ACLU, Simpson Thacher Tackle Immigration-Rights Groups' Suit Over Trump Administration's 'Fast-Track Deportations'
The rule greatly increases the reach of “expedited removal” to potentially hundreds of thousands of additional migrants. It applies to any migrant arrested anywhere in the country who came into the U.S. illegally and who can't show that they’ve lived continuously in the U.S. for at least two years.
August 09, 2019 at 10:07 AM
5 minute read
The original version of this story was published on National Law Journal
Immigration-rights groups represented by the ACLU and other lawyers have sued the Trump administration in an effort to block a new federal rule that they say will expose hundreds of thousands of additional migrants to so-called fast-track deportations.
Pointing to both alleged constitutional and procedural violations, the community-based groups’ complaint, lodged in the U.S. District Court for the District of Columbia, asks for injunctive and declaratory relief, and moves to thwart the rule, which the plaintiffs say was published July 23 in the Federal Register without any notice-and-comment or grace periods.
The rule greatly increases the reach of “expedited removal” of migrants by U.S. Immigration and Customs Enforcement agents, making the already-controversial process now applicable to any person arrested anywhere in the U.S. who came into the country illegally and who can’t show that they’ve lived continuously in the U.S. for at least two years.
Before the rule, expedited removal applied only to migrants who’d been in the country for 14 days or less, and who were apprehended within 100 miles of a U.S. border.
Under “expedited removal,” the complaint emphasizes, apprehended migrants do not get access to an attorney or any review of their case before an immigration judge.
The complaint further explains that if the migrant indicates an intention to apply for asylum or expresses fear of return to their original country, then an immigration officer will refer the person, but only for “a rudimentary screening interview with an asylum officer, referred to as a ‘credible fear’ interview, to determine whether the individual should be able to apply for asylum and related humanitarian relief.”
According to the three community organizations—Make the Road New York, La Unión del Pueblo Entero or LUPE, and We Count!—the expedited removal process itself, which they say was created “two decades ago,” represents a “major departure from a consistent century-long norm of providing all noncitizens within the United States with notice, access to counsel, an opportunity to prepare, and a contested hearing when they face removal.”
Now, the groups, along with their lawyers at American Civil Liberties Union, the American Immigration Council and Simpson Thacher & Bartlett, say that the “unprecedented expansion” of the practice under the Trump administration “means that low-level DHS [Department of Homeland Security] officers can … immediately subject hundreds of thousands of additional individuals to expedited removal, without any consideration of their family ties—including ties to U.S. citizen or lawful permanent resident family members—or their strong ties to their communities,” and “without any court hearing or opportunity for meaningful review.”
Moreover, contend the groups and their attorneys, the decision to expand the practice “disregards twenty years of experience showing that the expedited removal process, even at the border, is rife with errors and results in widespread violations of individuals’ legal rights.”
And “that experience,” they add, “shows that the government has erroneously deported numerous individuals through expedited removal, including U.S. citizens and individuals with bona fide fears of persecution in their countries of origin.”
The Department of Justice on Thursday did not respond to a request for comment on the groups’ filing, which was lodged Aug. 6.
Legally, the immigration groups and their attorneys, including several from the ACLU’s Immigrants’ Rights Project (including lawyers in both New York and Washington) and from the ACLU’s Washington, D.C., office, say that the instituting of the rule itself violated the federal Administrative Procedure Act.
The Trump administration, they argue in the complaint, took this “far-reaching step by publishing a directive in the Federal Register, styled as a Notice,” and when doing so they “bypassed the notice-and-comment and grace periods required by the [APA] for regulatory changes of this nature.”
And that wrongful step, they say, in turn “depriv[ed] the public an opportunity to comment prior to expansion even though it easily could have done so during the two-plus years between the [initial] Executive Order and the issuance of the new rule.”
Moving to constitutional arguments, the plaintiffs further argue that “expanding expedited removal to individuals apprehended in the interior of the United States who have been living in the country for extended periods of time violates the Due Process Clause of the Fifth Amendment, because it deprives them [of] a meaningful opportunity and process to contest removal before they are deported.”
“Likewise,” continued the groups and their attorneys, “the expanded use of expedited removal violates federal [immigration] statutes requiring that noncitizens appearing before an immigration officer or immigration judge be permitted to be represented by counsel.”
The groups and their lawyers, including three Simpson Thacher attorneys based in New York and one, Adrienne Baxley, based in Washington, also contended that the expedited removal expansion was “arbitrary and capricious.” They also argued that if there is no judicial review of individual removal orders, the orders will violate the Suspension Clause.
This content has been archived. It is available through our partners, LexisNexis® and Bloomberg Law.
To view this content, please continue to their sites.
Not a Lexis Subscriber?
Subscribe Now
Not a Bloomberg Law Subscriber?
Subscribe Now
NOT FOR REPRINT
© 2024 ALM Global, LLC, All Rights Reserved. Request academic re-use from www.copyright.com. All other uses, submit a request to [email protected]. For more information visit Asset & Logo Licensing.
You Might Like
View AllCan Law Firms Avoid Landing on 'Enemy' List During the Trump Administration?
5 minute readMeet the Pacific Northwest Judges Who Rejected the Kroger-Albertsons Supermarket Merger
4 minute readManufacturing Group Urges Sweeping Environmental Deregulation in Letter to Trump
Trending Stories
Who Got The Work
Michael G. Bongiorno, Andrew Scott Dulberg and Elizabeth E. Driscoll from Wilmer Cutler Pickering Hale and Dorr have stepped in to represent Symbotic Inc., an A.I.-enabled technology platform that focuses on increasing supply chain efficiency, and other defendants in a pending shareholder derivative lawsuit. The case, filed Oct. 2 in Massachusetts District Court by the Brown Law Firm on behalf of Stephen Austen, accuses certain officers and directors of misleading investors in regard to Symbotic's potential for margin growth by failing to disclose that the company was not equipped to timely deploy its systems or manage expenses through project delays. The case, assigned to U.S. District Judge Nathaniel M. Gorton, is 1:24-cv-12522, Austen v. Cohen et al.
Who Got The Work
Edmund Polubinski and Marie Killmond of Davis Polk & Wardwell have entered appearances for data platform software development company MongoDB and other defendants in a pending shareholder derivative lawsuit. The action, filed Oct. 7 in New York Southern District Court by the Brown Law Firm, accuses the company's directors and/or officers of falsely expressing confidence in the company’s restructuring of its sales incentive plan and downplaying the severity of decreases in its upfront commitments. The case is 1:24-cv-07594, Roy v. Ittycheria et al.
Who Got The Work
Amy O. Bruchs and Kurt F. Ellison of Michael Best & Friedrich have entered appearances for Epic Systems Corp. in a pending employment discrimination lawsuit. The suit was filed Sept. 7 in Wisconsin Western District Court by Levine Eisberner LLC and Siri & Glimstad on behalf of a project manager who claims that he was wrongfully terminated after applying for a religious exemption to the defendant's COVID-19 vaccine mandate. The case, assigned to U.S. Magistrate Judge Anita Marie Boor, is 3:24-cv-00630, Secker, Nathan v. Epic Systems Corporation.
Who Got The Work
David X. Sullivan, Thomas J. Finn and Gregory A. Hall from McCarter & English have entered appearances for Sunrun Installation Services in a pending civil rights lawsuit. The complaint was filed Sept. 4 in Connecticut District Court by attorney Robert M. Berke on behalf of former employee George Edward Steins, who was arrested and charged with employing an unregistered home improvement salesperson. The complaint alleges that had Sunrun informed the Connecticut Department of Consumer Protection that the plaintiff's employment had ended in 2017 and that he no longer held Sunrun's home improvement contractor license, he would not have been hit with charges, which were dismissed in May 2024. The case, assigned to U.S. District Judge Jeffrey A. Meyer, is 3:24-cv-01423, Steins v. Sunrun, Inc. et al.
Who Got The Work
Greenberg Traurig shareholder Joshua L. Raskin has entered an appearance for boohoo.com UK Ltd. in a pending patent infringement lawsuit. The suit, filed Sept. 3 in Texas Eastern District Court by Rozier Hardt McDonough on behalf of Alto Dynamics, asserts five patents related to an online shopping platform. The case, assigned to U.S. District Judge Rodney Gilstrap, is 2:24-cv-00719, Alto Dynamics, LLC v. boohoo.com UK Limited.
Featured Firms
Law Offices of Gary Martin Hays & Associates, P.C.
(470) 294-1674
Law Offices of Mark E. Salomone
(857) 444-6468
Smith & Hassler
(713) 739-1250