//  8/26/19  //  Commentary

One of the Trump administration’s latest policies is to dramatically expand the so-called expedited removal system. Under the previous expedited removal system, undocumented immigrants could be put on a fast-track for deportation if they were detained as far as 100 miles from the border within 14 days of their arrival in this country. Under the new system, any immigrant can be put on that fast-track regardless of geographic location so long as they cannot prove that they have been in the United States for two years.

The expedited removal system is part of the immigration enforcement machine. A “typical” immigration case involves a removal order issued by an immigration judge, which can then be appealed to the Board of Immigration Appeals, and later challenged in a federal court of appeals. The expedited removal system takes out some of these steps, including the last one—review in federal court. That is, under the expedited removal system, immigration officers make a final determination about removal and deportation. And they also do so on an expedited basis.

Litigants have challenged the expedited removal system on several grounds, arguing (among other things) that the expedited removal system violates due process and the suspension clause because it allows the executive branch to detain and remove someone without allowing that person to challenge their detention and removal in federal court. In INS v. St. Cyr, the Supreme Court stated that executive detentions, including detentions that occur in the course of immigration proceedings, are a core part of what the suspension clause was concerned with—and the kind of detentions for which habeas corpus should be available.

The courts of appeals that have upheld the expedited removal system have relied on the executive’s power over immigration and admission into the United States. But they have also relied on the limited scope of the expedited removal system.For example, the Third Circuit concluded that the Constitution allows Congress to “deny habeas review in federal court … as to aliens who .. were apprehended very near the border and, essentially, immediately after surreptitious entry into the country.” (Emphases ours.) The court continued: “[The immigrants] were each apprehended within hours of surreptitiously entering the United States, so we think it appropriate to treat them as aliens seeking initial admission to the United States.” (Emphases ours.) The court rejected cases that supported the immigrants’ position because they “did not involve aliens .. who were apprehended immediately after entry.” It noted that “the Supreme Court has suggested … that recent clandestine entrants like [the immigrants in the case] do not qualify for constitutional protections based merely on their physical presence alone.” (Emphases ours.) And, as if there was any doubt, the court continued: “We thus conclude that, as recent surreptitious entrants deemed to be “alien[s] seeking initial admission to the United States,” Petitioners are unable to invoke the Suspension Clause.””    

The administration’s significant expansion of expedited removal erases the factual predicates upon which the system has been legally justified.

The administration’s changes also unsettle the law on expedited removals.

The availability of habeas corpus is no small thing, because it provides the last protection against the justice system incorrectly detaining someone (or in this case, detaining and removing someone). Habeas corpus protects us against the risk of errors. Just imagine a situation in which an overzealous or overworked border patrol agent wrongly believes a U.S. citizen to be an undocumented immigrant.

Well you don’t really need to imagine it: this has already happened. The Trump administration’s aggressive immigration enforcement, coupled with its xenophobia and racism, have generated a significant number of errors. An 18-year-old boy who was born in Dallas was detained for three weeks even though he was carrying U.S. birth certificate documents. He said he was ready to agree to deportation just to escape the filthy hellhole in which he, along with so many others, was held. A 9-year-old girl, also a U.S. citizen, was detained for more than a day after she tried to cross the border in order to make it to school on time. 

The stakes for these cases could not be higher. Less than two months after Jimmy Aldaoud was deported to Iraq, he died. Aldaoud had never been to Iraq and didn’t speak the language; he was also diabetic and suffered serious mental illnesses. The United States deported him there anyway.

Habeas corpus exists to protect against these kinds of errors. Indeed, one factor in Court’s Suspension Clause jurisprudence, which determines whether a given individual can file a habeas petition, is the risk of error.  By dramatically expanding the scope of the expedited removal system beyond persons who were apprehended near the border who have been in the United States for less than two weeks, the Trump administration has increased the risk of error exponentially.

If it is possible to detain an 18-year-old American who is carrying his birth certificate for three weeks, holding him in a cell where 60 other men sleep without a shower, toothbrush, or more than one toilet, then it is surely not unfathomable that Americans or asylum seekers who have a right to enter this country might be erroneously put through the expedited removal system. It is not implausible that one of the swiftly hired immigration judges who is processing a bunch of cases might very rapidly deem them removable. What then? Given the quick timeline of these cases, there will be no outcry in the media. And under Trump’s expedited removal system, there will be no federal court to correct the removal order. The expansion of the expedited removal system increases the necessity of habeas corpus even as it attempts to deprive people of it. And that should trouble us all.




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