By Kevin R. Johnson
[Cross-posted from Immigration Prof.]
Here is an outline of my presentation at the Section on Immigration Law Program on Immigration Adjudication in an Era of Mass Deportation, Association of American Law Schools 2018 Annual Meeting
The program focused on immigration adjudication and its transformation during President Trump's first year in office. The Trump administration has sought to influence immigration adjudication through
- Increasing cases coming into the removal system through aggressive enforcement; and
- Facilitating the disposition of cases. For example, Attorney General Jeff Sessions' December 2017 memorandum encourages the "prompt resolution of meritless cases."
These steps are consistent with President Trump's immigration policy preferences of (1) increasing removals; and (2) decreasing legal immigration through tightening the visa process and other steps.
During his first year in office, the three "travel" or "Muslim" ban executive orders were perhaps the Trump administration's most high profile immigration enforcement initiatives. The travel bans are part of a series of immigration enforcement actions that have created considerable fear in immigrant communities.
My focus here is on two other immigration enforcement executive orders issued in January 2017:
- Border Security and Immigration Enforcement Improvements Executive Order [Border Security Order]; and
- Enhancing Public Safety in the Interior of the United States Executive Order [Interior Enforcement Order].
A number of provisions in those orders will directly and indirectly affect immigration adjudication. Here are a few:
- Limits on Prosecutorial Discretion
Section 1 of the Interior Enforcement Order provides that there shall be no exemption of "classes or categories of removable aliens from potential enforcement." Immigration agencies must "employ all lawful means to enforce the immigration laws." Section 1 foreshadowed the end of the Deferred Action for Childhood Arrivals (DACA) program. It is aimed toward expanding the numbers of noncitizens subject to removal, similar to the end of DACA and the end of temporary protected status for Salvadorans did.
- Revival of Secure Communities and the Elimination of Priority Enforcement Program
Section 10 of the Interior Enforcement Order reinstated Secure Communities, which President Trump discontinued in November 2014. Little attention has been paid to this development, which will likely increase the cases in the removal pipeline. Secure Communities had been severely criticized as overbroad. The program fed large numbers of petty criminals into the removal system. State and local resistance to Secure Communities led to its dismantling.
- Bringing Back 287(g) Agreements
Interior Enforcement Order § 8 brings back cooperative agreements between state, local, and federal government to enforce the immigration laws under Immigration and Nationality Act §287(g), which the Obama administration had largely abandoned. Civil rights concerns with state and local enforcement contributed to the abandonment of 287(g) agreement. The Trump administration hopes to enhance state and local cooperation and to increase number of removable noncitizens.
4. Expansion of Expedited Removal
Expedited removal -- with limited rights for the noncitizens -- has been limited to noncitizens (1) apprehended within 100 miles of the U.S. border; and (2) in the country for less than two weeks. The rationale was that noncitizens in these categories had limited rights, given their short time in the United States, and necessarily few ties to the country.
Border Security Order § 11 eliminates the geographic limits to expedited removal and would make noncitizens in the country for up to two years subject to expedited removal. The order calls for the issuance of regulation to expand expedited removal along these lines. This would raise serious due process problems because it would bring immigrants with greater ties to the United States within the purview of expedited removal. See Landon v. Plasencia (1982).
- Immigrant Detention
Detention long has been a tool of immigration enforcement, but noncitizens have been generally permitted to post a bond and be released from custody before a removal hearing. Border Security Order § 6 ends "catch and release" of immigrants and bonding out of custody after apprehension. It makes mandatory detention official federal policy. Detention has been challenged in many lawsuits, including in one before the Supreme Court. See Jennings v. Rodriguez. Detention is a way of streamlining the docket. If detained, a noncitizen is more likely to agree to "voluntary departure" and forego a full hearing on removal and possible relief from removal.
CONCLUSION
Some of the Trump immigration measures are ill-conceived and weakly implemented. The first version of the travel ban arguably is an example. However, the two January 2017 immigration enforcement orders are more focused and directed when it comes to using the law and policy to (1) increase noncitizens in the removal system; and (2) facilitate removals.
It is important to note that the Executive Office for Immigration Review is housed in the Justice Department. Attorney General Sessions has expressed strong views on immigration and is taking steps to facilitate removals through immigration court system. He is increasing pressures to dispose of cases and may limit the discretion of immigration judges to not enter removal orders though such devices as administrative closure.
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These issues are discussed in detail in an article to be published in a forthcoming immigration symposium of the Santa Clara Law Review. Kevin R. Johnson, Immigration and Civil Rights in the Trump Administration: Law and Policy Making by Executive Order, 57 Santa Clara Law Review (forthcoming 2018).
