Deportation Without a Hearing: A Primer

In most cases, when an immigrant is charged with being removable from the United States, the Department of Homeland Security issues a Notice to Appear which includes a specific date to appear in immigration court for and initial hearing, the reason for the notice, the details on the violation, and the consequences of failing to appear (which can include an order of deportation). A Notice to Appear can be issued to an immigrant who crossed the border illegally and never had status within the United States, or to a legal immigrant who has violated the conditions of their status by overstaying their visa, working without authorization, or the like. Both documented and undocumented immigrants can hire an attorney, but the cost is not supported by the government. During the hearing, the immigrant is allowed to plead their case in front of the judge, making a case for why they are not removable, or asking for some form of relief from removal. Relief could be a claim for asylum or other extenuating circumstances that the judge could take into consideration to grant a temporary stay of removal or a permanent withholding of removal. After the hearing, if the immigration judge determines that the immigrant is to be removed, there are several avenues for appeal, but the criteria are hard to meet, particularly when an asylum claim is the basis of the appeal, in which case the immigrant has to prove persecution on the basis of race, religion, nationality, political opinion, or belonging to a particular social group.

Due to the massive immigration court backlog, which hit a record high in April 2017, immigrants are currently waiting an average of 670 days for a hearing to present their case and 586,000 cases are still pending. The Justice Department has announced the hiring of 50 new immigration judges to help with the backlog, but the administration’s directive to increase focus on immigration arrests and detentions and expansion of priorities for removal are an additional strain on the already overwhelmed system.

Following President Trump’s executive order “Border Security and Immigration Enforcement Improvements,” DHS issued a guidance memo for enforcement specifically citing this backlog as a reason to increase the use of expedited removal processes (an umbrella term which also includes administrative removals and reinstatement of removal) instead of going through the courts.

Expedited removal was codified in IIRIRA in 1996 as an amendment to the INA and a response to the immigration court backlog that existed then. Expedited removal can apply to any arriving individual at a port of entry without proper documentation, or arrivals by sea but not necessarily at a point of entry. In past administrations, expedited removals also applied to individuals apprehended within 100 miles of the land border who cannot prove they were legally admitted to the country or have been present in the country continuously for more than 14 days. With the issuance of DHS’s new guidance on enforcement, the definition of individuals eligible for expedited removal is to be expanded to those who cannot prove they have been in the United States continuously for two years, without regard to where in the United States they are apprehended. This expansion is permitted under the INA, but was not exercised by previous administrations.

The expedited process is not reviewable by an immigration judge and has only extremely limited options for relief. For example, before being removed, the government must determine if the immigrant has a “credible fear” of persecution, which could be the basis for an asylum claim. This authority has been very tightly exercised, and the Trump administration has said they want to be stricter with the criteria. Even though it is not issued by an immigration judge, an expedited removal is a formal deportation and results in a ban from returning to the U.S. for five years. If an immigrant is found to have misrepresented themselves when apprehended at the border by providing false or out of date documentation or making false claims to U.S. immigration agents, the ban is for life. Expedited removal proceedings can also be used for individuals who entered the country legally but overstayed their visa or who have been convicted of crimes like drug and firearm charges and aggravated felonies.

Administrative removal is expedited removal for foreign nationals who have been convicted of aggravated felonies and who were not previously permanent residents in the United States. Permanent residents have the right to appear before an immigration judge. In administrative removal, it does not matter how long one has been in the country, if DHS establishes that an immigrant meets the criteria, the immigrant is eligible for deportation.

As in expedited removal, the immigrant does not go before an immigration judge. However, in contrast to expedited removal processes, the charge can be appealed and the individual can consult with an attorney at personal expense. The immigrant can review the evidence DHS used to make its decision, and can submit evidence rebutting either of DHS’s two bases for their decision, whether the immigrant is a permanent resident or has been convicted of an aggravated felony.

The definition of aggravated felony under immigration law is separate from definitions used in criminal law and is broader, including some nonviolent misdemeanors. The category includes types of crimes that would typically be considered “aggravated,” such as murder, sexual assault, and firearms offenses, but it also includes crimes such as gambling offenses, failure to appear in court, burglary, and document fraud. According to the American Immigration Council, “Once a crime is labeled an , aggravated felony,’ deportation is all but assured and individualized determinations are rarely possible to make.”

The turnaround of administrative removals is rapid, and options to appeal, while more expansive than with expedited removals, are still limited. According to a 2013 Justice Department guidance memo for immigrants, “the administrative removal procedure is complicated, [t]his procedure takes place very quickly so you must act fast if you want to find legal assistance or to fight the charges on your own.” Given the new administration’s expanded definitions of those targeted for immigration enforcement, the constantly increasing backlog of the immigration courts, and President Trump’s promises to deport mass numbers of undocumented immigrants, the use of these expedited removal processes will likely increase for the foreseeable future, complicated or not.

The third and final method of expedited removal is called reinstatement of removal, and applies to those who have been previously deported but illegally reentered the United States. As with the other two methods, the immigrant does not come before an immigration judge, but can appeal the reinstatement on the basis of a claim for asylum. According to the DOJ, “depending on the jurisdiction your immigration case is in, you may be able to challenge your prior removal order in the federal Circuit Court of Appeal.” In addition, exceptions can apply to those protected under the Nicaraguan Adjustment and Central American Relief Act or the Haitian Refugee Immigration Fairness Act. However, under a new administration, these existing forms of relief are subject to change. For example, just recently, U.S. Citizenship and Immigration Services internally requested evidence of crimes committed by Haitians, ostensibly to rescind some of the privileges afforded to the community under HRIFA and other protections, such as their designation under Temporary Protected Status.

In fiscal year 2013, the most recent year for which government data is available, the expedited removal process accounted for 44 percent of all removals, approximately 193,000 people, and reinstatement of removals accounted for 39 percent. Prior to President Trump taking office, the Obama administration had increasingly prioritized deportations of recent border crossers, whose cases rarely go through immigration court. As a result, the use of expedited removal processes rose each year between 2009 and 2013. Even with this previous sharp increase, the new administration is expected to ramp up these processes exponentially. The Supreme Court has declined to hearone case so far brought against expedited removal processes by a group of undocumented women and children from Central America, but immigrants’ rights groups continue to decry what they see as a deprivation of due process. Meanwhile, President Trump will face challenges in balancing his desire to decrease immigration court backlog while substantially expanding the pool of those eligible for deportation. A dramatic increase of the use of expedited removal may be the means to this end.