Trump is following Bill Clinton's lead on removing undocumented aliens

Trump is following Bill Clinton's lead on removing undocumented aliens
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President Donald TrumpDonald John TrumpSenate gears up for battle over witnesses in impeachment trial Vulnerable Democrats tout legislative wins, not impeachment Trump appears to set personal record for tweets in a day MORE has expanded the use of expedited removal proceedings for undocumented immigrants.

His administration will deport aliens without a hearing before an immigration judge if they entered the United States unlawfully and cannot prove that they have been here for more than two years and don't have a credible fear of persecution or torture.

Ironically, Trump’s authority to do this comes from a bill that former President Bill ClintonWilliam (Bill) Jefferson ClintonJudiciary members battle over whether GOP treated fairly in impeachment hearings Lawmakers clash on Trump, Clinton impeachment comparisons Live coverage: House panel debates articles of impeachment MORE signed into law, the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA), section 302 of which added expedited removal proceedings to the Immigration and Nationality Act (INA).

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Clinton supported IIRIRA because it had tough enforcement provisions and he was opposed to illegal immigration.

When his chief of staff, Leon Panetta, gave a briefing on IIRIRA, he said, “We got I think all of the proposals that we were out to get for illegal immigration have been included and we fully support those.”

Clinton's statement at the signing ceremony included the following observation:

"This bill, ... includes landmark immigration reform legislation that builds on our progress of the last 3 years. It strengthens the rule of law by cracking down on illegal immigration at the border, in the workplace, and in the criminal justice system — without punishing those living in the United States legally."

Expedited removal proceedings

The primary objective of these proceedings is to use immigration officers to screen out and rapidly remove asylum-seeking migrants with meritless persecution claims.

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According to TRAC Immigration, in fiscal 2019, as of the end of June, the immigration court has rendered 45,322 decisions on asylum applications, and asylum was denied in 31,260 (69 percent) of the cases.

Previous administrations limited expedited removal proceedings to 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.

Greater need for such proceedings

The immigration court backlog increased dramatically during the Obama administration, rising from 327,729 cases in fiscal 2012 to 518,545 cases in fiscal 2016.

As of the end of June this year, the backlog had risen to 945,711 cases, and the average wait for a hearing was two-and-a-half years.

In an attempt to reduce this backlog, Trump is expanding the use of expedited removal proceedings to the full extent authorized by section 302(b) of the INA, i.e., to an alien —

"who has not been admitted or paroled into the United States, and who has not affirmatively shown, to the satisfaction of an immigration officer, that the alien has been physically present in the United States continuously for the 2-year period immediately prior to the date of the determination of inadmissibility...."

Aliens in expedited removal proceedings who establish a credible fear of persecution or torture, are entitled to an asylum hearing before an immigration judge, which can include consideration of withholding of deportation under Section 241(b)(3) of the INA and torture claims under the Convention Against Torture (CAT).

Otherwise, they are deported.

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 was not a problem when the proceedings were limited to aliens apprehended within 14 days of entry, but it is certain to be a problem under the expansion which will apply to aliens who have been here for up to two years.

Other, more limited forms of relief

Withholding of deportation and CAT relief just prohibit deporting the alien to the country where he would face persecution or torture, but there is no time limit on these applications.

The burden of proof for asylum and for withholding of deportation are the same, except that an asylum applicant only has to establish a well-founded fear of persecution, and withholding requires the applicant to establish that persecution is more likely than not.

A CAT torture claim also requires the applicant to establish that the harm he fears is more likely than not.

Should America be rushing aliens through expedited removal proceedings? 

Maybe not, but Clinton authorized it when he signed IIRIRA into law in 1996, to crack down on illegal immigration, and the expedited removal provisions are still in the INA.

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The ACLU believes that a court may find that a removal process which creates a high risk of sending individuals back to countries where they will face persecution offends the Constitution.

But asylum grants just require a well-founded fear of persecution. Aliens who establish that persecution would be more likely than not would receive mandatory relief under the withholding provisions, unless they are statutorily ineligible for some reason.

The Supreme Court, according to Justia.com, moreover, has found only three INA provisions to be unconstitutional since the INA was enacted in 1952 through 2016.

It would be more productive to work with Trump on finding ways for persecution claims to be considered outside of the United States, such as with assistance from UNHCR or an expansion of Obama's CAM program.

Nolan Rappaport was detailed to the House Judiciary Committee as an executive branch immigration law expert for three years. He subsequently served as an 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.  Follow him on Twitter @NolanR1