Trump administration expands deportation authority across US; ACLU promises legal action

Vandana Ravikumar
The change is the latest move in the administration's attempts to crack down on illegal immigration.

The Trump administration announced Monday its intention to expand authority for the expedited removal of undocumented immigrants who cannot prove that they have been in the U.S. continuously for at least two years. 

The Department of Homeland Security's expanded authority is set to go into effect on Tuesday.

The change is the latest move in the administration's attempts to crack down on illegal immigration by vastly expanding DHS's ability to deport certain immigrants while circumventing due-process protections that most other people receive.

Those protections include the right to an attorney and a hearing before a judge, even though courts in the 9th Circuit have previously upheld some amount of due process protections for undocumented immigrants.

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The reach of the expedited removal process has expanded significantly since its creation in 1996, according to the American Immigration Council, a pro-immigrant advocacy group that plans to take legal action against the policy's expansion. 

Already, the policy permits low-level immigration officers to deport unauthorized immigrants who arrive at the border, or those who enter without authorization, if they are apprehended within two weeks of arrival and within 100 miles of the Canadian or Mexican border, according to a DHS memo from 2004. 

The existing policy also permits deportation without a hearing before an immigration judge, according to the American Immigration Council. 

But the recent expansion will now allow the agency to remove immigrants who have not shown, "to the satisfaction of an immigration officer," that they have been present in the U.S. continuously for two years before their apprehension, according to a DHS notice from Monday.

The new expansion also removes geographic limitations, potentially initiating removal proceedings for all undocumented immigrants who have been in the country for less than two years. 

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DHS said in Monday's notice that the intention of the new expansion is to "harmonize" existing rules to apply equally to immigrants who arrive either by land or sea. 

"The effect of that change will be to enhance national security and public safety — while reducing government costs — by facilitating prompt immigration determinations," DHS said. 

Kevin McAleenan, the acting Homeland Security secretary, said the nationwide extension of expedited removal power was intended to address an “ongoing crisis on the southern border” by freeing up beds in detention facilities and reducing a backlog of more than 900,000 cases in immigration courts.

The decision, however, was met by immediate backlash from opponents who criticized the Trump administration's attempt to pursue "mass deportations" by denying immigrants a hearing before a judge.

"Individuals subject to expedited removal rarely see the inside of a courtroom because they are not afforded a regular immigration court hearing before a judge," the American Immigration Council wrote in an analysis on the policy. 

It's unclear how many people could be affected by the new measure. McAleenan said 20,570 people arrested within the United States between October 2017 and September 2018 had been in the U.S. for less than two years, making them eligible for expedited removal. But critics say the new rule could result in immigrants who have been present in the country for over two years to be deported, too.

"Such a truncated process means there is a greater chance that persons are being erroneously deported from the United States, potentially to imminent harm or death," the Council said. 

The American Civil Liberties Union immediately vowed to take legal action against the Trump administration for the decision. 

“Under this unlawful plan, immigrants who have lived here for years would be deported with less due process than people get in traffic court," said Omar Jadwat, director of the ACLU's Immigrants' Rights Project. "We will sue to end this policy quickly.” 

This isn't the first time the Trump administration has attempted to ramp up the use of the expedited removal policy — President Donald Trump first announced his plans to expand the policy's reach via an executive order in January 2017. 

That announcement raised similar concerns about the potential that some immigrants would be mistakenly deported due to the absence of a trial.

"The Supreme Court has consistently held that even undocumented immigrants are entitled to due process," said John Sandweg, who led Immigration and Customs Enforcement under the Obama administration, at that time. 

Critics also pointed out that the policy places the burden of proof on immigrants to demonstrate their continuous presence in the country, which may be difficult to do.

"The only way out of that is for the person to affirmatively prove that they've been here for two years or more. To have that evidence on them at all times," Anand Balakrishnan, Senior Staff Attorney for the ACLU's Immigrants' Rights Project told NPR on Monday. "It puts the burden on every noncitizen to prove their continuous presence." 

The DHS notice clarified that "unaccompanied alien children" cannot be placed in expedited removal under current law. 

Contributing: The Associated Press.

This article originally appeared on USA TODAY: Trump administration expands ICE's authority for quicker deportations