Understanding the Expansion of Expedited Removal
The long-expected announcement of the expansion of expedited removal authority throughout the United States, just a week after the administration rewrote the rules on establishing a credible fear of persecution or torture, is like a 1-2 punch for due process and the right to seek asylum.
Expedited removal, a product of the 1996 Illegal Immigration and Immigrant Responsibility Act, gives low-level immigration officials the power of judge, jury, and executioner of deportation orders. This is particularly disturbing given the record of misconduct and lack of accountability that permeates federal immigration enforcement. Expedited removal authorizes immigration officers to summarily arrest, detain, and deport people believed to be in violation of two provisions of immigration laws. The American Immigration Council has a good primer on expedited removal here.
These provisions - INA 212(a)(6)(C) and (a)(7) - render people "inadmissible" to the United States based on misrepresentation or failure to have required documents for entry.
No actual proof of these violations is needed. There's no appeal. The penalty: a five-year bar to returning to the United States on a visa.
These provisions are slippery creatures. Here's how these laws work in practice.
A political dissident escapes their country after spending weeks in jail for attending a political rally. They have a visitor visa to the United States, granted to them so they can travel to this country for a conference of democracy activists, so they buy a plane ticket and head for safety. When they finally arrive at the U.S. airport, exhausted from a long flight and worn out after weeks of imprisonment and torture, they present their lawfully obtained visa to the immigration official. But, when they tell the officer that they want asylum, they invalidate their visitor visa because they say they want asylum, not just to visit. They have violated INA 212(a)(6)(C). Immigration officials arrest, detain, and interrogate them. They sit for hours without food or access to a phone. An immigration agent with little training on the political situation unfolding in this far-flung nation has the power to return them on the spot. No judge. No lawyer. No hearing.
Years ago, one of our volunteer attorneys called for help finding out what had happened to friend's mother. The elderly grandmother had come to the U.S. for her annual visit. Her flight arrived, but she never came out of immigration control. Days later the woman made contact with her frantic children. She had been deported under the expedited removal laws. Apparently immigration officials saw other travelers with a similar last name on the flight who did not have visas. They accused her of being in cahoots with them. Eventually, after spending the night in an interrogation room at the airport, she was sent home with an expedited removal order. Five years of missed school plays and family celebrations were the result.
For years this extraordinary authority was limited to people arriving at airports and sea ports. Then the power expanded to people found within 100 miles of a U.S. border who couldn't prove they had been in the country at least 14 days. (For my Minnesota friends, that meant that a visit to the North Shore could result in being pulled over, questioned by Border Patrol, and followed to your campsite - at least if you don't "look Minnesotan" - as we documented in our 2014 report on immigration in Minnesota).
Now the Department of Homeland Security has expanded this sweeping power with plans to apply it to anyone, anywhere in the United States who cannot prove they have been here at least two years. Having lawful immigration status - or even being a U.S. citizen - is no guarantee that you won't be questioned about your status or your documents. According to an NPR report, hundreds of U.S. citizens each year face detention and deportation. (And, let's not forget, the United States has engaged in mass deportation of U.S. citizens to Mexico during the Depression, when "up to 1.8 million people of Mexican descent - most of them American-born - were rounded up in informal raids and deported in an effort to reserve jobs for white people.")
The law treats people at the border differently. And bit by bit the "border" has expanded so that race-based traffic stops, document checks on trains and buses travelling in the northern part of the country, and roadblock checkpoints throughout the southwest all have become routine.
But the immigration law cannot override foundational constitutional protections against arbitrary arrest, incommunicado detention, disappearance, and torture.
So what should people do?
#1 Know your rights. Throughout the past weeks, as threatened ICE raids put communities on high alert, we saw examples of how making ICE play by the rules works to protect people. If you want a good overview of the constitutional limits on search and seizure, check out ICE's own training on the Fourth Amendment. (Thanks Mijente and Detention Watch Network for forcing ICE to turn over it's 2017 Operation Mega documents).
You have the right to remain silent. Immigration officials like to rely on people's admissions of unlawful presence.
You have the right to refuse to let ICE into your home unless they have a warrant signed by a judge. ICE likes to show up with administrative warrants of arrest or removal, which are not enough to authorize them to enter your home.
Remember that even the draconian expedited removal procedures have a review process. People who fear persecution or torture have a right to a review of their claim. People who claim U.S. citizenship, lawful permanent residence, or refugee or asylum status have a right to a "claimed status review" before being deported under expedited removal laws.
#2 Plan ahead. You don't have to carry a giant folder of documents with you, but gathering your important papers together and storing them in a safe place where a trusted person can access them is a smart move. Help people who may have trouble explaining or even knowing their status know what to do if ICE asks them questions.
#3 Sue. Seriously. Immigrant rights organizations around the country are planning litigation, but individuals whose rights are violated need to step forward. Violations need to be documented and accountability demanded.
#4 Speak out. The expansion of expedited removal was announced in the Federal Register on July 23, 2019. Public comments will be taken for 90 days. You may submit comments, identified by Docket Number DHS-2019-0036 using the Federal e-Rulemaking Portal at https://www.regulations.gov.
Call your congressional representatives at 202-224-3121 and ask them to restore due process by repealing the expedited removal laws.
By Michele Garnett McKenzie, Deputy Director of The Advocates for Human Rights