Plan widens net for fast-track deportations
Some are already warning immigrants who are in the U.S. illegally to prepare for the changes, in some cases by carrying proof of long-term residence.
“It is significant depending on how it is executed,” said Noah Kroloff, a former senior Department of Homeland Security official who served as chief of staff for then-Secretary Janet Napolitano. “It essentially means anyone who cannot demonstrate that they have been in the country for two years is potentially subject to expedited removal by immigration authorities.”
The growth of expedited removal would rely on a policy that was on the books when the president took office, but was not used to its full extent under past administrations. How exactly the administration might carry out the deportations is not known, because the Department of Homeland Security has yet to officially publish its policy.
In a memo released last week, Homeland Security Secretary John F. Kelly said he planned to expand immediate deportations, but he did not include details. He noted that he had the power to extend the program to immigrants across the country who have lived here for less than two years and came into the country without proper documents.
Trump’s executive order on immigration, signed Jan. 25, called on Kelly to fully enforce the statute on expedited removals, which was instituted in 1996. That would mark a shift from Presidents George W. Bush and Barack Obama, who limited the mechanism to those who were in the country less than 14 days and found within 100 miles of a border.
Advocates are bracing for what could be a dramatic change given that, under Trump’s executive order, nearly all immigrants in the country without documentation are now considered priorities for removal. They say continuous residency in the U.S. for more than two years can be difficult for many people to immediately document, and are concerned that decisions on whether expedited removals should proceed will be made by on-the-ground immigration officers, not judges.
The potential for due-process violations is vast, they say, and would add to an already heightened sense of fear in immigrant communities.
“It’s going to be an avalanche. We know it’s coming, but it isn’t here yet,” said Zachary Nightingale, an immigration attorney at Van Der Hout, Brigagliano & Nightingale, LLP in San Francisco.
While a majority of the nation’s 11 million unauthorized immigrants have been in the country for at least a decade, according to the Pew Research Center, Nightingale worries that raids could force the swift removal of individuals who don’t have immediate proof of long-term residency. He has begun telling some people to carry such documentation, if possible.
Experts such as Pratheepan Gulasekaram, a professor at Santa Clara University School of Law, believe the number of expedited removals could increase exponentially. According to the most recent government statistics, the Department of Homeland Security ordered more than 176,000 people to be removed with fast-track deportations in 2014.
“Theoretically, somebody encountered in the middle of Kansas, who may have been in the country many years, is going to essentially be subject to expedited removal — that is a serious bill of rights, dueprocess problem,” said Gulasekaram. He predicts numerous legal challenges to any such expansion.
In his speech to Congress on Tuesday, Trump said that by “finally enforcing our immigration laws,” the country will “raise wages, help the unemployed” and save billions of dollars while enhancing safety.
But tougher immigration enforcement requires resources, including more federal agents, judges and detention facilities. In his memo, Kelly noted there are more than 534,000 cases — a record high — pending nationwide in immigration courts, and that some individuals won’t have cases heard by a judge for up to five years.
“This unacceptable delay affords removable aliens with no plausible claim for relief to remain unlawfully in the United States for many years,” Kelly said.
Those whose cases are heard in immigration court can hire an attorney to present their case in front of a judge, and they can appeal any removal order, first to a special board and then to a federal court. That’s not the case with expedited removals: An immigration officer arrests an individual and makes the deportation order on the same day, advocates say.
There is no right to appeal to a court, though individuals can ask for asylum by citing the purported danger of a return to their home country.
Gulasekaram said broadening expedited removals — or even discussing the prospect of doing so — could force immigrants into the shadows, making them “much more hesitant to engage in any form of communication with government, any officers, be they federal immigration officers or local.”
The shift could also dissuade some migrants from crossing the border to begin with, which is the goal of the Trump administration, he said.
“It creates a climate of fear,” Gulasekaram said. Hamed Aleaziz is a San Francisco Chronicle staff writer. Email: haleaziz@sfchronicle.com Twitter: @haleaziz