Fast-tracking deportations of detained immigrants explained

Masked federal agents wait until a judge dismisses the case against the immigrant, who is swiftly then handcuffed and jailed en route to a rapid deportation pipeline. It's a scene that is playing out in New York and beyond.

How can an immigrant with a case pending — sometimes for asylum — who’s been showing up to court, as ordered, be nevertheless detained and deported? The mechanism is through turbocharging a Clinton-era law, creating a fast-track deportation process called expedited removal.

Here are questions and answers about one of the ways the Trump administration executes what then-candidate Donald Trump promised would be the "largest deportation operation in American history."

What is 'expedited removal'? 

It’s a process by which an immigrant who’s been in the country for less than two years can be deported. It's "a faster way to deport them rather than having to wait to go through the clogged immigration court system," retired Cornell Law School Professor Stephen W. Yale-Loehr, who co-authored the treatise "Immigration Law & Procedure," told Newsday.

That essentially means that an immigrant who has been placed into expedited removal has no right to mount a court challenge.

"During expedited removal," he said, "people can be detained."

The Immigration and Customs Enforcement agency under the Trump administration has opted to detain those in expedited removal. It’s a power the law authorizes for the executive branch but does not require.

"Right now, ICE claims that anyone in expedited removal must be detained," Yale-Loehr said.

Alternatively, Yale-Loehr said, a judge can issue a final order of deportation, and then ICE can pick the person up pending the actual deportation.

Why is the administration using expedited removal?

Proponents argue that given the yearslong backlog in immigration court, it’s impractical to wait for a slow process to deport someone who came into the country illegally — and likely does not qualify for asylum or another basis for staying in the United States, and failing to rapidly remove those here illegally incentives illegal immigration.

Stephen Miller, a senior Trump adviser, articulated the case to Fox News earlier this year for rapid deportations, criticizing advocates who say that immigrants deserve more due process.

"They have the temerity to say that every single invader that Joe Biden let in should get their own individual judicial trial before they’re deported," Miller said in April. "One at a time. Each one. A million-dollar trial in front of a communist judge to decide whether or not we can send them home," he continued. "How about, ‘Hell no!?'"

Who are the judges who are dismissing the cases as federal agents wait?

Immigration judges, while quasi-independent, are ultimately employees of and subject to the supervision by the executive branch and aren’t judges in the traditional sense of being part of a co-equal, independent judiciary.

What is the history of expedited removal?

It was created in 1996 under the Illegal Immigration Reform and Immigrant Responsibility Act and initially applied to far narrower categories of immigrants, but those categories have been expanded over the years. The law largely strips the courts of jurisdiction to hear challenges to being deported for those in expedited removal. In 2020, the U.S. Supreme Court upheld the process and said it doesn’t violate immigrants’ due process or habeas corpus rights. While some federal judges have limited the expansion of expedited removal, some appeals court judges have stopped lower courts from suspending Trump’s expedited removal plans.

Has expedited removal been used widely in the past?

Yes. In 2002, for example, the Bush administration ordered that Haitians and certain others who tried to come illegally to the United States by sea be detained and processed via expedited removal, according to an article in the Albany Times Union. ICE’s predecessor agency, the Immigration and Naturalization Service, said in a statement then that merely a perception of relaxed rules could catalyze a mass influx of migrants and endanger national security.

Two years later, the Bush administration articulated a similar justification — terrorism prevention — when ordering the rapid repatriation, without court challenge, of certain categories of immigrants who crossed the border illegally, according to an article in the Dallas Morning News. Until that change, those who were caught under certain circumstances were released into the community pending court dates, but most failed to show up to the proceedings, the articles say. 

What is the controversy surrounding expedited removal?

Human rights groups and advocates for immigrants have long criticized the use of expedited removal, on the grounds that those fleeing persecution are vulnerable to being deported to places where their lives are in danger. In a 2005 report by the U.S. government, the Commission on International Religious Freedom found "serious flaws that place asylum-seekers at risk of being returned to countries where they face persecution and being mistreated while in detention."

With expedited removal, immigrants also have no right to a lawyer and, even if they want one or could afford one, the process moves so fast that it's almost possible to find a lawyer within the time constraints. The process has led to mistaken identity and entrapped legal residents and even U.S. citizens who have no practical way to prove they belong in America.

By Matthew Chayes

matthew.chayes@newsday.comchayesmatthew

Matthew Chayes, a Newsday reporter since 2007, covers New York City.