Due Process and Expedited Removal in the Interior: Part I

February 22nd, 2017

President Trump’s January 27 executive order, which denied entry to nationals of certain country, has attracted (by far) the most attention of his various actions. But his new policies to expedite the removal of aliens who have already entered the United States will have a far, far greater impact.

The Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA) created a new process known as “expedited removal,” which permits the government to remove certain aliens “without further hearing or review unless the alien indicates either an intention to apply for asylum under section 1158 of this title or a fear of persecution.” This procedure applies to aliens who arrive at the border (including an airport) and are deemed inadmissible–for example, an agent determines that their paperwork is fraudulent, or even if it is not fraudulent, the agent believes that false answers were provided to oral questions. The application of “expedited removal” at the border has raised serious due process concerns, though, for reasons I’v written about over the past few weeks, traditionally courts do not scrutinize the rights of aliens (other than green-card holders) who have not yet entered the United States.

However, the “expedited removal” procedure does not apply only at the borders. 8 U.S.C. 1225(b)(1)(A) (iii)(II) subjects to “expedited removal” an alien who entered the United States without inspection (usually by illegally crossing the border) and who has not “been physically present in the United States continuously for the 2-year period immediately prior to the date of the determination of inadmissibility.” As written, this provision is extremely broad, and has no geographical locus for this class of aliens.

Through a series of rulemakings, the Bush 43 administration interpreted that provision. In 2002, the Immigration and Naturalization Service announced that it would place in “expedited removal proceedings certain aliens who arrive in the United States by sea, either by boat or other means, who are not admitted or paroled, and who have not been physically present in the United States continuously for the two-year period prior to the determination of inadmissibility under this Notice.” (This notice contained an exception for Cubans, under the so-called “Wet-Foot/Dry-Foot” policy.)  Two years later, the Department of Homeland Security expanded its interpretation of 1225(b), to place in expedited removal aliens deemed “inadmissible” who “who are encountered by an immigration officer within 100 air miles of the U.S. international land border, and who have not established to the satisfaction of an immigration officer that they have been physically present in the U.S. continuously for the fourteen-day (14-day) period immediately prior to the date of encounter.” This policy, which focused primarily on border-crossers–hence the 100-mile radius–was crafted to “deal more effectively with the large volume of persons seeking illegal entry.” (Here too there was an exception for Cubans, citing the relationship between our two governments).

Unlike expedited removals at the border, where due process rights do not attach to aliens, once inside the United States, the due process clause applies. There has been a longstanding debate among immigration law professors about whether this provision violates the 5th Amendment. (Gerald Neuman wrote in the Columbia Law Review that this regime, especially after Boumediene, likely violates the Due Process as well as the Suspension Clause). But as the Court’s recent arguments in Hernandez v. Mesa suggest, constitutional rights are often in a nebulous place at or near the border. Indeed, under 8 U.S.C. s. 1357, federal agents can conduct warrantless searches “within a reasonable distance from any external boundary of the United States.” The government has interpreted this “reasonable distance” to be 100 miles. In Almeda-Sanchez v. United States, for example, the Court upheld a warrantless search 25-miles from the Mexican border. The warrantless search in United States v. Martinez-Fuerte was 66 miles from the Mexican border.

DHS’s new policy, however, goes far past the 100-mile border radius, and pushes the jurisdiction to the statutory limit. Any alien found in the interior is subject to expedited removal if he has “been physically present in the United States continuously for the 2-year period immediately prior to the date of the determination of inadmissibility.” This new policy will be published in the Federal Register.

No doubt, there will be challenges to this regime. My first thought concerned possible APA challenges–specifically, was the decision to waive the 30-day comment period proper? Here, President Obama provides a defense. Last month, however, Secretary Johnson eliminated the exception for expedited removal for Cuban nationals encountered on U.S. soil. DHS put this regulation into effect immediately, finding that “good cause” exists to suspend the 30-day notice and comment process. “Delaying the implementation of this notice to allow public notice and comment would be impracticable and contrary to the public interest,” the notice stated.

Second, there may be challenges to the Secretary’s authority to designate such a wide swath of aliens subject to expedited removal. Here too, the Cuba notice provides support for DHS.

Congress explicitly authorized the Secretary to designate categories of aliens to whom expedited removal proceedings may be applied, and made clear that “[s]uch designation shall be in the sole and unreviewable discretion of the Secretary and may be modified at any time.” Section 235(b)(1)(A)(iii)(I) of the Act, 8 U.S.C. 1225(b)(1)(A)(iii)(I).

The strongest challenge concerns the Due Process Clause. Jill Family writes that these aliens are subject to the full panoply of the Due Process Clause, and cannot be removed in this cursory fashion without any hearing. Peter Margulies adds that unlike aliens found near the border, those within the interior–for as long as two years–will have developer stronger ties to the United States. Under Matthews v. Eldridge, such aliens must be afforded more process prior to removal. Peter also notes that there are potential suspension clause concerns.

I will revisit this topic after I’ve reviewed the notice in the Federal Register.

Update: As Ben Winograd pointed out on Twitter, the actual DHS memo did not indicate how far the policy would go–rather I was responding to reports that the agency would push their authority to the statutory maximum. This was why I ended the post on a tentative note. In any event, I will wait till the Federal Register notice is published to write Part II in yet another series on ongoing developments in immigration law.