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Questions and Answers
Last week, the Senate delayed its holiday recess to continue with pressing negotiations over two disparate issues that have been tied together: foreign aid and domestic immigration policy. This Tuesday, Congress gave up on reaching an agreement this year, planning to take up the issue first thing in 2024.
President Joe Biden has been engrossed in efforts to secure more aid from Congress for Ukraine for several weeks now. To achieve those ends, he’s said he is “willing to make significant compromises on the border.”
And the “compromises” would be “significant” indeed: On the concessions table are severe immigration policies that could shut down pathways for migrants seeking haven in the U.S., including through the expansion of expedited removal — which we’ll be discussing in The Bridge today.
POGO has advocated against expansions of expedited removal in the past. With the policy under consideration again, we wanted to revisit the topic so you know what exactly is being bargained here.
I asked my colleague Katherine Hawkins, senior legal analyst at The Constitution Project at POGO, to explain a bit further.
Could you explain expedited removal as it exists currently?
“Expedited removal” is a form of deportation without due process, created by Congress in 1996. An immigration officer (employed by either Immigration and Customs Enforcement or Customs and Border Protection) essentially acts a judge, and non-citizens — who are detained and have no access to lawyers or practical ability to gather evidence — have the burden of proving that they should not be deported from the country.
Under current regulations, expedited removal can only be applied to noncitizens who arrive at a port of entry without permission to enter the United States, or who have crossed into the country without authorization within the last 14 days and are arrested within 100 miles of a land or sea border. In practice, though, not everyone who crosses the border under these circumstances is placed into expedited removal because of capacity issues.
How could expedited removal change as a result of the Senate negotiations?
The details are unclear, since senators have not released legislative text or detailed summaries of the proposals. But some news reports cite confidential sources saying negotiators are considering “nationwide expansion of the process known as expedited removal.”
Senators might be considering a mandatory requirement that the Secretary of Homeland Security extend expedited removal to the maximum extent permitted by statute, or broadening the statute, or limiting the exceptions to expedited removal even further.
The statute that created expedited removal already allows it to be applied nationwide (rather than within 100 miles of a land or sea border), to people who cannot prove they have been continuously present in the U.S. for two years (as opposed to 14 days). The Trump administration wrote rules trying to extend the use of expedited removal to its statutory maximum in 2019, a move POGO opposed, but President Donald Trump left office before the new rules took full effect and the Biden administration rescinded them.
Who could be affected by these changes?
Expedited removal is not supposed to be applied to anyone who has lived in the United States for two years or more, or to anyone who was legally admitted or paroled into the country (even if they subsequently lost their legal status). But because expedited removal eliminates procedural protections and restricts judicial review, there is a high risk of it being applied wrongfully — to non-citizens who have lawful immigration status; undocumented people who fall outside the expedited removal statute or regulation; legitimate asylum seekers; and even U.S. citizens.
What are the dangers of these changes?
The U.S. Border Patrol (an agency within CBP) would probably carry out a large number of expedited removals. The Border Patrol already has extensive powers to engage in racial profiling, conduct warrantless searches, and set up checkpoints within the United States. At its detention facilities, which are designed only for short-term stays but often hold people for longer, some people are detained without access to attorneys or family visits. POGO published a report earlier this year about the dangers of CBP abusing these powers.
Giving this immense power to immigration officers across the country invites future abuse of power — either by individual officers, or by an authoritarian executive branch. Stephen Miller, Trump’s most influential advisor on immigration, has told The New York Times that if Trump is re-elected, he plans to expand expedited removal and use it to carry out mass deportations, jailing people in huge detention camps near the border as they await deportation. Trump himself has repeatedly attacked immigrants as “poisoning the blood of our country” — most recently last weekend.
What other immigration policy changes are on the table?
Senate and White House negotiators have not released either legislative text or summaries of the changes being considered, so we are relying solely on press accounts. Other permanent changes to immigration law reportedly being discussed as a condition for providing a temporary extension of aid to Ukraine include:
- raising the burden of proof for asylum seekers;
- requiring refusal of asylum seekers if the number of daily border crossings exceeds a certain threshold; and
- implementing bans on asylum for people who pass through certain other countries on the way to the United States.
What else should we know about these negotiations?
Describing these negotiations as being about “the border” or even only about “asylum” is misleading — many of the proposals extend much further, and they could apply to people who entered the United States legally, have lived in the United States for years, or both.
If members of Congress understood that better, and if they saw that their constituents opposed an expansion of expedited removal, this legislation would be unlikely to pass. If it does pass, this could only be the beginning of some really harmful changes to U.S. immigration law.