Fast-Track Deportations Reinstated by DC Circuit

A child looks at the camera as Haitians who were deported from the United States line up as they arrive at a hotel where they will be quarantined as a measure against the spread of the new coronavirus, in Tabarre, Haiti, on April 23, 2020. (AP Photo/Dieu Nalio Chery)

WASHINGTON (CN) — The D.C. Circuit threw out an injunction against the government’s fast-track deportation policy Tuesday, but the ACLU says the merits fight on the Trump administration’s creation of a “papers, please,” regime is just beginning.

“I think it’s quite clear that it is in fact unconstitutional to subject individuals who have been in the United States to summary procedures which have been demonstrated to both be unreliable, deeply unfair and subject to abuse,” ACLU attorney Anand Balakrishnan said in a phone interview.

Balakrishnan represents three immigration groups that filed suit last year after the acting secretary of Homeland Security significantly expanded the reach of the agency’s expedited removal process.

While the previous policy covered immigrants who were in the country for less than two weeks and apprehended 100 miles from the U.S. border, the new one expanded the time window to two years of undocumented presence in the United States.

The ACLU won an injunction after U.S. District Judge Ketanji Brown Jackson called it likely that the government made the changes in violation of notice-and-comment rules laid out in the Administrative Procedure Act.

Reversing that decision on Tuesday, however, the D.C. Circuit ruled 2-1 that the power to review the secretary’s decision is not subject to APA review.

“There could hardly be a more definitive expression of congressional intent to leave the decision about the scope of expedited removal, within statutory bounds, to the secretary’s independent judgment,” U.S. Circuit Judge Patricia Millett wrote for the panel. “The ‘forceful phrase “sole and unreviewable discretion,”’ by its exceptional terms, heralds Congress’s judgment to commit the decision exclusively to agency discretion.”

Because the court left the door open for ACLU’s constitutional claims to proceed on remand, Trump-appointed U.S. Circuit Judge Neomi Rao dissented sharply, saying she would have dismissed the suit outright.

“We witness yet another marker on the road to government by injunction,” Rao wrote. 

The Obama-appointed Millet was joined in the majority by Senior U.S. Circuit Judge Harry T. Edwards, a Carter appointee.

Focused on Homeland Security’s power to modify deportation rules at any time, Millet questioned the need for having the secretary solicit comments he might inevitably ignore.

“Under those circumstances,” she wrote, “the notice-and-comment procedure would be an empty, yet time-consuming, exercise — all form and no substance.”

The Department of Homeland Security did not respond to a request for comment on the decision. 

Meanwhile at Make the Road New York — one of the three advocacy groups in the case — co-executive director Javier Valdés slammed Tuesday’s reversal.

“Expanding the expedited removal policy strips immigrants of the fundamental right of due process and destroys families, including those who have lived in the United States for years and are caught up in a dragnet enforcement tool that is prone to error and abuse,” Valdés said in a statement. 

The ACLU’s Balakrishnan echoed that sentiment, saying the new deportation standard will hurt immigrant communities across the country. 

“The Covid emergency has put strains on the government’s ability to fairly administer immigration laws in general, and I think the combination of the two would only create additional problems,” Balakrishnan said. 

Balakrishnan remains optimistic, however, about the group’s still-live constitutional challenge.

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