Immigration and Customs Enforcement officials have started to implement a policy that allows officers to arrest and rapidly deport undocumented immigrants who have been in the US for less than two years, according to internal emails and documents obtained by BuzzFeed News.
The Trump administration’s effort — to expand quick deportations to undocumented immigrants across the US who cannot prove they have been in the country continuously for two years before they are picked up — was blocked by a federal court judge soon after the policy was first announced in 2019. But in June, the US Court of Appeals for the District of Columbia Circuit lifted the preliminary injunction, opening the door for ICE officers to use expedited removal across the country, a policy that will allow the agency to arrest and deport undocumented immigrants without a hearing in front of an immigration judge.
The previous policy only allowed officials to use expedited removal within 100 miles of the border and for those who have been in the country for up to two weeks.
Currently, officers typically arrest immigrants and place them into deportation proceedings. These include a hearing before an immigration judge — a process that can take years. In practical terms, the expanded policy gives ICE officers more power to determine who can be quickly deported, although it’s unclear exactly how fast the process will be.
The shift could allow the Trump administration to increase deportations while circumventing a court system that is severely backed up and short on resources, but advocates for immigrants have said it would destroy their due process rights.
The latest push to implement the quick deportations comes after years of President Donald Trump’s efforts to restrict immigration to the US and expand enforcement. It also comes during the tail end of a divisive presidential election season.
In an email to ICE employees on Friday, Tony Pham, the acting head of the agency, said that officers and agents need to finish a training course on the policy by Oct. 16, after which they can begin using the new powers to quickly deport immigrants. The email was first reported by Bloomberg Government.
A separate email obtained by BuzzFeed News indicates that ICE attorneys will initially review all cases in which deportation officers aim to use the new policy before immigrants are quickly removed from the country. An internal email sent on behalf of head ICE attorney Michael Davis said that his staff must confirm that the undocumented immigrant was eligible for the policy and that the implementation guidance was followed.
The ICE guidance on the new policy, according to the email, allows for some areas of discretion for officers. Those include: ICE officers being told that they should not revisit cases of immigrants who are already in deportation proceedings, and officers must not apply the quick deportations to people who can prove they were in the US before the policy was first issued last July.
Officers can decide not to use expedited removal in cases in which an immigrant has “mental competency” issues, is the sole caregiver of a US citizen or lawful permanent child, has some chance at obtaining legal status through deportation proceedings, or if they are a crime victim or witness to a crime, among other exceptions.
“In conducting their review of these cases, OPLA attorneys should be mindful of how a court would view the available evidence of physical presence in the United States," the email to ICE attorneys states.
In a separate memo also obtained by BuzzFeed News, Pham laid out the realities of how the policy will be used.
“As a practical matter, I anticipate that the July 23, 2019 designation will be primarily used by ICE in the Criminal Alien Program and Work Enforcement contexts, when Deportation Officers encounter aliens who have been arrested by another law enforcement agency for criminal activity or when Special Agents encounter unlawful workers at worksites targeted for enforcement action based on investigative leads,” he wrote.
Undocumented immigrants who claim to be fearful of persecution in their home country will be referred to an asylum officer for an initial interview, the guidance states. Undocumented immigrants can use bankbooks, leases, school records, employment records, or other materials to prove their presence in the country, according to the memo. If they don’t have the documents immediately, they will be given a “brief but reasonable opportunity” to get them.
The presidential election in November will decide whether the policy will continue to be implemented. It’s unlikely that former vice president Joe Biden would allow ICE officers to continue enforcing the expanded use of expedited removal.
Experts, such as Sarah Pierce, an analyst at Migration Policy Institute, have noted that the expedited removal proposal would likely do more to instill fear in the immigrant community than profoundly alter the deportation process within the US.
“The vast majority of unauthorized immigrants have lived in the United States for more than two years — over 60% have lived here for 10 years or more — making them ineligible for expedited removal,” she said when the policy was first issued. “But no doubt, removal without due process is a terrifying prospect.”
Immigrants, however, could find it difficult to prove that they have been in the country for at least two years while they are in detention.
In the last week, ICE officials have revealed billboards of immigrants released from local custody in Pennsylvania, an attempt to strike back at cities with so-called sanctuary policies. Some within the agency, however, see the billboards as an attempt to help Trump’s reelection efforts. Agency officials also held a press conference to highlight an operation targeting areas of California with similar policies.