If a new proposal under consideration in the Department of Homeland Security goes into effect, undocumented immigrants who cannot prove they've lived in the country for more than two years would essentially be treated the same as people who just crossed the border. Immigration authorities would have the discretion to place these immigrants in "expedited removal proceedings," a fast deportation process that often skips the courtroom.
The draft proposal, which DHS officials leaked to Politico's immigration reporter, would dramatically change the timeframe in which a person is considered qualified for expedited removal: As Politico reports, the current standard applies only to people who have been in the country less than 14 days. The new policy would expand that timeframe to two years.
To grasp the full context of the Politico report, it's important to understand how expedited removal proceedings work.
How Expedited Removal Started
Under current United States law, certain undocumented immigrants do not receive due process: Once arrested, they do not have a right to an attorney and can be deported without ever seeing a judge.
This all began in 1996, when a collapsing Mexican economy led to increased illegal immigration to the U.S. As immigration courts got bogged down with deportation proceedings, Congress passed a new law that allowed the country's immigration authorities to summarily order the removal of recently arrived undocumented immigrants. The law (the Illegal Immigration and Immigrant Responsibility Act) was signed by President Bill Clinton in 1996 and then expanded under President George W. Bush in 2004, soon after Immigration and Customs Enforcement was created.
The law and its expansion created what is today known as the expedited removal process. Here's how it works: When Border Patrol or ICE officers apprehend an undocumented immigrant who either arrived at the border without papers or has been in the country less than 14 days (and is within the 100-mile border zone), those immigration authorities can order that person's removal without any court proceedings.
Because someone in expedited removal proceedings does not have the right to appeal the immigration officer's decision, the American Immigration Council argues that expedited removal gives individual immigration authorities—even low-level officers—"unchecked authority." Essentially, according to the AIC, "the immigration officer serves both as prosecutor and judge."
Proponents of expedited removal argue that the policy is necessary to allow the U.S. to enforce its border without overburdening the immigration system: In general, they say that someone who just crossed the border does not have the same claim to constitutional due process as U.S. citizens or long-time residents.
"[Expedited removal] permits federal officers to quickly and efficiently remove recent illegal entrants without the need to further clog up the docket of the immigration courts, which are tottering on the verge of collapse from overload," Dan Chandon, a former ICE official and current advocate at the anti-immigration Center for Immigration Studies, wrote in an open letter to President Donald Trump on April 17th. In the letter, Chandon asked the president to expand expedited removal.
Now, as part of an expedited removal expansion, the Trump administration has proposed that people who have been in the country less than two years are functionally the same as people who just crossed the border.
What Expanded Removal Could Mean
As Politico reports, the DHS draft proposal does not just change the timeframe in which someone can be placed in expedited removal proceedings—it also removes the border zone geographic requirement. This rule would hugely expand the number of undocumented immigrants who individual immigration officers could choose to summarily deport without due process.
The Politico report also notes that the draft proposal would apply the two-year limit to all immigrants who "cannot prove they've been present continuously in the U.S. for two years or more." This would place the burden of proof on the immigrants themselves to provide evidence that they've been in the U.S. long enough to avoid expedited removal, and could give individual immigration officers even more discretion to decide who goes into the streamlined deportation process.