Notice & Comment

Draining Due Process, by Jill E. Family

familyj_6999The real life implications of President Trump’s immigration executive orders exploded over the weekend. On Friday, President Trump proclaimed the unwillingness of the United States to accept refugees by suspending the whole overseas refugee program for 120 days and indefinitely suspending that program for Syrian refugees. He also cut off all immigration from seven countries for 90 days (Iran, Iraq, Libya, Sudan, Syria, Somalia and Yemen).

The Department of Homeland Security refused entry to refugees and other legal immigrants who were in transit when President Trump signed the executive order. Other individuals about to board flights to the United States with plans to study, work or do scientific research suddenly found those plans to be impossible. Even green card holders from the seven countries are now prohibited from returning home. The bans apply to dual nationals, meaning, for example, that a member of the UK Parliament who is a dual UK-Iraqi citizen is no longer welcome in the United States. Litigation against the bans is already underway.

The hallmark American virtue of due process is greatly diminished by the bans. Approved refugees now face a refusal to admit them, despite that they made firm plans to leave their countries based on approved paperwork. Returning lawful permanent residents face the prospect of not being able to return home without any hearing to plead his or her case.

While the flurry of activity this weekend centered on arrivals, the immigration executive orders also diminish due process for individuals already inside the United States. Two additional executive orders issued last Wednesday expand the government’s capacity to apprehend while reducing due process for those apprehended. The orders aim to add 15,000 more enforcement officers and additional detention facilities while prioritizing for removal almost anyone who is removable. Notably missing are explicit additional resources to hire more adjudicators to decide, using established procedures, whether a seized foreign national is in fact deportable or whether that individual has a claim for relief from deportation.

This is not good news for the immigration adjudication system. The system is already massively overloaded due to years of both Republican and Democratic neglect. Immigration judges lack decisional independence and the immigration courts are notoriously under-resourced. For non-detained cases, the immigration courts are scheduling hearings that are years away.

On the one hand, the dysfunction of the immigration adjudication system could be seen as a stumbling block to President Trump’s plans. He simply will not be able to push additional foreign nationals through the immigration courts before the end of his first term. The problem with this view is that it assumes that President Trump is committed to providing fair process to individuals in removal proceedings. To the contrary, one order directs the Department of Homeland Security to increasingly divert individuals from ever entering the immigration adjudication system.

President Trump did not start this diversion idea, but he will expand it farther than any other administration. He has directed the Department of Homeland Security to expand the use of expedited removal to its statutory limit. Under expedited removal, proceedings are more eliminated than expedited. For those lacking proper entry documents, there is no hearing before an immigration judge unless an individual expresses a credible fear of persecution in his or her home country. Instead of a hearing before an immigration judge, with available administrative review and the possibility of judicial review, there is only cursory supervisory review by another removal officer.

Expedited removal’s reach previously extended to those apprehended at the border or within 100 miles of the US border within 14 days of entry. Under this new scheme, expedited removal will be applied without geographical restriction (the individual may be apprehended anywhere in the United States) and with an expanded time frame. Now, a foreign national must show two years of physical presence to escape expedited removal and to receive a hearing before an immigration judge. The Supreme Court has never fully resolved the constitutionality of expedited removal, even in its more limited application.

As I have argued before, the failings of the immigration adjudication system are not an excuse to perform end-runs around the system and to ignore administrative process design criteria. The system needs to be fixed and not forgotten. This is not only a question of what is fair for individuals charged with removal. It is also a signal of the administration’s attitude toward due process rights. That should be concerning to anyone interested in agency adjudication and individual rights.


Jill E. Family is the Commonwealth Professor of Law and Government and Director of the Law and Government Institute at Widener University Commonwealth Law School.

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