WASHINGTON (CN) — A federal judge in Washington shut down arguments from the government Friday that a new Homeland Security rule that fast-tracks deporting undocumented immigrants has not yet been implemented because immigration officers are still in training.
U.S. District Judge Ketanji Brown Jackson said the argument for why she should not grant a request from the American Civil Liberties Union to temporarily freeze the rule conflicted with claims from the Trump administration that the policy change was in response to a “surge” in immigration.
“You pulled the trigger in so much as you announced Sep. 1 as the start date,” Jackson said.
The American Liberties Union filed a lawsuit last month challenging the new policy that it argues strips away the basic right to fair deportation proceedings. Warning in court Friday that the policy will lead to erroneous deportations of citizens, green-card holders and asylum seekers, the ACLU and several other civil rights groups urged Jackson to issue a preliminary injunction temporarily blocking its implementation.
“There’s apparently a raging debate in this country coming up,” Jackson said, referring to the controversy surrounding the jurisdiction of federal judges to block the Trump administration’s immigration policies.
“I would not be doing something nationwide. I would be doing something very local saying to DHS across the street ‘Don’t apply the rule,” the judge added.
Under the previous policy, any immigrant within 100 miles of the U.S. border and in the country for under two weeks was eligible for expedited removal without a hearing. The new policy allows for immigration officers to deport arrestees picked up more than 100 miles from the border if they cannot prove they have lived in the U.S. for more than two years.
“They move people in and out of the system so quickly it makes bringing a challenge almost impossible,” ACLU attorney Anand Balakrishnan said.
Enacted July 23 without a public comment period, the policy was originally shelved for years after President Donald Trump first announced it by executive order in 2017.
Repeatedly referring to a Magic 8 Ball or Ouija board, Jackson said Friday that DHS Secretary Kevin McAleenan issued the rule last month based on his “sole discretion.”
Justice Department attorney Erez Reuveni took issue with the comparisons but failed to convince the judge that “Congress wanted to convey on the secretary the authority to respond to real world changes.”
“That’s not exactly what happened,” Jackson said, reminding the attorney that Trump issued the executive order over two years ago.
Still, Reuveni held firm that such any action by the court would be premature given not a single deportee has been placed into expedited removal under the rule, saying the immigration officers are first scheduled to undergo training.
The judge later pushed the government to answer how long the process of deportation takes at minimum once a noncitizen is placed in expedited removal.
At first dodging the question, Reuveni said, “I don’t want to be glib but it’s called expedited removal. It happens quick.” He later admitted that deportation can be executed in just hours.
Reuveni also took serious issue with the ACLU bringing seven anonymous plaintiffs forward in the lawsuit, arguing the government has no way to verify if the individuals could be placed in expedited removal — thus holding “skin in the game.”
“We’re applying standing in a vacuum based on seven people we know nothing about,” Reuveni said.
Throughout the nearly four-hour hearing, the government lawyer dug into settled cases from the D.C. Circuit and U.S. Supreme Court to back his claim that the judge had no precedent to interfere in agency actions.
“The law is such that you can find a quote that applies to anything,” Jackson said.
Drawing objections from the government, Jackson originally suggested she would require the government to provide notice in the coming weeks if it began placing individuals in expedited removal proceedings.
“I’m just trying to preserve the status quo while I write an opinion,” Jackson said. The judge later conceded that the two parties would have time to confer on a proposal that would allow her time to consider whether to grant the preliminary injunction.
Jackson said she will consider the arguments for several weeks before issuing a written opinion.
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