Expand Expedited Removal, Mr. President

By Dan Cadman on April 17, 2019

Dear Mr. President:

Recently, exhibiting your dissatisfaction with the status quo, you accepted the resignations of your Department of Homeland Security (DHS) secretary and deputy secretary, and the acting director of Immigration and Customs Enforcement, saying you wanted tougher, bolder actions than apparently they were capable of providing.

For the moment, you've designated the Commissioner of Customs and Border Protection, Kevin McAleenan, to act as the DHS secretary, saying you think he'll do a good job. Personally, I disagree, and think you are destined for disappointment. McAleenan will never be another Tom Homan, Mr. President, and not just because his personal style is different. He has no skin in the game; he's just riding the margins. The problem is that he has no pedigree, no institutional knowledge whatsoever, in immigration matters; he hails from the customs side of the house โ€” and, yes, Mr. President, that does make a difference. No matter what new ideas are discussed in the inner counsels of government, McAleenan will forever be in catch-up mode, no matter how quick a study he is, because he doesn't have the background to know what works and what doesn't where immigration is concerned. But that's perhaps a conversation for another day.

At the moment, let me stay on focus here and suggest that while your advisors are looking around for new ideas to keep the momentum going, whether on the border or in the interior, there is something that they seem to have been overlooking from Day 1, and it's expedited removal (ER). I suggest you have them look carefully at the statute, found at Section 235(b)(1)(B)(iii) of the Immigration and Nationality Act (INA), codified at 8 U.S.C. ยง 1225(b)(1)(B)(iii). ER permits federal officers to quickly and efficiently remove recent illegal entrants without the need to further clog up the docket of the immigration courts, which are tottering on the verge of collapse from overload.

It's true that immediately at the border ER has lost much of its effectiveness because of abuse of the credible fear and asylum processes. But here's the thing: ER can be used throughout the United States. Its reach is long, because in theory it applies to:

[A]liens who arrive in, attempt to enter, or have entered the United States without having been admitted or paroled following inspection by an immigration officer at a designated port-of-entry, and who have not established to the satisfaction of the immigration officer that they have been physically present in the United States continuously for the 2-year period immediately prior to the date of determination of inadmissibility. [8 CFR 235.3(b)(1)(ii)]

There's a catch, Mr. President, yet it's a small, fixable one. The way the statute was written, it requires the commissioner of the (now-defunct) Immigration and Naturalization Service to designate its reach by promulgation in the Federal Register. The power of the commissioner passed to the DHS secretary with enactment of the Homeland Security Act.

Up until this very moment, though, Mr. President, no one with the authority has ever published a rule in the Federal Register ordering that expedited removal be applied on a nationwide basis. For this reason, at present, expedited removal may only be applied to aliens apprehended within two weeks and 100 miles of their illegal crossing.

Why expedited removal has never been expanded by your administration is inexplicable. Allegedly it was considered, and rejected, by your then-DHS Secretary John Kelly.

Stop and consider that expanding ER not only serves enforcement purposes within the interior, it also helps to some extent with border operations as well, because those aliens who are not apprehended immediately at the border โ€” and who therefore don't bother to make "credible fear" claims, however flimsy โ€” have for all intents and purposes shown that they in fact have nothing to fear, and if they attempt to belatedly make the claim after being arrested in the interior and processed for ER, the logical question to ask, which puts the lie to the claim, is a simple one: Why didn't you do that at the border?

So, Mr. President, while your new DHS team is still being reassembled to your satisfaction, and McAleenan and others are casting about for ideas, why not direct them to publish the rule in the Federal Register declaring, once and for all, that ER will be applied to the full extent contemplated by the law which, by the way, came into being in 1996, about 23 years ago.

Simple. Legal. Effective. Overdue.

Go for it.