Last week, to the consternation of millions, DHS Secretary John Kelly released two governmental memos setting forth plans on how to implement President Trump’s interior public safety and border security mandates that were issued in January. There was extensive media coverage spurring an already apprehensive undocumented population into paranoia and hysteria. The alarm is not without reason. The memo enacts large scale, blanket measures that place those without status at significant risk of being arrested, detained, and removed.
There are several notable changes to current policy, much of which is beyond the scope of one article. For one thing, many of the prior memoranda and guidance regarding prosecutorial discretion and enforcement priorities have been rescinded. In other words, they are no longer operative or controlling. Now, the Department of Homeland Security-through ICE, CBP, and USCIS-is directed to indiscriminately apply the punitive aspects of our immigration laws against practically all aliens subject to removal. An undocumented alien who has been charged with a speeding ticket is presumably just as much of a priority as an undocumented alien convicted of rape.
The expansion of expedited removal is another hallmark of the new Trump policy. The ramifications of this are arguably just as significant as the curtailment of prosecutorial discretion. While it is generally true that most foreign nationals within the United States who are charged with being removable are normally entitled to see an immigration judge, those who caught at our borders without documentation do not enjoy the same protections. The immigration laws provide that individuals apprehended at a port of entry who do not have proper documentation or who are charged with fraud or misrepresentation may be summarily removed by an immigration officer. This is called “expedited removal,” the provisions of which can be found in Section 235(b) of the Immigration and Nationality Act. The alien would not have any of the protections and due process that normally accompany a judicial hearing, including the right to counsel, the right to apply for certain forms of relief, and the ability to appeal adverse decisions. For those who have been in the country for some time, such a prospect seems unreal, but expedited removal is a routine procedure applied daily at our nation’s borders.
Traditionally, the provisions of expedited removal have been limited to those encountered within 100 air miles of the border and 14 days of entry, and aliens who arrived in the US by sea other than at a port of entry. Under the new proposed policy, regulations of which will need to be published in the Federal Register, expedited removal may be expanded significantly, well beyond how and where it currently applied. If taken to the extreme, expedited removal may be applied to any individual anywhere in the United States who cannot affirmatively demonstrate that he or she has been continuously physically present in the United States for two years prior to being charged with inadmissibility. As alarmed advocates argue, such a sweeping policy threatens to implicate not only undocumented aliens but also those with status who may not be carrying satisfactory documentation on them to prove two years physical presence. In terms of executing a mass deportation policy that effectively bypasses an already clogged court system, expedited removal may prove to be a ruthlessly efficient mechanism.
As of now, the actual guidelines expanding expedited removal have not yet been published. It is unclear to what extent its boundaries will be broadened. In any case, everyone who is potentially affected-which, frankly, can include anyone suspected of not having status, even US Citizens)-may want to start securing documentation of either one’s status and/or assembling documents that prove at least two years physical presence in the United States. For many, it is demoralizing to imagine that our immigration policies will be applied this way, especially considering the potential for abuse, but it seems increasingly realistic and practical to prepare, given the current trend and tenor of the Administration on immigration.
The above is general information only and not to be relied upon as legal advice. It does not create an attorney client relationship nor should it be relied upon as advice in lieu of consultation with an attorney.