On September 27, 2019, Judge Ketanji Brown Jackson of the U.S. District for the District of Columbia issued an injunction of the July 23, 2019, expansion of expedited removal by the Department of Homeland Security (DHS) to the full limits of that procedure permitted by Congress. In the course of reaching that decision, the court relied a lot upon the fact that DHS failed to consider the ramifications of that action, ramifications that Congress already considered in permitting such expansion to begin with.
"Expedited removal" is a procedure by which an alien who has entered illegally, or has sought entry without proper documents or through fraud, can be removed by DHS, without a formal removal proceeding. In a post about that expansion on July 24, 2019, I explained that, in a long overdue action, DHS had issued a Notice in the Federal Register expanding expedited removal under section 235(b) of the Immigration and Nationality Act (INA) to any alien who is apprehended after entering the United States without admission or parole and who has not been physically present in the United States for two years or more, in accordance with authority provided by Congress under section 235(b)(1)(A)(iii)(II) of the INA.
In his opinion, Judge Jackson noted that since the passage of the expedited removal provisions in section 235(b)(1) of the INA in 1996, the attorney general (AG) and later DHS had gradually been expanding the authority to apply expedited removal, first limiting it only to "arriving aliens" seeking admission to the United States; then later applying it to aliens who had entered illegally by sea who had been present in the United States for less than two years; and then (in 2004) to aliens who had entered illegally across a land border who were apprehended within 14 days of entry and 100 air miles of that border.
Congress gave the AG (later DHS) the authority to apply that procedure to any alien apprehended within the United States within two years of that alien's illegal entry, but that policy was not expanded to its full legal limits due to a lack of DHS capacity, not due to the effect that such an expansion of expedited removal would have on the aliens who would otherwise be subject to that procedure.
As Judge Jackson found in her opinion, "existing DHS regulations governing expedited removal requires the detention of its subjects ... where traditional proceedings do not." As an aside, she could have added that the Supreme Court, in Jennings v. Rodriguez, held that aliens in expedited removal proceedings who were found to have a credible fear could be detained indefinitely, in accordance with section 235(b)(1)(B)(ii) of the INA, which states: "If the [asylum] officer determines at the time of the interview that an alien has a credible fear of persecution ... the alien shall be detained for further consideration of the application for asylum." Or she could have added that in Matter of M-S-, the AG found that aliens who are placed in removal proceedings after a positive credible-fear finding are ineligible for bond. Or, she could have simply referenced section 235(b)(1)(B)(IV) of the INA, which mandates the detention of an alien in expedited removal proceedings for a credible-fear determination, or removal if credible fear is not found.
Back to the connection between limitations on expedited removal and limited immigration-enforcement resources. As the July 23 Notice stated:
The 2004 Notice explained that in the interest of focusing limited resources "upon unlawful entries that have a close spatial and temporal nexus to the border," the 2004 Notice did not implement "the full nationwide expedited removal authority available to DHS." It did, however, expressly reserve to DHS the option of "implementing the full nationwide enforcement authority of the statute through publication of a subsequent Federal Register notice."
In recent years, increasing numbers of aliens have been detained after being apprehended within the interior of the United States, necessitating a change in the focus of limited government resources to include the use of expedited removal proceedings for aliens apprehended within the U.S. interior, as well as near the border.
Those resources are, indeed, limited. I have written in the past about the need for more immigration judges (and better laws) to handle the increase in the backlog of cases before the immigration courts, which stood at 1,007,155 through August 2019. And Congress has not only refused to fund sufficient detention space, it has actually cut the number of detention beds that are available. Deporting aliens who are not eligible for relief more quickly, and removing those aliens who would otherwise be subject to expedited removal from the future backlog, would address both of these issues, and enable DHS to use the beds available to it more efficiently. As the July 23 Notice stated:
In light of the ongoing crisis at the southern border, the large number of aliens who entered illegally and were apprehended and detained within the interior of the United States, and DHS's insufficient detention capacity both along the border and in the interior of the United States, DHS is issuing the New Designation to use more effectively and efficiently its limited resources to fulfill its mission to enforce the immigration laws and ensure the security of the Nation's borders.
Judge Jackson based her opinion on the fact that DHS failed to comply with the Administrative Procedures Act (APA) because the department did not engage in notice and comment rulemaking before it issued the July 23 Notice. She further held:
Plaintiffs are also likely to succeed on the merits of their contention that the July 23rd Notice is arbitrary and capricious, and therefore unlawful, because DHS failed to address significant flaws in the expedited removal system, nor does it appear that the agency considered the potential impact of the expansion of that system on settled undocumented non-citizens and their communities.
One brief note on the APA claim. The expedited removal statute specifically states that the AG may apply the expedited removal provisions to "an alien who has not been admitted or paroled into the United States" who fails to show, "to the satisfaction of an immigration 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 inadmissibility." It continues: "Such designation shall be in the sole and unreviewable discretion of the" AG, and "may be modified at any time."
Respectfully, this calls into question whether the APA, or any notice, is required at all before the AG then, or DHS now, expands expedited removal to any alien present in the United States for less than two years following an illegal entry.
Focusing on the arbitrary and capricious argument, however, Judge Jackson noted that plaintiffs had adduced instances in which aliens were improperly subjected to expedited removal in the past, as well as to failures by DHS to comply with the procedures that governed the expedited removal process. As she found:
Boiled to bare essence, Plaintiffs' arbitrariness claim appears to be that the flaws in the pre-existing scheme were so glaring that the agency's failure to account for them when it adopted the New Designation renders the July 23rd Notice irretrievably infirm.
Again, respectfully, a handful of anecdotes about errors in a system through which hundreds of thousands of aliens have been processed is hardly sufficient to call into question whether greater notice was required. More egregious from my perspective, however, were the court's findings with respect to DHS's failure to consider the effect of an expansion of expedited removal on the aliens themselves, as well as their communities.
As Judge Jackson stated:
Because of the potentially serious implications that DHS's expansion of expedited removal might have on the persons who would be subjected to expedited removal under the New Designation, as well as the potential impact on their families and the communities in which they live — DHS admits that its new designation could subject "hundreds of thousands" of non-citizens to rapid removal ... — the Court is persuaded that there is a substantial likelihood that DHS "entirely failed to consider an important aspect of the problem," ... before issuing the July 23rd Notice, and as result, that the agency failed to engage in reasoned decision making, as required by law. ... In particular, it appears to the Court that DHS only considered the upsides of the New Designation in terms of its potential effects on "national security and public safety" and the fact that the rule had the potential of "reducing government costs[.]" ... But there is no evident consideration of the considerable downsides of adopting a policy that, in many respects, could significantly impact people's everyday lives in many substantial, tangible, and foreseeable ways.
[A]n agency cannot consider only the perceived shiny bright spots of a policy that it is mulling — the silver lining, if you will. To make a reasoned decision that passes muster under the APA, the agency must also attempt to forecast the storm clouds that might be spawned if it adopts the proposed policy, and it must at least acknowledge the potential impact that such dark clouds might actually have on the people and communities the policy would affect.
Again, respectfully, there was no reason for DHS to have considered the effects of expansion of expedited removal "on the people and communities the policy would affect" — Congress has already done that, in giving the executive branch the authority to expand expedited removal as broadly as it has. That question is settled, and there is nothing in the expedited removal provision, or in the statute that provided for expedited removal (the Illegal Immigration Reform and Immigrant Responsibility Act of 1996), that suggests that such considerations are salient in the least.
Two additional facts are of note in this regard: First, no level of hardship, either to the alien, a family member of the alien, or the community in which the alien lives resulting from the alien's removal (either as a result of expedited removal or following removal proceedings before the immigration court) would make an alien who has been present for less than two years after an illegal entry eligible for relief. Rather, an alien who enters the United States illegally does so at the risk (real or illusory) that the alien could be removed from the United States at any time, and is therefore solely responsible for any hardship that might accrue to a family member or the community.
Second, as the court itself notes, immigration officers have the discretion not to place an alien who is otherwise amenable to expedited removal into the expedited removal process. As Judge Jackson states in footnote 8:
The July 23rd Notice does not alter the substantial degree of officer discretion that DHS has always afforded with respect to whether expedited removal will be imposed in any given case. That is, even if an undocumented non-citizen is covered by the expanded designation, the immigration officer who is considering the matter has "broad discretion to apply expedited removal" or to "permit certain aliens otherwise eligible for placement into expedited removal proceedings" to resolve their immigration status through other means, including by placement in "full removal proceedings[.]" [Emphasis added.]
In other words, there is already an option for a truly deserving alien to escape the consequences of expedited removal; there is no need to hold up implementation of the law for DHS to consider the possibility further.
It will now be up to the DC Circuit court to allow DHS to utilize this authority. Not that it has done so in the more than two months the expansion has been in effect; Judge Jackson notes in her decision that "government counsel reminds us that the agency has not yet acted to impose the policy on ... any of the individuals whom it affects," raising the question why it has failed to use this effective tool prior to the court's decision.