WASHINGTON — On Friday, a month and a half after the Trump administration announced a new policy significantly expanding its ability to speed up deportations for certain immigrants, a Justice Department lawyer told a judge that the government hadn’t actually started enforcing it — and he couldn’t say when it would.
Under the new policy, which the US Department of Homeland Security formally adopted July 23, immigration officers could flag unauthorized immigrants anywhere in the country for immediate deportation — known as “expedited removal” — if they couldn’t prove they’d been in the US for more than two years.
Generally, immigrants facing expedited removal don’t have any way to challenge the deportation decision; there are limited exceptions for people claiming to be US citizens or seeking asylum, for instance. Deportations can happen within days. Unlike in immigration courts, immigrants facing expedited removal don’t have the right to a lawyer or to a hearing before a judge.
Previously, the expedited removal process was limited to immigrants caught within 100 miles of a border who had been in the United States for less than two weeks; other immigrants facing deportation would go before an immigration court, a process that could take months or even years.
US District Judge Ketanji Brown Jackson in Washington, DC, is weighing whether to grant a request by the American Civil Liberties Union and immigrant advocacy groups that sued for an immediate injunction blocking the new policy while the case goes forward. The government is arguing that until immigration officers start enforcing the policy on the ground, any legal challenge is premature. At a hearing Friday, Jackson expressed surprise at DOJ’s position, saying it would allow the government to adopt a policy to “scare” people, but avoid legal review by never actually acting on it.
Jackson said she expected to rule in several weeks. In the meantime, she ordered the two sides to try to come up with a proposal by Sept. 10 to preserve the “status quo” while she writes her opinion — she had pitched, for instance, having the government notify her and the challengers as soon as someone was placed into expedited removal under the new policy. The judge expressed concern about the government suddenly starting to deport people without the court or challengers knowing.
Last month, the Justice Department said in a court filing that it expected to begin carrying out the expanded expedited removal policy Sept. 1, putting immigrants and their advocates on alert. On Friday, however, DOJ lawyer Erez Reuveni said nothing had happened yet. Immigration and Customs Enforcement was requiring immigration officers to go through training first, he said, but he didn’t have any details about what that training entailed or how long it would take.
One of the core points of contention Friday was over whether the Trump administration had “implemented” the expanded expedited removal policy. Until a person was subjected to deportation under the new policy, Reuveni argued, it hadn’t been “implemented,” and the court lacked jurisdiction to hear the case.
Jackson expressed confusion about how that argument would play out in reality, asking Reuveni if it effectively meant immigrants could only bring a challenge once they’d already been deported. Reuveni said that to the extent Congress allowed such challenges, it didn’t require the people bringing them to be in the United States.
Jackson grew increasingly incredulous at Reuveni’s responses, saying that based on the government’s argument, people would already have been “ripped” from their lives in the United States before they could go to court. She said that if no one could sue until the government physically took action, that would give the government control over whether people could ever go to court to challenges policies that had been officially adopted, which she said didn’t “make sense.”
Reuveni repeated that the government’s position was that there was no implementation until an immigration officer took action. Jackson replied that she didn’t “understand a world” where an agency announced a new policy and formally published it in the Federal Register, but didn’t consider it “implemented” until a line officer did something.
The ACLU and other groups that sued are arguing that DHS failed to follow the required administrative procedures before adopting the new policy in violation of the Administrative Procedure Act, and that the new policy violates immigrants’ due process and other constitutional rights.
ACLU attorney Anand Balakrishnan argued on Friday that the problem was that the government was subjecting an entirely new group of people to the faster deportation process without giving them certain legal protections, such as time to gather evidence or to contact a lawyer. This new group of immigrants previously would have been entitled to the full set of legal protections under the normal deportation process in US immigration courts, he said.
The ACLU is arguing for an injunction completely blocking the new policy. The government is arguing that if the judge does issue an order, it should only apply to members of the groups that sued. Jackson expressed annoyance at the Trump administration’s criticism of judges for entering “nationwide injunctions” — she said that in a case like this, any order she entered would be directed at whatever federal agency adopted the rule. If the effect was nationwide, she said, that was only because the agency had decided to apply the rule at issue that way.
Jackson also pushed back on Reuveni’s argument that the Administrative Procedure Act didn’t apply to Homeland Security acting Secretary Kevin McAleenan’s decision to adopt the expanded expedited removal policy because he had “sole discretion” to do it. Jackson quipped that just because Congress gave an agency head discretion to carry out a particular policy, didn’t mean officials could rely on questionable means — she gave the example of a Ouija board — and avoid scrutiny in court.