Just four days after the Supreme Court blocked the Trump administration’s bid to wind down DACA on a procedural technicality, an appellate court in Washington, D.C., green-lighted a program to fast-track removal of illegal aliens.
In a significant victory for immigration enforcement, the D.C. panel overturned an injunction that had blocked the Department of Homeland Security (DHS) from broadening the number of migrants subject to expedited deportation.
Quicker deportations have been a top administration priority. Upon taking office, one of President Trump’s first executive orders directed DHS to expand expedited removals, with an emphasis on recently arrived illegal aliens.
The DHS program authorizes accelerated removal of illegal aliens who have been in the U.S. for less than two years. Previously, expedited removal was limited to a 100-mile zone along the border; to those who arrived by sea; and to those in the country for 14 days or less.
Judge Patricia Millett, an Obama appointee on the D.C. circuit, affirmed in the court’s unanimous ruling that federal statutes give the DHS secretary “sole and unreviewable discretion” to apply expedited removal within certain constraints.
“There could hardly be a more definitive expression of congressional intent to leave the decision about the scope of expedited removal, within statutory bounds, to the secretary’s independent judgment,” Millett wrote.
The three-member D.C. panel voided an injunction issued by another Obama appointee last fall. In that ruling, U.S. District Judge Ketanji Brown Jackson asserted that the Trump administration did not follow proper decision-making procedures, such as the formal notice-and-comment period required for major federal rule changes. She called the DHS action “arbitrary and capricious.” (DHS’s public notice can be read here.)
Jackson, who was appointed to the federal bench in 2012 and was interviewed for a Supreme Court vacancy in 2016, issued her 126-page ruling last September, just before midnight on a Friday.
DHS argued that expedited deportation would relieve overburdened immigration courts and “harmonize” existing regulations to apply equally to illegal aliens. “The effect of that change will be to enhance national security and public safety — while reducing government costs — by facilitating prompt immigration determinations,” the agency said.
The Department of Justice also noted that, “Congress expressly authorized the Secretary of Homeland Security to act with dispatch to remove from the country aliens who have no right to be here.”
In a perfect world, DHS would not have restricted fast-track deportations to aliens here illegally for less than two years – a timeframe that does seem arbitrary. But with more than 1 million illegal-entry cases pending in the nation’s immigration courts, the policy will provide at least some relief.
Immigration lawyers who tried to block the DHS action are now on the defensive. The American Civil Liberties Union maintains that the appeals court decision did not definitively resolve the case and wants a do-over. ACLU says it will return to Jackson’s court to press claims she did not address before issuing her injunction.