//  8/19/19  //  Commentary

The Solicitor General recently filed a petition for certiorari asking the Supreme Court to review a constitutional challenge to the so-called expedited removal system. The Court should deny the petition, for no other reason than that the Trump administration --within the last month--announced that it is dramatically expanding, and therefore radically altering, the scope of the expedited removal system. Any determination the Court might make about the expanded expedited removal system would therefore be premature; and any determination it might make about the expedited removal system as it previously existed would not address the expedited removal system that has replaced it. Moreover, there is a risk that the administration would inappropriately use a Supreme Court decision upholding a much narrower version of the expedited removal system to justify a dramatically larger version of the expedited removal system.

The so-called expedited removal system allows the Department of Homeland Security and Immigrations and Customs Enforcement to put some number of immigrants on the fast-track for deportation. Section 8 U.S.C. 1225(b)(1)(A)(i) provides that “if an immigration officer determines that an alien who is arriving in the United States…the officer shall order the alien removed from the United States without further hearing or review.” This provision applies to anyone “who is not in possession of a valid unexpired visa, reentry permit, border crossing identification card, or other valid entry document required, and a valid unexpired passport” --i.e., undocumented immigrants.

When the statute says “without further hearing or review,” it means it. Another provision directs that “a removal order entered in accordance” with the provisions “is not subject to administrative appeal” unless permitted by the Attorney General. Another provision provides-- and this is the big one-- that federal courts “shall not have jurisdiction to hear any claim attacking the validity of an order of removal entered” under the expedited removal provisions. That does away with judicial review of immigration decisions, which is something that is otherwise available. The result is that when someone is placed, essentially at the sole discretion of the Attorney General, into expedited removal, they lose their ability to contest their case before a federal judge.

The statutory scope of who could be included in the expedited removal program is large, but no other administration has tried to use it against all possible persons. By its terms, the expedited removal provision applies only to “an alien who is arriving in the United States or is described in clause (iii).” Under clause (iii), “the Attorney General may apply [the preceding provisions] to any or all aliens described in subclause (II) as designated by the Attorney General.” Subclause (II) allows the Attorney General to apply the expedited removal system to “an alien … who has not been admitted or paroled into the  United States, and who has not affirmatively shown, to the satisfaction of an imigration officer, that the alien has been physically present in the United States continuously for the 2-year period immediately prior to the date of the determination of inadmissibly.”

But previous Attorney Generals have not used their expedited removal authority so broadly. Rather, they applied expedited removal only to those persons who “arrived by sea” or who entered by land and “were encountered by an immigration officer within 100 air miles of the United States international land border and were continuously present in the United States for less than 14 days immediately prior to that encounter.”

Enter William Barr and Kevin McAleenan. DHS recently issued a notice in which it reminded everyone that the “Secretary of Homeland Security” has “the sole and unreviewable discretion to modify at any time” the limits on the scope of the expedited removal designation. And, it continued, the “Secretary of Homeland Security is exercising his statutory authority to designate for expedited removal the following categories of aliens not previously designated”:

(1) aliens who did not arrive by sea, who are encountered anywhere in the United States more than 100 air miles from a U.S. international land border, and who have been continuously present in the United States for less than two years; and (2) aliens who did not arrive by sea, who are encountered within 100 air miles from a U.S. international land border, and who have been continuously present in the United States for at least 14 days but for less than two years.

In other words, they want to use expedited removal against absolutely anyone they can--anyone who has been continuously present in the United States for less than two years. More accurately, they want to use the expedited removal system against anyone who cannot prove, to the satisfaction of an immigration officer, that they were continuously present in the United States for more than two years.

That is a very different system than the more limited version of expedited removal that had previously been in place. Under the previous system, the only people subject to expedited removal were those persons who were continuously present in the United States for less than 14 days and who were apprehended less than 100 miles from the border could be subject to removal. Now the system applies to anyone who was apprehended anywhere, and who has been continuously present in the United States for less than two years.

Yet the Solicitor General sought review in a case that involved the *old* expedited removal system. The court of appeals and district court adjudicated constitutional challenge to the previous expedited removal system. And since the Supreme Court is a court of review, not first review, that would (in theory, at least) be what the Supreme Court limited its own adjudication to.

In this particular case, the court of appeals had found the more limited expedited removal system unconstitutional. This view aligns with several commentators and the Court’s modern (or at least pre-Kavanaugh) Suspension Clause jurisprudence.

Now imagine if the Supreme Court were to review this case *but limited its review to the previous, more limited expedited removal system.* That is, what if the Court said “we are going to review the expedited removal system as it existed prior to this DHS memo,” and then said that the more limited version of the expedited removal system is constitutional. (The courts of appeals that have upheld the expedited removal system have focused on the 14-day and 100-mile limits, as we’ll discuss in a subsequent post.)

That would create a real danger that the government and some courts would use the Court’s blessing of a more limited system of expedited removals as a basis to allow the government to run its much more expansive expedited removal system. If you think the Trump administration wouldn’t illogically go from a ruling that says “this old, more narrow system is okay” to an argument claiming that such a ruling really means that the new, drastically expanded system is okay, then you friend must not have been reading Trump’s tweets after the Mueller report came out.

Of course the Court could go further and ignore its own rules about what it will review and proceed to decide on the constitutionality of the newly expanded system of expedited removals--even though no court has weighed in on it yet, and even though there is no information on the record of how the expedited removal system operates. That option seems unlikely to us, but stranger things have happened when the Trump administration has asked the current Court to bend over backwards and dispense with a few rules in order to rule in its favor.

Either one of these options--review the previously existing system, or be the first court to weigh in on the new system-- strikes us as bad. There is no reason to take a case on a system of expedited removals that no longer exists, because adjudicating that case will not resolve the constitutionality of the system of expedited removals that has replaced it.

That the Solicitor General made this request is unsurprising, however, in light of the SG’s recent history of aggressive litigation tactics. The tactics in this particular case call to mind another recent immigration case--Jennings v. Rodriguez.

In Rodriguez, the Court was asked to review the system of prolonged immigration-related detentions without individualized bond hearings. In that case, the plaintiffs asked for--and the court of appeals granted them--the ability to have bond hearings after they were detained for at least six months. (The bond hearings did not necessarily result in release; they just meant that there had to be an individualized determination about whether an individual was a flight risk or risk to national security.)

The federal government represented in Rodriguez that those bond hearings weren’t necessary in light of the existing system for parole. (Parole allows the immigration authorities to release some persons who are subject to immigration proceedings; they are different than bond hearings.) The existence of those bond hearings came up several times at oral argument--as a  reason not to fear the prospect of long-term detentions of persons who do not pose flight risks or national security threats. Parole, the logic went, ensured that individuals weren’t detained unnecessarily; therefore, there was no reason for bond hearings.

A reasonable person might be convinced by that argument...if you didn’t tell them that it turns out the Trump administration didn’t really want parole either. In a memo that was uncovered later (during some Senate probing into the administration’s family separations), it turns out that before the Court’s decision in Rodriguez, the Trump administration had floated the prospect of getting rid of parole… but only after a decision in Rodriguez. In other words, the administration convinced the Court to uphold the system of long term detentions without bond hearings based on the prospect of parole, and then planned to do away with parole once a decision came down.

Those machinations, Leah suggested at the time, revealed some of the perils of government lawyering during the Trump administration. Lawyers were dealing with fundamentally dishonest (and racist!) clients; they could not and should not trust them.

In this instance, however, we already know the kind of change the administration plans to make because they have already made it: a dramatic expansion of the expedited removal system. So is the Solicitor General still going to press the Court to pass on the constitutionality of the prior system? If so, we hope the Court does not take him up on that request.



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