Expansion of expedited removal is a threat that bypasses due process, denying individuals their right to a fair legal hearing
OAKLAND — California Attorney General Rob Bonta led a coalition of 19 attorneys general in opposing the Trump Administration’s legally flawed effort to dramatically expand “expedited removal” into the interior of the United States and put untold numbers of Americans at risk for unlawful detention and deportation without due process. With expedited removal, a deportation can be carried out in little more than a matter of hours or days. The individual does not see a judge or have access to other safeguards that most Americans take for granted as a matter of basic justice. In an amicus brief in Make the Road New York v. Noem, the attorneys general urge the U.S. Court of Appeals for the District of Columbia to uphold a district court’s order temporarily halting this dramatic expansion of expedited removal, which stands in opposition to more than a century of precedent holding that those who have entered the U.S. are protected under the Fifth Amendment of the U.S. Constitution. As the U.S. Supreme Court has long recognized, the Constitution protects all persons in the U.S. from the deprivation of life, liberty, or property without due process of law. Deportation can be among the most severe and consequential deprivations of liberty an individual can experience — it can mean loss of one’s home, family, and for some, life itself.
“The federal government is attempting to deport people who have built lives and become part of their communities without giving them a fair hearing before a judge. It’s antithetical to our democratic values — and a clear violation of these individuals’ constitutional rights. Without due process, mistakes are inevitable. And with the current administration’s preference for volume and speed over accuracy and the rule of law, these life-upending mistakes will only continue to grow,” said Attorney General Bonta. “Think for a moment on this: If the Trump Administration had its way, there would be more due process rights afforded for traffic citations than in cases that decide whether a person is legally allowed to remain in this country. This is part and parcel for President Trump's indiscriminate mass deportation campaign. I’ve said it before and I’ll say it again, we are a nation of laws where everyone, including President Trump, must play by the rules. California will continue to fight to ensure that everyone in our state is afforded basic due process and can live without fear of persecution.”
The Trump Administration is expanding the use of expedited removal to allow federal officials to deport undocumented immigrants from anywhere in the U.S. under a fast-tracked process that does not allow for access to legal representation, witnesses, or a meaningful opportunity to present evidence and defenses. Initially, expedited removal occurred only at the border, and later it was authorized to be applied to undocumented individuals who were apprehended within 14 days of arrival in the U.S. without inspection and within 100 miles of the border. Now, the U.S. Department of Homeland Security is allowing expedited removal proceedings to deport undocumented immigrants living anywhere in the U.S. if the individuals cannot establish, to the satisfaction of a rank-and-file immigration officer, that they have continuously resided in the country for at least two years. This decision is then final without any further hearing or review. Immigration officers already hold substantial authority. Their power to deport will be unchecked with the expansion of expedited removals, and the incentive to seek mass arrests through sweeps and raids will only grow.
Even before the expansion of expedited removal, there were instances of mistakes and abuses documented in the execution of expedited removal. Now, immigration officers are being asked to make even more complicated determinations than when expedited removal was just used in close proximity to the border. In a nation with a population of more than 340 million, immigration officers must accurately identify the small fraction who are not citizens and who have been continuously present in the U.S. for less than two years—meaning mistakes are only likely to increase. Already, as the Trump administration has carried out large-scale sweeps and raids, there have been reports of U.S. citizens and others with lawful status being chased, manhandled, arrested, and detained, sometimes for days. And concerns have mounted that who gets targeted depends more than anything else on factors like race, the language one speaks, and the type of work one does.
In their brief, the attorneys general note that an expansion of expedited removals will inflict serious harm on the states’ families, communities, and the economy. Already some community members are afraid to leave their homes, even for basic necessities like food or to go to church. Additionally, more than 5.5 million U.S. born children live in mixed-status households. These children are at risk of severe mental health challenges, material hardship, or even placement in the foster care system. The risk of expedited removal, and the resulting lack of due process, may also discourage immigrants from reporting crime or seeking needed medical care, negatively affecting public safety and health.
The economic impacts are just as staggering. If the President’s mass deportation campaign continues, the U.S. gross domestic product (GDP) could decline as much as 7.4% by 2028, prices could rise by 9.1%, and tens of thousands of U.S. workers could lose their jobs. In California alone, mass deportation is expected to remove $275 billion from the state’s economy and result in $23 billion in lost tax revenue each year. With harms of this magnitude, it is essential that our immigration system aligns with the Constitution and fundamental principles of justice.
In filing the amicus brief, Attorney General Bonta is joined by the attorneys general of Arizona, Colorado, Connecticut, Delaware, Hawaii, Illinois, Massachusetts, Maryland, Maine, Michigan, Minnesota, New Jersey, Nevada, New York, Oregon, Vermont, Washington, and the District of Columbia.
A copy of the brief is available here.
