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Trump Administration to “Bypass” Due Process Through Major Expansion in Expedited Removal

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A few weeks ago, President Trump said, “[W]e should get rid of [immigration] judges.” Although immigration law bars him from doing so through executive action, yesterday Politico reported that, “The Homeland Security Department is weighing a plan to bypass immigration courts and remove undocumented immigrants who cannot prove they’ve been present continuously in the U.S. for two years or more.” This would be a major expansion of expedited removal which is currently limited to those who arrive at our border and those who are apprehended within two weeks of arrival and within 100 miles of the Canadian and Mexican border.  

Ur Jaddou, Director of DHS Watch and former USCIS Chief Counsel, said:  “This major expansion of expedited removal could lead to detrimental consequences for many who may otherwise remain lawfully in the U.S., such as a spouse of a U.S. citizen or a victim of trafficking or domestic violence. Expedited removal generally takes days or just a few weeks and the individual is detained until deportation. Stuck in detention under a swiftly moving deportation process with no review, it will be difficult for many to gather appropriate documents to prove two years continuous residence to prevent deportation without a judge’s review.”

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.

Other Attempts to “Bypass” Immigration Judges

This major expansion of expedited removal would not be the first attempt to chip away review by immigration judges. Other reports show that the Trump administration wants to use border agents to make decisions about which asylum seekers have a credible fear of persecution, the first step in asking for asylum. NBC reports that Stephen Miller argues that using border agents will mean fewer migrants will pass the credible fear test and never see an immigration judge. The New York Times reports that the Trump administration is considering ways to toughen asylum rules, including an increase in the credible fear standard, so that fewer people seeking asylum get a chance to be heard by an immigration judge.  

In addition, the Trump administration has long heralded an amendment in the Trafficking Victims Protection Act (TVPRA) to send children traveling alone and encountered at our borders back home without a careful process to ensure we do not inadvertently send them back to harm they may be escaping. And, the Trump administration, which has strongly advocated for indefinite detention of families, has implemented a policy that requires asylum seekers to wait in Mexico, and is rumored to be considering a new version of family separation Sophie’s Choice that would require parents to “choose” indefinite detention or separation. All of these cruel policies would inevitably lead some families to abandon their asylum claims for fear of indefinite detention, separation, or indefinite waiting in Mexico with no clear end in sight to safety, thereby limiting the number of cases overseen by immigration judges.