The Hill (Op-Ed)
By Nolan Rappaport
May 05, 2017
President Donald Trump experienced some failures with his immigration policies during his first 100 days in office, but it would be a mistake to underestimate him. He has made major changes in enforcement policy.
Destruction of the Home Free Magnet.
President Barack Obama focused his immigration enforcement efforts primarily on aliens who had been convicted of serious crimes or who had been caught near the border after making an illegal entry, and he protected aliens here unlawfully who were not in a priority category.
His administration’s enforcement policy memorandum required ICE officers to obtain permission from a Field Office Director before arresting a deportable alien who was not in a priority category.
This created what I call a “home free magnet.” Aliens wanting to enter the United States illegally knew that they would be safe from deportation once they had reached the interior of the country unless they were convicted of a serious crime. This was a powerful incentive to do whatever was necessary to enter the United States.
President Trump destroyed this magnet with tough campaign rhetoric and his Executive Order, Enhancing Public Safety in the Interior of the United States, which greatly expanded enforcement priorities. No deportable alien is safe under President Trump’s enforcement policies.
This seems to have improved border security already.
In April 2017, CBP reported a sharp decline in the number of aliens apprehended along the Southwest border, and in the number of aliens who were found inadmissible at ports of entry. In March, 16,600 individuals were apprehended or deemed inadmissible, which was a 30 percent decrease from February, and a 64 percent decrease from the same month in 2016.
Interior enforcement against all aliens who are here illegally may be a more effective deterrent than a wall would be.
This is not the first time that the importance of interior enforcement has been recognized. It was the basis for the last legalization program 30 years ago.
Expansion of Expedited Removal Proceedings.
As of the end of January 2017, the immigrant court’s backlog was 542,411 cases. Even if no additional cases are filed, it would take the court two-and-a-half years to catch up with its backlog.
President Trump finessed his way around this problem by expanding the use of expedited removal proceedings with his Executive Order, Border Security and Immigration Enforcement Improvements.
In expedited removal proceedings, which are conducted by immigration officers, an alien who lacks proper documentation or has committed fraud or a willful misrepresentation to enter the country, will be deported without a hearing before an immigration judge, unless he requests an asylum hearing.
Asylum hearings, which are conducted by immigration judges, are available to aliens who establish a credible fear of persecution. An asylum officer determines whether the alien has a credible fear of persecution.
The alien cannot have assistance from an attorney in these proceedings, and, because detention is mandatory, his ability to gather evidence in support of his case is severely restricted.
Moreover, Section 208(a)(2)(B) of the Immigration and Nationality Act (INA) limits asylum to aliens who have been in the United States for less than a year (with some exceptions).
If the asylum officer rejects the credible fear claim, the alien can request an expedited review of his credible fear case by an immigration judge, which usually is held within 24 hours but in no case later than seven days after the adverse credible fear determination.
Federal court review is available, but it is restricted to cases in which the alien makes a sufficient claim to being a United States citizen, to having lawful permanent resident status, or to having been admitted previously as a refugee or an asylee.
A federal judge recently held that asylum denials in expedited removal proceedings are not reviewable in federal court and the Supreme Court let the decision stand.
Previous administrations limited expedited removal proceedings to aliens at the border and aliens who had entered without inspection but were apprehended no more than 100 miles from the border after spending less than 14 days in the country.
The Executive Order expands expedited removal proceedings to the full extent of the law. Section 235(b)(1)(A)(iii)(ll) of the INA authorizes expedited removal proceedings for aliens who have been physically present in the United States for up to two years.
It is likely to be very difficult for aliens to establish physical presence of more than two years, and if they do, they will be faced with the one year deadline for asylum applications, which in many cases is the only form of relief available to an undocumented alien.
President Trump will be able to use expedited removal proceedings to deport millions of undocumented aliens without hearings before an immigration judge.
The only way to stop him is to find a way to work with him on a comprehensive immigration reform bill that meets the political needs of both parties, and time is running out.
Nolan Rappaport was detailed to the House Judiciary Committee as an Executive Branch Immigration Law Expert for three years; he subsequently served as an immigration counsel for the Subcommittee on Immigration, Border Security, and Claims for four years. Prior to working on the Judiciary Committee, he wrote decisions for the Board of Immigration Appeals for 20 years. He also has been a policy advisor for the DHS Office of Information Sharing and Collaboration under a contract with TKC Communications, and he has been in private practice as an immigration lawyer at Steptoe & Johnson.
The views expressed by contributors are their own and are not the views of The Hill.
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