 days. The notice does allow those claiming to be U.S. citizens and LPRs to appeal to a judge, but according to existing regulations they “shall” be detained during that process. Importantly, there is no right to paid counsel in this process.
Applies Across the Country Without Any Public Explanation of How to Prepare for This Major Expansion of Arrest, Detention and Swift Deportation Authority
Under this notice of expanded expedited removal, all U.S. citizens, LPRs, other lawfully admitted individuals, and anyone who has been in the U.S. for more than two years, is suddenly exposed to potential arrest, detention, and expedited removal without any notice of how to prepare for this major change. Should U.S. citizens, LPRs, and others carry their passports, immigration papers at all times to avoid the possibility of arrest and detention? What is the process by which a U.S. citizen or LPR can prove their status to avoid arrest and detention when faced with an ICE officer asking the question, “Papers, please?” What should an undocumented spouse of a U.S. citizen in the process of legalization do to prove to an ICE officer that they have been here for longer than two years and should not be swiftly deported? And what about the woman who is trafficked or subjected to horrific abuse by her U.S. citizen husband and does not have anyone to help her prove she has been here for more than two years while she is stuck in detention and swiftly deported? Just because someone does not have their “papers” readily available does not mean they are not lawfully entitled to be in the U.S.
Appropriate Safeguards Are Likely Not In Place For Implementation
As the world learned witnessing the horrific family separation policy of the Trump administration over the past year, DHS is not likely prepared to implement this major policy change with appropriate safeguards. Given the gravity of this notice on the entire U.S. population who today are not subject to expedited removal, it is imperative ICE officers be properly trained and prepared, backed by sufficient resources, to address every possible interaction with the public under this notice. Has ICE dedicated sufficient resources to swiftly check on claims to U.S. citizen or lawful status in the U.S.? Has ICE determined which documents it will accept to show two years continuous presence and how will they authenticate them? At what point in the process will ICE allow individuals to show such documents and will ICE provide reasonable opportunities for individuals to gather such documents while being detained?
Ensnares Immigrants Protected Under the Law
Under this notice, an undocumented spouse of a U.S. citizen with a lawful claim to remain in the U.S. could find themselves in detention and swiftly removed if they cannot prove they have been continuously present in the U.S. for more than two years. An abused spouse who may be eligible for protection under the Violence Against Women Act (VAWA) may not be eligible for asylum but nevertheless entitled to protection as a victim of domestic violence. Under this notice she remains exposed to expedited removal and she could be swiftly removed from the U.S. despite her eligibility for a green card as a victim of domestic violence. The same holds true for victims of trafficking and crime who are eligible for U and T visas under existing law.