The Time Has Come to Expand the Reach of Expedited Removal to Its Full Statutory Potential

By Dan Cadman on July 18, 2017

A few days ago, the Washington Post published an article titled "In memo, Trump administration weighs expanding the expedited deportation powers of DHS", an account apparently based on one of those pesky leaks that have plagued the administration from its earliest days.

The leak in this case is a memo detailing the consideration of expanding a policy that permits the prompt removal of illegal aliens without the need to present them to an immigration judge for a removal hearing first:

Since 2004, the [Department of Homeland Security] has been authorized to bypass immigration courts only for immigrants who had been living in the country illegally for less than two weeks and were apprehended within 100 miles of the border.

Under the proposal, the agency would be empowered to seek the expedited removal of illegal immigrants apprehended anywhere in the United States who cannot prove they have lived in the country continuously for more than 90 days, according to a 13-page internal agency memo obtained by The Washington Post.

The Post's article is accurate, as far as it goes — it just doesn't go far enough. The authorization to bypass the courts is based on a provision of law, Section 235(b) of the Immigration and Nationality Act (INA), codified at 8 U.S.C. § 1225(b). That provision of law in the INA was amended by the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 and took effect the following spring; thus, the reference to 2004 is in some ways misleading.

The applicability of these "expedited removal" processes is potentially much more extensive than one would think based on the Post's reference to that date. That's because the statutory provision relies on the Code of Federal Regulations (CFR) to flesh out its reach. The pertinent regulation, 8 CFR 235.3(b)(1)(ii), specifies that how extensively expedited removal proceedings will be applied is up to the commissioner of the Immigration and Naturalization Service (INS).

It is the regulation — not the law — that was last modified in 2004, and the limits established then on use of expedited removal reflect perceived political considerations, not the full boundaries of the statute. Section 235(b) is applicable, should the DHS secretary choose to extend it by rule, to any alien, anywhere in the United States, who has not been admitted or paroled, and who cannot prove to the satisfaction of the immigration authorities that he or she has been continuously present in the United States for at least two years.

The problem is that neither past Democratic nor Republican administrations chose to extend the use of expedited removal to its full potential, choosing instead to limit it both geographically and chronologically, by regulation, to a small subset of those illegal border-crossers to whom it could apply. Why would they do that? Quite simply because, where border security is concerned, more than one past president has chosen to declare "mission accomplished" prematurely and assert that American borders were under control, rather than admit to the harsh reality of a porous southern border through which illegal aliens, drugs, contraband, weapons, and illicit money constantly flow in one direction or the other.

Of course, the INS is now defunct and responsibility for immigration law was transferred to the secretary of the Department of Homeland Security (DHS) by the Homeland Security Act of 2002. In that regard, the Post article asserts that "no final decisions have been made by Homeland Security Secretary John F. Kelly" on whether to finally expand expedited removal by regulation.

There is no excuse for not expanding its reach to the fullest potential permitted by law, certainly not when:

  • There are somewhere around 11 or 12 million aliens residing and working illegally in the United States;
  • There are finite resource limits to the number of officers and agents, all of whom could be used more effectively and efficiently with full implementation of expedite removal; and
  • The immigration courts are so backlogged that the nationwide docket is the highest it's ever been: in excess of 610,000 pending cases as of May 2017, according to Syracuse University's Transactional Records Access Clearinghouse (TRAC).

A decision by Secretary Kelly to expand expedited removal proceedings is clearly the right thing to do; in fact, it's long overdue.