Le­gal hur­dle looms for fast de­por­ta­tions

Planned ‘ex­pe­dited re­movals’ face scru­tiny

Orlando Sentinel - - NATION & WORLD - By David G. Sav­age david.sav­[email protected]­times.com

WASH­ING­TON — The Trump ad­min­is­tra­tion’s plan for putting hun­dreds of thou­sands of re­cent im­mi­grants in the coun­try il­le­gally on a fast track for de­por­ta­tion is likely to trig­ger the next ma­jor le­gal bat­tle over im­mi­gra­tion en­force­ment.

Judges have put on hold the pres­i­dent’s tem­po­rary ban on travel to the U.S. from seven Mus­lim-ma­jor­ity coun­tries. That ex­ec­u­tive or­der, as orig­i­nally pro­posed, could have af­fected tens of thou­sands of trav­el­ers and U.S. visa hold­ers.

But the ad­min­is­tra­tion’s ef­forts to step up im­mi­gra­tion en­force­ment and stream­line de­por­ta­tion — out­lined in memos from Home­land Se­cu­rity Sec­re­tary John Kelly — could af­fect far more peo­ple, in­clud­ing po­ten­tially most of the es­ti­mated 11 mil­lion im­mi­grants liv­ing il­le­gally in the United States. One part of that ef­fort — the ex­panded use of what the law refers to as ex­pe­dited re­moval — is al­most cer­tain to face a con­sti­tu­tional chal­lenge in the courts.

Un­til now, this fast-track process has been used to hold and quickly send back mi­grants who were picked up within days of hav­ing crossed the border. The le­gal jus­ti­fi­ca­tion has been that those peo­ple, hav­ing just en­tered the coun­try il­le­gally, had no le­gal rights, ex­cept per­haps to re­quest asy­lum from per­se­cu­tion in their home coun­try.

Nonci­t­i­zens liv­ing in the coun­try il­le­gally can be ar­rested and held for de­por­ta­tion, but they have had a right to a full hear­ing be­fore an im­mi­gra­tion judge be­fore they can be re­moved from the U.S. At such a hear­ing, they may rely on the help of a lawyer and can ar­gue they have fam­ily and work ties here. If a rul­ing goes against them, they may ap­peal in the im­mi­gra­tion courts and in fed­eral court. The process typ­i­cally takes years.

In his Feb. 20 memo, how­ever, Kelly com­plained the im­mi­gra­tion courts were clogged and the re­moval process was too cum­ber­some, and he called for a new ap­proach.

“The surge of il­le­gal im­mi­gra­tion at the south­ern border has over­whelmed” the sys­tem, he said. “There are more than 534,000 cases cur­rently pend­ing on im­mi­gra­tion courts dock­ets na­tion­wide — a record high.” In some ar­eas, he said, it takes “as long as five years” for a case to be heard by an im­mi­gra­tion judge.

To speed up de­por­ta­tions, Kelly pro­posed to use ex­pe­dited re­moval, with no hear­ings be­fore a judge, for those im­mi­grants who can­not prove they “have been con­tin­u­ously present in the United States for a two-year pe­riod” prior to their ar­rest. The new pro­ce­dures would not be lim­ited to border ar­eas and could be used to de­port im­mi­grants liv­ing in the in­te­rior of the coun­try.

Kelly said the law since 1996 has au­tho­rized the gov­ern­ment to “re­move aliens ex­pe­di­tiously,” and he said his agents “shall make full use of these au­thor­i­ties.”

Im­mi­grants rights ad­vo­cates voiced alarm.

The Amer­i­can Im­mi­gra­tion Coun­cil said this ap­proach means a Home­land Se­cu­rity agent “op­er­ates as pros­e­cu­tor and judge and of­ten ar­rests an in­di­vid­ual and or­ders him or her de­ported on the same day. With lim­ited ex­cep­tions, the gov­ern­ment takes the po­si­tion that nonci­t­i­zens sub­ject to ex­pe­dited re­moval have no right to ap­peal.”

Civil lib­er­ties lawyers also call that pro­posal un­con­sti­tu­tional, and they ex­pect to sue if the Trump ad­min­is­tra­tion puts the new pol­icy into ef­fect.

The Supreme Court has re­peat­edly said that im­mi­grants, even those here il­le­gally, are pro­tected by the Con­sti­tu­tion’s guar­an­tee of due process of law.

The jus­tices cite the Fifth Amend­ment, which says, “No per­son shall be … de­prived of life, lib­erty or prop­erty, with­out due process of law.” Be­cause the lan­guage refers to “no per­son,” and not “no ci­ti­zen,” its pro­tec­tions cover “even one whose pres­ence in this coun­try is un­law­ful, in­vol­un­tary or tran­si­tory,” the court said unan­i­mously in 1976.

But how much process is due for im­mi­grants who en­tered il­le­gally or over­stayed their visas re­mains “a gray area,” said UCLA law pro­fes­sor Hiroshi Mo­to­mura.

“It’s pos­si­ble that a court might find that a full im­mi­gra­tion court hear­ing isn’t con­sti­tu­tion­ally re­quired,” he said. But it is also pos­si­ble “that a sin­gle field agent mak­ing the de­ci­sion is con­sti­tu­tion­ally de­fi­cient.”

The Supreme Court has two pend­ing cases that turn on the con­sti­tu­tional rights of nonci­t­i­zens. The rul­ings, due by June, may clar­ify the con­sti­tu­tional pro­tec­tions for im­mi­grants, but that would be just a start, said Cor­nell law pro­fes­sor Stephen Yale-Loehr.

“These ex­ec­u­tive or­ders have not re­ceived the same me­dia at­ten­tion as the pres­i­dent’s travel bans. But they will even­tu­ally im­pact mil­lions of more peo­ple. Many more peo­ple will be de­tained and de­ported,” he said.

“And we will be lit­i­gat­ing this for years.”

RE­BECCA BLACK­WELL/AP

The Trump ad­min­is­tra­tion’s ef­forts to stream­line de­por­ta­tion, out­lined in memos from Home­land Se­cu­rity Sec­re­tary John Kelly, are likely to face con­sti­tu­tional chal­lenges.

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