FEDERAL COURT BLOCKS TRUMP ADMINISTRATION’S EXPANDED “EXPEDITED REMOVAL” DEPORTATION POLICY

Written by: Taher Kameli, Esq.

While Congress (or at least the House of Representatives) is perhaps now showing some opposition to President Trump on the issue of impeachment, Congress has not been able to block the anti-immigration policies of the Trump administration.  Instead, it has been the judicial branch of government, rather than the legislative branch of government, which has been more effective in opposing the Trump administration on the issue of immigration. As another example of the judiciary ruling against an immigration policy of the Trump administration, on September 27, 2019, a Federal court blocked the Trump administration’s expanded “expedited removal” deportation policy.

As background, in an executive order in January, 2017, President Trump directed the Department of Homeland Security (DHS) to increase the use of “expedited removal”.  Under “expedited removal”, an undocumented immigrant generally can be deported without an immigration hearing or access to an attorney. At the time of President Trump’s executive order, “expedited removal” generally only applied to undocumented immigrants who had been in the United States 14 days or less and were encountered by an immigration officer within 100 miles of the U.S. border.  Pursuant to President Trump’s executive order, on July 23, 2019, DHS expanded its “expedited removal” deportation authority to generally more broadly apply to undocumented immigrants who have been in the United States 2 years or less and were encountered by an immigration officer anywhere in the United States.

In the case of Make The Road New York v. McAleenan, 2019 U.S. Dist. LEXIS 166944 (D.D.C. 2019), Judge Ketanji Brown Jackson, of the United States District Court for the District of Columbia, issued a preliminary injunction against the Trump administration’s expanded “expedited removal” deportation policy.  Judge Jackson’s Order states, “Defendants are PRELIMINARILY ENJOINED from enforcing the policy change that Acting Secretary of the Department of Homeland Security Kevin McAleenan implemented in the Notice filed in the Federal Register on July 23, 2019, see Designating Aliens for Expedited Removal, 84 Fed. Reg. 35,409 (July 23, 2019), pending the outcome of the litigation before this Court.  Consequently, Defendants and their agents are prohibited from applying the expanded expedited removal policy set forth in the agency’s Notice of July 23, 2019, to anyone to whom it would apply, while this action proceeds, until further Order of the Court”.

Judge Jackson held, “Plaintiffs are also likely to succeed on the merits of their contention that the July 23rd Notice is arbitrary and capricious, and therefore unlawful, because DHS failed to address significant flaws in the expedited removal system, nor does it appear that the agency considered the potential impact of the expansion of that system on settled undocumented non-citizens and their communities.  Unlike private citizens, government officials are required by law to engage in reasoned decision making that takes into account all of the facts and circumstances that are relevant to their consequential policy determinations. Based on the record presented here, the Court finds it likely that, with respect to the July 23rd Notice, DHS failed to do so. The Court also concludes that a preliminary injunction is warranted while this lawsuit is pending, because Plaintiffs have demonstrated that they have members who are subject to the expanded expedited removal policy, and that those members, and others, might suffer irreparable harm in the absence of a preliminary injunction.  The record also supports a finding that the fear caused by DHS’s current threat to commence enforcement of its expanded expedited removal policy may be presently harming Plaintiffs’ members and others in immigrant communities. Moreover, given the potential for mistaken application of the expedited removal practice to persons who are not otherwise subject to deportation, which has serious implications for society writ large, the Court finds that interim injunctive relief is in the public’s interest, while, on the other hand, it is unlikely that the issuance of such an injunction would harm DHS or the public to such an extent that that injury would outweigh the benefits of preserving the status quo while this matter is under review.  Finally, in ordering the preliminary relief that Plaintiffs have requested, this Court squarely rejects DHS’s argument that any injunctive relief that is issued in this case, whether preliminary or permanent, can only prohibit application of the agency’s unlawful rule as it applies to these plaintiffs. . . . If this Court’s Order preliminarily prohibiting DHS from enforcing the expedited removal policy the agency announced in the July 23rd Notice reverberates nationally, that is simply and solely because DHS previously decided to apply its potentially defective rule nationwide”.

The Make The Road New York v. McAleenan case shows how litigation can be used to protect immigrant rights.  It is critical for immigrants to retain qualified immigration litigation attorneys, such as the Law Offices of Kameli and Associates, which has had years of experience and success in immigration litigation cases.  If you need assistance with any immigration matter, please contact the Law Offices of Kameli and Associates, at taher@kameli.com or 312-233-1000, for support.