Supreme Court just allowed Trump’s expansion of deportations to go unchecked

Asylum seekers now have little recourse to challenge fast-tracked deportations.

VOX

The Supreme Court just issued a ruling with sweeping, immediate implications for the immigration enforcement system, potentially allowing the Trump administration to move forward in deporting tens of thousands of immigrants living in the US with little oversight.

The case, Department of Homeland Security v. Thuraissigiam, concerns immigration officials’ authority to quickly deport migrants who don’t express fear of returning to their home countries, which would make them eligible for asylum. The process, first enacted in 1996 and known as “expedited removal,” takes weeks, rather than the typical years it can take to resolve a full deportation case, and does not involve a hearing before an immigration judge or offer immigrants the right to a lawyer.

In a 7-2 decision, the justices found Thursday that newly arrived immigrants don’t have the right to challenge their expedited removal in federal court, which advocates claim is a necessary check on immigration officials to ensure that migrants with credible asylum claims aren’t erroneously turned away and have access to a full and fair hearing.

Until recently, only a small number of immigrants who had recently arrived in the US could be subjected to expedited removal. But President Donald Trump has sought to vastly expand US Immigration and Customs Enforcement’s power to use expedited removal as a means of deporting any immigrant who has lived in the US for up to two years, potentially affecting an estimated 20,000 people.

Thursday’s decision therefore allows Trump to significantly scale up his immigration enforcement apparatus while going largely unchecked.

How expedited removal works

Full deportation proceedings are lengthy by design: Immigrants have a right to seek protection in the US and should be afforded a full opportunity to do so. Under expedited removal, however, that process is condensed to a matter of weeks, which most immigration attorneys say is not conducive to building a legal case in their favor.

If a migrant arrives in the US without authorization and expresses fear of persecution in their home country, a US Customs and Border Protection agent will first determine whether to refer them to an asylum officer in US Citizenship and Immigration Services for a screening known as a “credible fear” interview.

Asylum officers undergo extensive training to administer these interviews in a non-adversarial way and to interact with people who have faced trauma, including rape, domestic abuse, torture, and death threats. But under Trump, CBP officials have also started administering these interviews, which advocates say they are ill-equipped to do. While they have to undergo some additional training to administer these interviews, CBP agents are typically armed and have sought in many documented cases to intimidate and use excessive force against asylum seekers.

The Trump administration has also proposed changes to the credible fear interview process that would make it much more difficult for asylum seekers to pass the credible fear screening.

But if they do pass, they will have the opportunity to fight their deportation in immigration court, where they will typically have a short, initial hearing before a judge and a government attorney to learn about their rights and how their case will proceed. They are usually given time to retain a lawyer and prepare their case, which includes gathering documents attesting to experiences that might make them eligible for relief from deportation or protections under the asylum system or international torture agreements.

They then have to wait for another hearing in which they actually argue why they should be permitted to remain in the US before an immigration judge makes a decision in their case. Immigrants with currently pending cases have been waiting almost two years on average for that second hearing, according to the most recently available data.

These exhaustive proceedings in immigration court, however, are only accessible to migrants if a CBP agent initially refers them to an asylum officer and they pass a credible fear screening. Asylum seekers can challenge a credible fear determination before the asylum officer’s supervisor and then an immigration judge, but after that, they have no recourse — they may face expedited removal.

What’s more, CBP agents have historically failed to identify and refer every migrant who claims fear of persecution in their home country to asylum officers, allowing people with potentially valid asylum claims to fall through the cracks, Shoba Sivaprasad Wadhia, a professor at Pennsylvania State Law, said.