On March 21, DHS announced that it is rescinding amendments put in place under the Trump administration to expand expedited removal to aliens who had entered the United States illegally less than two years prior to apprehension. It is the latest evidence that the Biden administration is deliberately wasting the immigration enforcement resources it claims to be preserving.
Background on Expedited Removal. Section 235(b)(1) of the Immigration and Nationality Act (INA) allows DHS to remove aliens (1) caught at the border entering the United States illegally, or (2) who apply for admission at a port of entry with fraudulent documents or no documents at all, without placing those aliens into formal removal proceedings before an immigration judge (IJ) -- i.e., in a expedited manner.
If, however, an alien subject to expedited removal asks for asylum or asserts a fear of harm if removed from the United States, the alien is sent to an asylum officer at USCIS to determine whether the alien has a “credible fear”, that is, whether the alien may be eligible for asylum.
Only if the asylum officer determines that the alien has a credible fear of return will the alien be placed into removal proceedings before an IJ; otherwise, the alien will be immediately removed.
Congress also gave DHS the authority in section 235(b)(1)(A)(iii) to apply expedited removal to aliens who entered illegally and who have been unlawfully present for two years or less. While that law was passed in 1996, various administrations only incrementally expanded the application of the expedited removal authority prior to 2019.
Expansion of Expedited Removal. When the Clinton administration first implemented the expedited removal provision, it applied that authority only to “arriving aliens”, that is aliens caught at the border or ports who entered illegally or without proper documents.
The George W. Bush administration expanded the application of section 235(b)(1) of the INA twice, first to aliens who came by sea and entered illegally and who had not been present for more than two years, and then to aliens who had entered illegally and who were apprehended within 100 air miles of the border and two weeks of entry.
The Trump administration expanded expedited removal to its statutory limits in July 2019, applying it to any alien who had entered illegally and was apprehended anywhere in the United States within two years of entry.
That was challenged by immigrant advocates in federal court and in September 2019, the U.S. District Court for the District of Columbia enjoined Trump’s expansion of expedited removal.
That injunction was reversed In June 2020, when the U.S. Court of Appeals for the District of Columbia held that the expansion of expedited removal was in DHS’s “sole and unreviewable discretion”, allowing the Trump expansion to go forward. Of course, by then the Covid-19 pandemic had set in, limiting ICE detention space.
The Biden Administration’s Rescission of the Expedited Removal Expansion. The Biden administration has now rescinded Trump’s expansion of expedited removal, under the same “sole and unreviewable discretion” standard announced by the D.C. Circuit.
That means that ICE officers in the United States will not be able to use that authority to quickly remove aliens subject to expedited removal under the Trump rules from the United States. That rescission demonstrates that, contrary to its other public statements, the Biden administration’s immigration enforcement restrictions have everything to do with not enforcing the law and nothing to do with ICE’s “limited resources”.
Biden’s Restrictions on Immigration Enforcement. There have been three formal memos issued by DHS under the Biden administration restricting the ability of ICE officers to enforce the immigration laws in the interior of the United States.
The first was issued by then-Acting DHS Secretary David Pekoske on January 20, 2021, captioned "Review of and Interim Revision to Civil Immigration Enforcement and Removal Policies and Priorities" (Pekoske memo).
The Pekoske memo imposed a 100-day moratorium on removals (later enjoined by a federal judge) and limited the “priorities” for immigration enforcement to three groups of aliens: terrorists and spies; aliens who entered illegally on or after November 1, 2020; and then-currently incarcerated criminals who had been convicted of an aggravated felony and who were “determined to pose a threat to public safety.
That was followed by a memo issued in mid-February 2021 by then-Acting ICE Director Tae Johnson, captioned "Interim Guidance: Civil Immigration Enforcement and Removal Priorities" (Tae Johnson memo).
The Tae Johnson memo slightly expanded on the third of those priorities (criminal aliens) to include aliens convicted of aggravated felonies who were not currently incarcerated, as well as certain alien gang members.
Finally, in late September, DHS Secretary Alejandro Mayorkas issued superseding guidance of his own, in a memo captioned “Guidelines for the Enforcement of Civil Immigration Law” (Mayorkas memo).
The Mayorkas memo loosened some of the restrictions on the ability of ICE officers to pursue aliens who did not fit within these three enforcement priorities (on paper, at least), and expanded the universe of criminal aliens considered to be priorities, focusing on aliens who have engaged in “serious criminal conduct”.
Still, the Mayorkas memo requires ICE officers to weigh several “mitigating” factors that have nothing to do with whether the alien is removable or not before taking enforcement action, such as “the impact of removal on family in the United States, such as loss of provider or caregiver”.
Such considerations carry no weight in determining whether to prosecute a person for murder; why should they be evaluated in deciding whether to remove an alien for a murder conviction?
The three memos share much in common, but the most significant commonality is that each contends such “priorities” cum enforcement restrictions are necessary because ICE has “limited resources”.
Pekoske memo: “In light of the unique circumstances described above, DHS’s limited resources must be prioritized.” Tae Johnson memo: “Like other national security and public safety agencies, ICE operates in an environment of limited resources. Due to these limited resources, ICE has always prioritized, and necessarily must prioritize, certain enforcement and removal actions over others.”
The Mayorkas memo takes this justification to a whole other level:
It is estimated that there are more than 11 million undocumented or otherwise removable noncitizens in the United States. We do not have the resources to apprehend and seek the removal of every one of these noncitizens.
. . .
We establish civil immigration enforcement priorities to most effectively achieve our goals with the resources we have. We will prioritize for apprehension and removal noncitizens who are a threat to our national security, public safety, and border security.
Of course, the “limited resources” excuse for ICE non-enforcement is both a canard and a dodge.
It is a canard because all resources are limited, regardless of the resource or who controls it. For all his money, Jeff Bezos, the world’s third-richest man (estimated wealth: $165.5 billion) cannot buy every yacht in the world. That does not mean, however, that he cannot afford a $500 million one that “breaks one world record after another”.
The “limited resources” plaint is a dodge because a review of the Pekoske, Tae Johnson, and Mayorkas memos reveals that “limited resources” is simply an excuse for DHS under the Biden administration not to remove the vast majority of aliens whom the mean, cruel Congress has told it to remove in the INA.
Mayorkas gives away this game in his memo, stating:
The fact an individual is a removable noncitizen therefore should not alone be the basis of an enforcement action against them. We will use our discretion and focus our enforcement resources in a more targeted way. Justice and our country's well-being require it.
“Justice” is great, but it’s a subjective term, as the “Quality of Mercy Speech” in Shakespeare’s “Merchant of Venice” makes clear: “Though justice be thy plea, consider this: That in the course of justice none of us should see salvation.”
“Our country’s well-being” (another subjective assessment) is another facially laudable goal, but in this instance, Mayorkas exceeds his own authority. When it comes to immigration, as “our country’s” courts have made clear, Congress makes the assessment of what is best for our “well-being”, not the unelected secretary of Homeland Security.
Expedited Removal Expansion Preserves ICE and Immigration Court Resources. That does not mean that DHS doesn’t have to make some judgment calls in enforcing those laws, because much like Bezos and yachts, ICE resources are not limitless. Which brings me back to Biden’s rescission of Trump’s expansion of expedited removal.
From a resource perspective, expedited removal is much more effective than the “regular removal” process, which requires IJs to issue removal orders after an often drawn-out series of hearings.
Under expedited removal expansion, on the other hand, ICE simply locates an alien who entered illegally in the past two years, detains the alien, questions that alien to see whether he or she has a fear of return, and removes the alien if the alien claims no fear of return or if such fear is not credible.
Even if you exclude aliens savvy enough to express a fear of return, expanded expedited removal is much more efficient from a resource standpoint, both for ICE and for the courts.
ICE attorneys represent the government in immigration court, and every case they don’t have to argue means another they can focus more attention on.
Don’t believe me? There is an entirely separate ICE memo issued by the Biden administration that calls on those lawyers to exercise their “prosecutorial discretion” and drop meritorious cases due to — you guessed it — their “limited resources”. The word “resources” appears 20 times in that memo, preceded by the adjective “limited” on five occasions.
The immigration courts would benefit even more than ICE from an expansion of expedited removal. There are fewer than 600 IJs nationwide, but they are dealing with a docket of more than 1.7 million cases — 2,833 cases per judge. It is little surprise, then, that the average removal case has a wait time of 875 days, or 2.4 years.
The Biden administration has now dumped all those cases back onto the IJs’ dockets by rescinding the Trump expedited removal expansion. If you want to break the immigration enforcement system in the United States, that’s where you start, because without removal orders, those aliens aren’t going anywhere.
The Rationale of Biden’s DHS for Rescinding Expedited Removal Expansion. Bizarrely, Biden’s DHS claims that ditching the Trump expedited removal expansion is mandated by — you guessed it — “limited enforcement resources”.
It asserts: “Retaining the expanded expedited removal authority would require time- and fact-intensive training for all current officers, agents, and supervisors that would detract from multiple new initiatives presently being introduced to the workforce to better serve enforcement priority mission areas.”
That assessment takes a particularly dim view of the capacities (mental and otherwise) of the officers in ICE’s Enforcement and Removal Operations (ERO) directorate, who would apply expanded expedited removal.
They already must determine whether a suspect is: (1) an alien; (2) an illegal entrant; and (3) where and when the alien entered illegally. The only new responsibility they would assume under an expansion of expedited removal is determining: (4) whether the alien has a fear of return. That’s not rocket science, as they are already familiar with asylum law.
Further, DHS now contends that expedited removal expansion “would come with increased risk of otherwise avoidable legal challenges to the agency's enforcement actions.” That is a misstatement of the litigation risk, given the fact that aliens in expedited removal receive more limited judicial review than aliens in “regular removal”.
In any event, if DHS is concerned about DOJ’s “limited resources”, the handful of cases that the lawyers at Justice’s Office of Immigration Litigation would have to handle to flesh out the legal parameters of expanded expedited removal would be a drop in the bucket compared to the tens of thousands of removal cases that IJs (also in DOJ) would not have to hear annually if there were an expansion of expedited removal.
Finally, DHS contends: “The fact that the expanded expedited removal authority was used so rarely by ICE officers during the approximately one year that it was available to them reflects the operational complexities and limited utility that it presented in practice.” You must ignore the history of that expansion — and the world in the past two years — for that statement to make sense.
Again, by the time that Trump’s DHS was allowed to apply expanded expedited removal in July 2020, pandemic-related health standards significantly limited ICE’s detention capacities. As the agency explained:
To ensure the welfare and safety of the general public as well as officers and agents in light of the ongoing COVID-19 pandemic response, [ICE] will temporarily adjust its enforcement posture beginning today, March 18, 2020. ICE's highest priorities are to promote life-saving and public-safety activities.
[ERO] will focus enforcement on public-safety risks and individuals subject to mandatory detention based on criminal grounds. For those individuals who do not fall into those categories, ERO will exercise discretion to delay enforcement actions until after the crisis or use alternatives to detention, as appropriate.
Expedited removal under section 235(b)(1) not only permits detention — it mandates detention. Trump’s ERO, reasonably, limited use of its finite detention resources accordingly.
Of course, starting on January 20, 2021, ERO was operating under Pekoske’s procrustean enforcement limitations, which allowed no chance for ICE officers to detain most of the aliens who would be subject to expanded expedited removal. Tae Johnson and Mayorkas simply continued that trend.
Biden’s DHS is banking on the fact that, thanks to the very D.C. Circuit decision that allowed ICE to utilize expanded expedited removal, no one will be able to challenge its rescission of that authority. Subject to section 235(b)(1) of the INA, the parameters of expedited removal are solely left to the DHS secretary’s discretion.
The Worst May Be Yet to Come. Chillingly, however, DHS suggests that it’s not done rolling back expedited removal yet: “The Secretary reserves his prerogative to determine in the future whether and to what extent new designations or further discretionary modifications of designations under” section 235(b)(1)(A)(iii) — which include the Bush expansions — “may be undertaken”.
Expedited removal preserves limited immigration resources. If Biden were serious about enforcing the immigration laws and preserving those limited resources, he would allow the Trump-era expansion of expedited removal to stand. Neither he nor his DHS is serious on either point, however — which is why they rescinded expanded expedited removal, and why the worst may be yet to come.