So, about expedited removal
There's a framework in place for challenging Trump's expansion of the program
Newsletters won’t always be this long and wonky, but this is an issue I’ve worked on a lot over the last six months, so I downloaded my brain.
Expedited removal. You probably heard about it at some point this week. Although it’s only been a few days since the Trump Administration announced it would be massively expanding immigration officials’ authority to place noncitizens in expedited removal, it was also several anti-immigrant policies ago, so you can get caught up here if you need a refresher.
(Removal, by the way, is the American legal euphemism for deportation.)
Expedited removal has been on the books for more than two decades. It’s a horrifyingly authoritarian law that allows immigration officers to deport people without a hearing. Trump didn’t create the program. Like so many of his other policies, he’s just exploiting and expanding the already existing license for cruelty at the border.
The problem with expedited removal is that when Congress wrote the statute, it tried to cut out the courts’ ability to review or make any sort of judgment about the original immigration officer’s determinations. For years immigration officers with very little experience or real knowledge of actual immigration law have been deporting people (mostly) on the southern border without any sort of hearing. The policy is devastating to people who have real asylum claims. If they are really desperate and fearful for their lives, they’ll probably come back. But if on the next trip they get lucky enough to get into an immigration court, any prior deportation permanently bars a person from asylum.
The moderately good news is that after years of courts waving expedited removal cases away and simply accepting that they were unreviewable, multiple Courts of Appeal have recently held that the law as written is unconstitutional. That lays some foundation for challenging Trump’s expansion.
Ironically, there’s a chance the expansion might help immigration advocates. The hurdle in these cases is not actually getting courts on board with the expedited removal law being unconstitutional. That’s actually pretty easy. The hurdle is finding an immigrant with enough ties to the U.S. to argue that they have somewhere close to full constitutional rights. That’s much easier with a person who has been here two years than someone who arrived less than two weeks ago.
Of course Joe Biden voted for this.
Expedited removal dates back to 1996, when it was added to immigration law as part of the Illegal Immigration Reform and Immigrant Responsibility Act, which is more or less the contemporary root of all of the terrible things Trump can do to immigrants (shoutout to Joe Biden). Anyway, there now exist two major sections of law that concern expedited removal:
8 U.S.C. § 1225(b) says when an immigration officer determines that a noncitizen is “inadmissible,” they can order that person deported “without further hearing or review,” unless they claim fear of persecution or explicitly say they want to claim asylum.
8 U.S.C. § 1252(a) and (e) say that a court may not review expedited removal determinations, except on a very limited basis in habeas corpus proceedings. In those cases, the courts are limited to deciding whether the person is, in fact, an immigrant and was, in fact, ordered removed under 8 U.S.C. § 1225(b) and may not rule on anything else. [This part possibly was added as part of the 2006 REAL ID Act, but I can’t figure it out and it’s not that important.]
Basically, Congress is saying the courts are not allowed to ask whether the immigration officer was wrong (legally or otherwise) to deport someone through expedited removal unless that person is claiming to already be a citizen. Way back like two weeks ago I’d note here that ICE attempts to deport U.S. citizens more than you would think, but the news is ahead of me.
Since 2004, expedited removal has applied to both immigrants arriving at “ports of entry” and anyone caught by immigration within 100 miles of the border who cannot prove they’ve been in the United States more than 14 days. That latter part, restricting the use of expedited removal to very newly arrived immigrants caught within 100 miles of the border, is the part that Trump is massively expanding—to anywhere in the U.S., applying to noncitizens who have been here less than two years. The time/location limit is not part of the law passed by Congress, it’s just a DHS rule. Since the rule came from the executive branch, it can be pretty easily changed by the President, unless Congress were to suddenly decide to care about immigrants sometime soon.
The reality of expedited removal
A huge number of people arrive at the southern U.S. border having traveled with nothing, for days or weeks, fleeing because it’s the only way they see to survive. Then they end up deported through expedited removal because no one told them that it’s on them to immediately say they’re afraid to go back to their country as soon as they encounter immigration. Even if they do speak up, many more fail what’s called a credible fear interview—the cursory interview given to determine if people claiming asylum deserve to get a shot at claiming asylum in immigration court—because they’re not prepared for it and are suspicious of some American stranger asking them about their most private traumas.
Because expedited removal doesn’t allow for a court to review these quick deportation determinations made by border patrol, it’s also possible that people claiming legitimate fear are deported even having said the right things. There’s simply no way to challenge that a border patrol agent knew someone had a legitimate fear and deported them anyway.
Challenging the law
The legal attack on the expedited removal law is not really about whether it’s constitutional for the President to order people thrown out of the country (it mostly is). Instead, it’s about whether the part of the law that prevents review of expedited removal determinations is constitutional.
The thing about constitutional law in the U.S. is that we don’t many positive rights, only negative ones. You can basically distill the Bill of Rights down to “you have the right to get the government out of your business [in some situations].” So, in the absence of positive rights, a lot of Constitutional law becomes about the process: did the government give you notice it was doing this thing to you? Did you get a hearing to air your grievances or state your case? Courts also love to make things about themselves.
Expedited removal explicitly forecloses the right to any hearing at all, so that is where it’s easiest to challenge in court.
Let’s talk about habeas
Immigration advocates have attacked the law through the Suspension Clause, which prevents Congress from suspending the writ of habeas corpus. Habeas is a process where anyone detained by the government (state or federal) can challenge their detention as unlawful. Again, there’s no right to habeas in the Constitution, just a right not to have Congress suspend habeas. But the general idea is if the government has control over your person, you have the right to demand to be brought before a court, and the government has to prove it is detaining you lawfully.
This was very helpful in 14th-18th-century England, a time when there were a lot of petty kings who liked to throw aristocrats in jail for political reasons. Hundreds of years later, the writ continues to be an imperfect check on the power of the petty and racist executive to put people in cages on a whim (emphasis on imperfect, see: guys still waiting to be released from Guantanamo).
So, anyway, the most popular argument against the expedited removal law is that cutting out any sort of court review, and particularly limiting the habeas review, violates the Suspension Clause. Habeas applies because the law also requires anyone found deportable to be detained until their deportation. So anyone challenging their expedited removal is probably doing so from immigration jail.
This argument seems to be popular because it’s pretty clearly correct. The courts that have actually gotten to the habeas question pretty much unanimously find it to be unconstitutional. You would think that would be the end of it. BUT, surprise! There’s a second problem: a person has to be protected by the constitution in order for the unconstitutional lack of habeas to get them anything. And there’s still some dispute in the federal courts about when exactly newly arriving immigrants start being protected (there’s also a very recent dispute over whether habeas applies at all to certain immigrants, regardless of how long they’ve been here, but I cannot right now).
The court cases
There are two recent cases challenging expedited removal in the Third Circuit (both involving the same group of refugees), and one in the Ninth. These circuits are relatively friendly to immigrants, so these decisions are not necessarily going to be extrapolated to, say, the Fifth or Eleventh Circuits down in the South, but they are at least giving advocates something to work with.
The first Third Circuit case, Castro v. DHS, 835 F.3d 422 (3d Cir. 2016), was initially considered a big loss for immigration advocates. The court found that 1) it didn’t have the jurisdiction to review the claim because of the way the law was written to keep courts out of the process, 2) the Suspension Clause would theoretically allow a person to challenge the lack of jurisdiction as unconstitutional, BUT 3) the immigrant plaintiffs did not have “sufficient ties” to the United States to be covered by the Suspension Clause.
While this was overall a loss, the analysis held the door open just a crack, suggesting it was possible to get the court to find the law unconstitutional in the future.
The plaintiffs in Castro were a group of asylum-seeking mothers and their children from El Salvador and Honduras. After they lost, their lawyers tried a new strategy to keep them in the country: many of them applied for something called Special Immigrant Juvenile (SIJ) status, which is a path to a green card for children who are in the United States and have a state family court order that says they are unable to reunite with the other (or both) parents because of abuse or neglect.
Two years after Castro, four of the children’s attorneys tried again in a case called Osorio-Martinez v. AG, 893 F.3d 153 (3d Cir. 2018). With their new SIJ status, circumstances had changed: they had no longer been in U.S. custody just a few days, but had been here for two years, and now the children had qualified for a path to citizenship. The court in Osorio-Martinez reversed itself, finding that the plaintiffs had enough connection to the United States to be covered by the Constitution. Once it found that, it easily determined that the part of the expedited removal statute that strips courts of jurisdiction is unconstitutional because it both suspends habeas review and doesn’t provide any “substitute procedures” to challenge detention.
Most recently, the Ninth Circuit reversed a years-long commitment to avoiding the question of whether 1252(e) is constitutional, and finally came out strongly in the Not camp. The case is Thuraissigiam v. DHS, 917 F.3d 1097 (9th Cir. 2019). It’s definitely stronger than the Third Circuit cases, because it doesn’t distinguish between newly arrived or longtime immigrants. All of them have the right to habeas. The Ninth Circuit holds that the Suspension Clause applies to Mr. Thuraissigiam, a Tamil refugee from Sri Lanka, and cannot be suspended regardless of how long a person has been in the United States. If they’re in U.S. custody, they can bring a habeas claim. (It also takes a couple of pages to discuss why the judges who decided Castro don’t know anything about immigration law, which is a fun bonus.)
The takeaway
This group of cases suggests that the hurdle for immigration advocates trying to fight expedited removal is not the law itself, but getting the courts to recognize that the constitution protects the plaintiff standing in front of them. That will get a lot easier when ICE starts trying to remove people who have already set up a life here.
That doesn’t mean this particular legal trajectory won’t take a horrifying, discriminatory turn, or that SCOTUS won’t end up shitting all over the Ninth Circuit case, but I think that legal advocates are better set up to fight for clients facing this kind of removal than they were even a year ago.
In this economy, that’s at least one ray of hope to hold on to.
*A previous version of this post said legal advocates were better set up to “fight clients facing this kind of removal,” which is definitely not allowed by the Code of Professional Responsibility. It has been updated, though it remains permanently wrong in the emailed version.