People For the American Way

Trump’s Expansion of Expedited Removal is State-Sanctioned Racial Profiling

News and Analysis
Trump’s Expansion of Expedited Removal is State-Sanctioned Racial Profiling
Phoenix, Ariz. - February 8, 2018: Supporters of Guadalupe García de Rayos and her family wait for updates during a rally attempting to prevent her deportation.

On July 22, the Trump administration made an abrupt and dramatic decision to expand DHS authority for expedited removal, a deportation procedure that bypasses the due process protections granted to most immigrants, including the right to an attorney and to a hearing before a judge.

Even before Trump’s changes, expedited removal was an extreme policy that should never have existed. It already often resulted in deportation just days after an ICE encounter, and has even led to the improper removal of U.S. citizens and permanent residents who legally resided in the U.S.

Expedited removal was created in 1996 under the Illegal Immigration Reform and Immigration Responsibility Act (IIRIRA) as a narrow removal procedure to be applied only to undocumented immigrants who commit fraud or blatantly misrepresent their circumstances to an immigration agent. In recent history, it has generally only been used by immigration officers to swiftly remove individuals who arrive at the border without a proper entry visa or within two weeks of arrival if an immigrant is apprehended within 100 miles of the Canadian or Mexican border.

Immigration activists have always had major concerns about expedited removal, including the full discretion the process gives to low-level immigration officers to decide whether deportation is proper. Immigrants are not entitled to plead their case to an immigration judge or talk to an attorney and very rarely get the chance to appeal. The process takes place so quickly that they have no hope of gathering the evidence necessary to defend their case. And while in the past, expedited removal was used less frequently, the practice is on the rise.

One exception to expedited removal is if an immigrant has fled their country of origin due to a fear of persecution, and expresses their desire to apply for asylum when apprehended. They are then referred to an asylum officer, who determines the validity of their claim. If the asylum officer determines no “credible fear” exists, the immigrant is allowed to request that an immigration judge review the decision. Unfortunately, without time to consult an attorney or other experienced experts in the field, many eligible immigrants do not know of this option and don’t understand how to ask for such protection.

Expedited removal was already a dangerous process – but the Trump administration’s changes to the policy make it even more extreme.

DHS’s new changes enable ICE and immigration officers to stop anyone they even suspect of being undocumented and ask them to prove their legal status or show they have been continuously present in the United States for more than two years, which, for undocumented immigrants, would exempt them from being deported. If they cannot, they are immediately subject to expedited removal and are consequently robbed of any opportunity to plead their case to an immigration judge or talk to an attorney. In addition, instead of limiting where DHS is allowed to employ expedited removal to 100 miles from the border, the new policy now applies nationwide.

This draconian move by the Trump administration essentially sanctions the state to racially profile and subsequently deport immigrants without justification or liability. This expansion will have a devastating impact on the thousands of undocumented immigrants who would be subject to expedited removal. Especially with the recent ICE raids in major cities and the promise of more to come, even immigrants with legal status in the U.S. now need to be should be prepared to show their paperwork at any time. In true “show be our papers” form, if an immigration officer stops someone and subjects them to expedited removal and they don’t have that proof on hand, they might not have the opportunity to challenge the charge.

The ACLU has already pledged to challenge Trump in court. Immigrants’ Rights Project Director Omar Jadwat stated that “under this unlawful plan, immigrants who have lived here for years would be deported with less due process than people get in traffic court.” With the blatant violations and sweeping tone of immigrant hostility this invokes, we are hopeful for a successful injunction.

Not only is Trump making new moves to undermine congressional intent and expand the IRAIRA, on March 7, the Ninth Circuit questioned the legality of expedited removal generally when it ruled in favor of an immigrant who argued deportation without due process was a constitutional violation. The judge in that case ruled that expedited removal “prevents any judicial review of whether DHS complied with the procedures in an individual case, or applied the correct legal standards,” even before Trump expanded the practice.

Amid Trump’s ongoing attacks on immigrant communities, the subhuman living conditions his administration forces upon thousands of people at our borders, the families he is continuing to separate, and the promise of even more ICE raids in major cities, we all need to stay informed and vigilant in fighting back against all of Trump’s monstrous immigration policies.

Every xenophobic rule enacted by our president to appease his racist base further cements the reality of a system with weak civil rights protections and diminishing opportunities for migration. Rules that once seemed unthinkable are slowly becoming the norm in Trump’s hostile America. We must rise to action, protect our immigrant communities, and fight tooth and nail against these attacks.