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'The Border Has Become the United States': How a New Trump Administration Rule Will Expand Fast-Tracked Deportations

Hundreds of thousands of undocumented immigrants within the U.S. could be summarily deported without a day in court.
Undocumented immigrants leave a U.S. federal court in shackles on June 11th, 2018, in McAllen, Texas.

Undocumented immigrants leave a U.S. federal court in shackles on June 11th, 2018, in McAllen, Texas.

As many as 300,000 undocumented immigrants in the United States could become subject to fast-tracked deportations under a new rule to take effect this Tuesday expanding the scope of the expedited removal process. That is the estimated number of immigrants who entered the U.S. illegally and have been living in the country for less than two years, according to an analysis by the Migration Policy Institute based on data from the U.S. Census Bureau.

Under the expedited removal process, non-citizens without legal status or who committed fraud or made false claims when entering the country can swiftly be deported in one day without ever going before an immigration judge. Originally created in 1996, this summary form of deportation has been expanded over the years to apply to those apprehended within 14 days of their arrival and found within 100 miles of the border (an area known as the border zone). Now, under the new rule, basically anyone within the U.S. who fails to prove continued presence for at least two years might be deported via expedited removal.

Immigration attorneys and experts see this as one of the biggest changes put forward by the Trump administration so far.

"Until now, expedited removal has really been only applied to those individuals who recently entered at the border," says Aaron Reichlin-Melnick, a policy analyst at the American Immigration Council. "Now, that is being expanded to two years and the entire United States, so the border has expanded to the rest of the country. The border has become the United States."

The plan to introduce this measure was first announced as part of a 2017 executive order and started to take a clearer shape in April of this year. As stated in the rule itself, the expansion is intended to "remove certain aliens encountered in the interior more quickly, as opposed to placing those in more time consuming removal proceedings," to help "alleviate some of the burden and capacity issues" faced by the Department of Homeland Security and the Department of Justice.

The speedy nature of the expedited removal process, however, is precisely what raises concerns about potential due process violations. If an immigrant who might be subject to expedited removal expresses a fear of returning to their home country, for example, they should be referred to an asylum officer for a credible fear interview, which could lead to a hearing before an immigration judge. But previous reports have found that Customs and Border Protection often fails to take this step. The expansion of this already flawed process, Reichlin-Melnick says, provides more "opportunity for the rules to get broken, either intentionally or by mistake."

Although it isn't clear yet how the change will be implemented in practice, lawyers and activists worry about the immigration officers' unchecked authority in determining who has been in the U.S. for two years or less, the potential for racial profiling, and the resulting burden imposed on immigrants themselves. "Living in the shadows, unauthorized immigrants strive to exist without a document trail. Quickly convincing an immigration officer that they have been here for longer than two years will not be an easy task for many," Sarah Pierce, a policy analyst with the Migration Policy Institute posted on Twitter.

According to data from the Department of Homeland Security, in the fiscal year 2017, expedited removals represented 35 percent of all deportations.

Ultimately, experts argue, the expedited removal expansion will likely lead to more wrongful deportations, including of U.S. citizens, legal permanent residents, and long-term undocumented immigrants. "In many ways, this rule will allow ICE officers to become judge, jury, and executioner, deciding who's subject to expedited removal, determining whether or not it applies, and deporting people within days without any real chance to go in front of a neutral magistrate and say, 'Hey, this is wrong,'" Reichlin-Melnick says.

The American Immigration Council and the American Civil Liberties Union have already said that they will take the Trump administration to court to challenge the expansion.