Notice & Comment

Due Process Sleight of Hand, by Jill E. Family

familyj_6999[2/21 3:10PM Update: The final signed versions of the Kelly guidance memos are available here. The final version of the relevant memo includes the same rationale about immigration court backlogs discussed in this post.]

Are these the actual guidance memos? Two guidance memos signed by Secretary of Homeland Security Kelly recently surfaced that appear to implement many of the directives contained in President Trump’s January 25, 2017 immigration executive orders. (These executive orders are not the travel ban dated January 27, 2017, but rather are the executive orders I discussed here.) Confusingly, these signed Kelly guidance memos may not actually be the final versions of these memos; there are some reports that the memos are still under White House review.

Regardless of whether they are final, one of the signed memos contains a due process sleight of hand that simply cannot be ignored. As I previously predicted, the Trump administration is trying to use the troubles of the immigration court system to argue that it cannot give hearings to immigrants. In the memo, Secretary Kelly argues that the government needs to expand the use of expedited removal because there is a large backlog of cases awaiting adjudication in the immigration courts. Expedited removal is “expedited” because under that kind of removal the government does not provide a hearing before an immigration judge. Removal moves faster because the government does not provide a hearing. The Kelly memo directs an unprecedented expansion of expedited removal. Currently expedited removal applies if a person does not possess valid entry documents and is apprehended within 100 miles of the border within two weeks of arriving in the United States. Under the Kelly memo, expedited removal apparently would apply to the statutory limit: those without proper entry documents encountered anywhere in the United States within two years of arrival would be subject to expedited removal.

Secretary Kelly expressly invokes the backlog of cases in the immigration courts as a reason why the government needs to skip the hearing. He is arguing that because it is taking the government some time to provide that process, it should just abandon the whole endeavor. This is an unacceptable line of reasoning. The government has starved the immigration courts of resources for years. Under the Obama administration, the immigration adjudication system did not receive adequate investments to keep up with increased enforcement efforts. It appears the Trump administration intends to continue this trend by shrugging its shoulders and relying more on expedited removal.

Protecting individual rights may be harder than ignoring them, but the extra work is not an excuse for giving up on individual rights. The Trump administration’s plans to expand expedited removal will force litigation about the expansion, including litigation about the constitutionality of expedited removal. The Due Process Clause protects all “persons” within the United States. The constitutionality of expedited removal, even just applied near the border, is not fully resolved. Therefore, the expansion of expedited removal will lead to a different kind of litigation. The Trump administration simply should avoid that litigation and honor individual rights by providing hearings.


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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