Immigration and Customs Enforcement/courtesy photo

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.