New Trump administration rule lets ICE rapidly deport undocumented immigrants without due process


The Trump administration is making good on its promise to rapidly detain and deport undocumented immigrants who live and work in the United States. According to a new notice by the Department of Homeland Security (DHS) published in the Federal Register on Monday, undocumented persons would be subject to rapid deportation without due process — a scheme known as “expedited removal” — if they have been continuously present in the United States for two years or less.

The measure would also remove the current requirement that expedited removal only be applied to undocumented immigrants arrested within 100 miles of a land border. Instead, expedited removal would be implemented nationwide, potentially increasing the number of removals by over 20,000. According to the Migration Policy Institute, 297,000 undocumented immigrants living in the United States could be subject to this expansion.

That number could be even higher, however, considering how even undocumented people who have lived in the United States for more than two years could be subject to expedited removal.

There are exceptions for unaccompanied migrant children and those who express a credible fear of returning to their home countries, meaning that there is a possibility for someone placed in expedited removal to remain in the United States while their case plays out in the courts. This option, however, is getting more tenuous by the day as the administration continues to issue rules that undermine the U.S. asylum laws.

In expedited removal proceedings, the burden of proof is on the undocumented person to prove to an Immigration and Customs Enforcement (ICE) officer that they have been continuously present in the United States for more than two years — or just 14 days if apprehended within 100 miles from border. This means that any undocumented person who fails to provide proper documentation to an ICE agent, regardless of how long they’ve been present in the United States, could be immediately deported.

“Part of the nature of being unauthorized in the United States is trying to live without a paper trail,” Sarah Pierce, an analyst at the Migration Policy Institute, told ThinkProgress. “It’s very, very unlikely that immigrants would have on them when they encounter an ICE officer evidence that they’ve been in the country for longer than two years.”

Until DHS issues guidance to ICE officers on what could constitute valid evidence of being continuously present in the United States, anything goes. Documents like library cards are effective, even geotagged social media posts could work. There is just one big problem: because expedited removal is subject to extremely limited judicial review, this gives ICE officers, who under the Trump administration have placed an emphasis on “enforcement” rather than “discretion,” complete authority.

“It’s not like they’re proving to a judge that they’ve been in the country for longer than two years,” Pierce added. “They are having to prove to the satisfaction of an immigration law enforcement officer that they’ve been in the country for longer than two years — that is an important added layer of difficulty to this.”

The most uneducated and poor members of the immigrant community, who likely who have even less documentation than other undocumented immigrants, will be the most impacted.

“That is so much paperwork to have on you all times, and that is just not realistic,” Kara Lynum, an immigration attorney based in Minnesota told ThinkProgress. “It’s a heavy lift to expect of people and I think that to the administration this is a feature of the rule, not a bug.”

A rule this large and consequential has been in the works since 2017, mere weeks after President Donald Trump was inaugurated.

News of the rule, which will be officially published on Tuesday, comes less than a week after the administration announced a crackdown on asylum that would all but eliminate the possibility of asylum for migrants from countries other than Mexico or Canada. While that rule does not apply to migrants already in the United States, all immigration measures work in tandem with one another to aid in the Trump administration’s end-goal of limiting migration as much as possible.

The American Civil Liberties Union (ACLU) and the American Immigration Council have announced that they plan to sue the administration in an attempt to stop this latest rule.

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