The Trump administration's plan for putting hundreds of thousands of recent migrants in the country illegally onto a fast track for deportation is likely to trigger the next major legal battle over immigration enforcement.
Judges have put on hold the president's temporary ban on travel to the U.S. from seven Muslim-majority countries. That executive order, as originally proposed, could have affected tens of thousands of travelers and U.S. visa holders.
But the administration’s efforts to step up immigration enforcement and streamline deportation — outlined in memos from Homeland Security Secretary
One part of that effort — the expanded use of what the law refers to as expedited removal — is almost certain to face a constitutional challenge in the courts.
Until now, this fast-track process has been used to hold and quickly send back migrants who were picked up within days of having crossed the border. The legal justification has been that those people, having just entered the country illegally, had no legal rights, except perhaps to request asylum from persecution in their home country.
Noncitizens living in the country illegally can be arrested and held for deportation, but they have had a right to a full hearing before an immigration judge before they can be removed from the U.S. At such a hearing, they may rely on the help of a lawyer and can argue they have family and work ties here. If a ruling goes against them, they may appeal in the immigration courts and in federal court. The process typically takes years.
In his Feb. 20 memo, however, Kelly complained the immigration courts were clogged and the removal process was too cumbersome, and he called for a new approach.
"The surge of illegal immigration at the southern border has overwhelmed" the system, he said. "There are more than 534,000 cases currently pending on immigration courts dockets nationwide — a record high." In some areas, he said, it takes "as long as five years" for a case to be heard by an immigration judge.
To speed up deportations, Kelly proposed to use expedited removal, with no hearings before a judge, for those immigrants who cannot prove they "have been continuously present in the United States for a two-year period" prior to their arrest. The new procedures would not be limited to border areas and could be used to deport immigrants living in the interior of the country.
Kelly said the law since 1996 has authorized the government to "remove aliens expeditiously," and he said his agents "shall make full use of these authorities."
Immigrants rights advocates voiced alarm. The American Immigration Council said this approach means a Homeland Security agent "operates as prosecutor and judge and often arrests an individual and orders him or her deported on the same day. With limited exceptions, the government takes the position that noncitizens subject to expedited removal have no right to appeal."
Civil liberties lawyers also call that proposal unconstitutional, and they expect to sue if the Trump administration puts the new policy into effect.
"We believe 'expedited removal' fails to afford a meaningful opportunity to defend oneself, and that, whatever its validity when employed at the border, it would be unconstitutional as applied to those living among us who are entitled to full due process protection," said David D. Cole, national legal director for the American Civil Liberties Union.
The Supreme Court has repeatedly said that immigrants, even those who are here illegally, are protected by the Constitution's guarantee of due process of law.
The justices cite the 5th Amendment, which says, "No person shall be … deprived of life, liberty or property, without due process of law." Because the language refers to "no person," not to "no citizen," its protections cover "even one whose presence in this country is unlawful, involuntary or transitory," the court said unanimously in 1976.
But how much process is due for immigrants who entered illegally or overstayed their visas remains "a gray area," said UCLA law professor Hiroshi Motomura.
"It's possible that a court might find that a full immigration court hearing isn't constitutionally required," he said. But it is also possible "that a single field agent making the decision is constitutionally deficient."
Jessica Vaughan, policy director for the Center for Immigration Studies, which advocates for reducing the level of immigration to the U.S., said the Trump administration is simply following the law.
"Expedited removal is a form of due process provided by Congress," she said. People who did not enter the country legally "have no plausible claim to be able to stay. It doesn't make sense to let them prolong their stay by asking for a court date."
But Peter Margulies, who teaches immigration law at Roger Williams University in Rhode Island, said due process of law usually refers to the right to a hearing. An immigrant who is arrested "should get a fair chance to present her case. And that means an adversarial hearing before an immigration judge," he said. "The expanded expedited removal contemplated by the DHS memo is a recipe for runaway discretion."
Still, he said he was not confident the Supreme Court would see it that way. "This could be a 4-4 split, and it will be up to Justice (Anthony M.) Kennedy," he said.
By coincidence, the high court has two pending cases that turn on the constitutional rights of noncitizens. In a Los Angeles case, Jennings vs. Rodriguez, the justices will decide whether immigrants who are held for deportation have a right to a bail hearing after six months. The government is appealing a 9th Circuit Court ruling that these people have a right to be released on bond if they are not a flight risk and pose no danger.
And in Hernandez vs. Mesa, the court will decide whether the parents of a Mexican teenager can sue the U.S. agent who shot and killed their son as he stood in the concrete culvert that marks the border.
The rulings, due by June, may clarify the constitutional protections for immigrants, but that would be just a start, said Cornell law professor Stephen Yale-Loehr.
"These executive orders have not received the same media attention as the president's travel bans. But they will eventually impact millions of more people. Many more people will be detained and deported," he said.
"And we will be litigating this for years."
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