WASHINGTON (CN) – A Homeland Security rule that fast-tracks removal of undocumented immigrants is facing a new legal challenge from civil rights groups who say the Trump administration’s plan to ratchet up deportations is reckless and will create a “show me your papers” regime.
The new rule went into effect last month and marked a significant change in policy enforced by U.S. Immigration and Customs Enforcement, an agency under the Department of Homeland Security.
While the previous policy stipulated any immigrant located within 100 miles from the U.S. border and in the country for less than two weeks was eligible for expedited removal without a hearing, the new one says an immigrant more than 100 miles from the border can still face deportation if they cannot prove they have lived in the U.S. for more than two years.
The rule was put into effect without public comment and was first drawn up in an executive order issued by President Donald Trump in January 2017.
It sat on the administration’s back-burner until July 23 when it was finally enacted.
The plaintiffs in a lawsuit filed Tuesday – which include nonprofit immigrant advocate groups Make the Road New York, La Union del Pueblo Entero and We Count!, represented by American Civil Liberties Union attorneys – argue the rule is unprecedented and unlawful.
“No prior administration has authorized such broad use of expedited removal against non-citizens who have resided in the country for significant periods or who have been apprehended in the interior of the country, far from the border,” according to the 39-page complaint filed in Washington, D.C., federal court.
The ACLU and the groups it represents argue the policy brings with it a host of new legal problems and potential civil rights violations.
For young people and transgender individuals, who often lack full records, the rule is disproportionately punitive, said Javier Valdes, Make the Road’s co-executive director.
“This reckless effort to deprive people of their fundamental rights will place countless immigrants at risk, including many people who have been in the United States for years,” Valdes said in a statement Tuesday. “We will continue to fight against this administration’s unlawful tactics.”
In order to claim citizenship, a person must prove they’ve been admitted entry as a permanent resident, hold refugee status or have previously received asylum in the U.S., a scenario which prohibits their removal under current federal law. Those who cannot establish a lawful presence are scheduled for removal with just a bit of “cursory paperwork” compiled by an agent and a supervisor, the complaint states.
Whether a person knows how the deportation process works is also critical because any noncitizen who receives an expedited removal order is barred for a period of five years from entering the U.S., unless an exception is made.
The expansion of the rule will likely lead to more erroneous removals, the civil rights groups claim.
“For individuals who have been residing in the country for an extended period or who are apprehended far from the border, the risk of error in the expedited removal process is particularly high. For example, DHS puts the burden on the individual to show ‘to the satisfaction of an immigration officer’ that the length of the individual’s presence makes the individual ineligible for expedited removal,” the complaint states.
This means the government has imposed a “default presumption” that arrestees are noncitizens that have not been in the U.S. for two years, according to the lawsuit.
Of the 11 million undocumented immigrants residing in America, fewer than 4% arrived less than two years ago, the ACLU notes.
“That means that nearly 96% of the undocumented immigrants that DHS might apprehend cannot properly be removed pursuant to expedited removal,” the lawsuit states.
The prior rules were complicated enough, the plaintiffs argue. In 2014, a Mexican citizen living in the U.S. continuously for 14 years was removed on an expedited order after a traffic stop in Texas, despite DHS guidelines that said expedited removal could not apply to those in the country more than two weeks.
Other mistakes were more tragic. An illiterate Guatemalan mother of four U.S. citizen children was deported on the expedited removal process despite her credible fear claims. Her father was murdered, her mother extorted by a gang and she did not want to return.
“Although the woman told the immigration officers that she was illiterate, they forced her to read their account of her interview which incorrectly stated that she did not fear return. She refused to sign the expedited removal order but was nonetheless deported to Guatemala where she was later raped and shot by a gang,” the lawsuit states.
The defendants include acting DHS Secretary Kevin McAleenan, acting ICE Director Matthew Albence and Attorney General William Barr. Other defendants include Kenneth Cuccinelli, acting director of Citizenship and Immigration Services, and Mark Morgan, acting commissioner of Customs and Border Protection.
They could not be reached for comment Tuesday afternoon.
The plaintiffs seeks declaratory judgment ordering the rule be stricken from the Federal Register and that those scheduled for expedited removal be placed in regular immigration court proceedings.
Trina Realmuto, an American Immigration Council attorney who also represents the plaintiffs, said the new rule exacerbates existing problems with expedited removals.
“The expansion of fast-track deportations will strip hundreds of thousands of noncitizens of a fair hearing on whether they are to be deported from their families, friends, and communities in the United States and will create a ‘show me your papers’ regime nationwide,” Realmuto said in a statement.