WASHINGTON (CN) — Latching onto the unlawful appointment of key government posts, the ACLU took a second swing on Friday at a rule that fast-tracks the removal of undocumented immigrants.
In a 2-1 ruling, the appeals court found the Department of Homeland Security had “sole and unreviewable discretion” to expand the use of swift deportation procedures that previously only applied to people detained within 100 miles of the border. Under the new scheme, the government can forgo deportation hearings for immigrants arrested anywhere in the country.
Two months after that appellate reversal, however, an independent government watchdog agency reported that the appointment of the official who ratified that policy was unlawful.
Chad Wolf is the fifth person to head Homeland Security in an acting capacity in four years, with Kirstjen Nielsen, who resigned in April 2019, the last Senate-confirmed secretary.
The GAO had not considered the consequences of Kevin McAleenan’s acting-capacity leadership over the immigration agency prior to Wolf’s appointment — a period during which time he had quarterbacked the rollout of the expedited removal policy.
In Washington last year, the policy prompted a lawsuit from the immigration-advocacy group Make the Road New York, which is represented by the ACLU.
Though they argued in an amended complaint last month that McAleenan and Wolf’s unlawful appointments make the rule invalid, Justice Department attorney Erez Reuveni told the court Friday that the challenge against the acting officials should have been when the group first filed suit.
During a hearing Friday that ran more than three hours, however, Reuveni found little success with his claim that jurisdiction is foreclosed after the appeals court’s decision.
That defense “sweeps way too broadly,” said U.S. District Judge Ketanji Brown Jackson.
ACLU attorney Anand Balakrishnan said there was no reason to suspect when bringing the first complaint that the agency had violated its own rules of succession.
“We acted with reasonable diligence in raising the claim when we did,” he said.
The ACLU sought permission to file an amended complaint on Sept. 20 request, just over a month after the release of the GAO report, and Judge Jackson agreed in October.
The new complaint claims McAleenan unlawfully took on the “sole discretion” of the secretary when he expanded the fast-acting deportation proceedings to a new class of immigrants.
“It would be an unbelievable narrowing of the [Federal Vacancies Reform Act of 1998],” ACLU attorney Spencer Amdur argued.
Amdur also claimed it would leave the law “almost completely toothless” if McAleenan’s actions were allowed to stand. The attorney said the law “confines the judgment to the secretary’s hands,” granting authority “to one decisionmaker, and one decisionmaker alone.”
For the Justice Department, however, the immigration groups are decades too late to challenge procedures first authorized by Congress in 1997.
The policy allows the government to remove immigrants who fail to prove within 72 hours of their arrests that they have resided in the United States for more than two years. Reuveni, with the Justice Department, called that time frame “meaningful,” and “fair but quick.”
Balakrishnan with the ACLU argued that each time expedited removal is applied to a new group of immigrants, the government has to undergo the federal rulemaking process, including a public notice and comment period. Instead, the Trump administration has tried to apply the stricter standard “wholesale,” the lawyer said.
Reuveni meanwhile insisted that the window has closed for such a challenge, as the ACLU gets just “one bite at the apple.
“The court of appeals has already handled that,” Reuveni said. The D.C. Circuit in its split ruling found no such notice-and-comment requirement under the Administrative Procedure Act applies to the new expedited removal rule.
Jackson, an Obama appointee who was favorable to the ACLU’s arguments last year, asserted today that the initial challenge “was very clear,” but the new claims and request for injunctive relief are less straightforward.