Knowing that an alien in the United States who is charged with being deportable has a statutory right to a hearing before an immigration judge and that there is a backlog crisis in our immigration courts, I predicted that President Donald Trump would not be able to deport millions of undocumented immigrants.
Since then, the backlog has gotten even higher. As of the end of January 2017, it was 542,411 cases and the average wait time for a hearing was almost 700 days.
Even if the immigration judges did not receive any additional cases, it would take them more than two-and-a-half years to catch up.
But President TrumpDonald TrumpHillicon Valley — State Dept. employees targets of spyware Ohio Republican Party meeting ends abruptly over anti-DeWine protesters Jan. 6 panel faces new test as first witness pleads the Fifth MORE has finessed his way around this problem by implementing a little-known expedited removal provision in his executive order (EO), “Border Security and Immigration Enforcement Improvements.” The provision is section 235(b)(1)(A)(iii)(II) of the Immigration and Nationality Act (INA).
The Illegal Immigration Reform and Immigrant Responsibility Act of 1996 established expedited removal proceedings to deal with fraud and willful misrepresentations at ports of entry and to stop aliens with bogus asylum claims from being admitted for asylum hearings before an immigration judge. Many of them absconded instead of appearing at their hearings.
Under expedited removal proceedings, which are conducted by immigration officers, an alien who lacks proper documentation or has committed fraud or willful misrepresentation of facts to gain admission into the United States is inadmissible and may be removed without a hearing before an immigration judge. Aliens subject to expedited removal must be detained until they are removed and normally may only be released due to a medical emergency.
Previous presidents only used expedited removal proceedings for aliens:
Arriving at ports of entry;
Arriving by sea and not admitted or paroled into the United States; and
Aliens who are present in the United States without being admitted or paroled, are encountered within 100 air miles of an international border, and have not established that they have been physically present in the United States continuously for the 14-day period immediately preceding their encounter with an immigration officer.
President Trump’s EO expands expedited removal proceedings to include aliens who have been in the United States for up to two years, which is authorized by the INA.
The only way to avoid removal from the United States in expedited removal proceedings is to establish a credible fear of persecution or torture, which entitles aliens who have not been in the United States for more than a year to an asylum hearing before an immigration judge.
Section 208(a)(2)(B) of the INA imposes a one year time limit on asylum applications unless the alien can establish the existence of changed circumstances which materially affect his eligibility for asylum or that the delay was caused by extraordinary circumstances.
This creates a Catch-22 situation for aliens in expedited removal proceedings who can establish continuous physical presence for two years. They can get out of expedited removal proceedings for a hearing before an immigration judge, but they would be barred from applying for asylum by the one year time limit.
If the immigration officer who evaluates the alien’s claim rejects it, the alien is given an opportunity to be heard and questioned by an immigration judge, either in person or by telephonic or video connection. This brief review is concluded within 24 hours if possible, but in no case later than seven days after the claim was rejected by the immigration officer.
While it appears likely that President Trump will be able to make good on his immigration enforcement promises, it would be enormously expensive financially and politically.
He would be wise to consider a legalization program to reduce the size of the undocumented population. He could limit it to undocumented immigrants who would benefit the United States or unify families with members who are citizens of the United States, and it could require extreme vetting.
In fact, he has indicated that he might be open to helping the children in the Deferred Action for Childhood Arrivals (DACA) program.
He has made the following comments about DACA:
"To me, it's one of the most difficult subjects I have because you have these incredible kids, in many cases, not in all cases. And some of the cases, having DACA and they're gang members and they're drug dealers, too. But you have some absolutely, incredible kids, I would say mostly.”
The president added, still discussing DACA although it could be said about his entire approach to immigration policy: “It's a very, very tough subject."
Nolan Rappaport was detailed to the House Judiciary Committee as an Executive Branch Immigration Law Expert for three years; he subsequently served as the immigration counsel for the Subcommittee on Immigration, Border Security, and Claims for four years. Prior to working on the Judiciary Committee, he wrote decisions for the Board of Immigration Appeals for 20 years. He also has been a policy advisor for the DHS Office of Information Sharing and Collaboration under a contract with TKC Communications, and he has been in private practice as an immigration lawyer at Steptoe & Johnson.
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