Trump’s “Express Deportations” Spell Disaster for Due Process

by Margaret Hellerstein

Photo Credit: Michelle Rau, Freepik

On April 11, Attorney General Jeff Sessions gave an impassioned speech at the Arizona-Mexico border in which he proclaimed the dawn of the “Trump era.” According to Sessions, the Trump era is a glorious new age in which the U.S. will finally be rid of the scourge of gang- and drug-related violence perpetrated by foreign nationals who are allegedly turning our cities and suburbs into “warzones.” Sessions has plenty of ideas on how to purge this “filth,” one of which is to direct federal prosecutors to seek judicial orders of removal, aka “express deportations.”

What are Express Deportations?

First, some background. Under the Immigration and Naturalization Act (INA), a foreign national is deportable if they have been convicted of a federal crime meeting the criteria for expedited proceedings. Ordinarily, a person convicted of this type of offense is sent to a detention center upon completion of their prison sentence. Express deportation cuts out the detention center and creates an assembly line of deportations whereby foreign nationals are sent directly back to their country of origin as soon as their prison sentence is complete.

While express deportation has been part of immigration law for decades, the measure has seldom been used because deportation proceedings are the province of immigration courts under the Justice Department. In recent years, however, more and more people have been slated for deportation, leading to a backlog of cases and lengthier times, that can stretch to years, in detention for those awaiting a decision from an immigration judge. Now that the Trump era is upon us, people subject to deportation proceedings can expect to be confined even longer in the inhuman conditions of our nation’s detention centers as cases pile up and backlogs get worse.

Read more about prolonged immigration detention and the Supreme Court here.

The Trump administration touts that express deportations would address this problem by diverting a selection of immigrants from the number of individuals and families headed for detention centers, thus freeing up detention space (if you can call it that).

The coldness of this calculation is not surprising given the Trump administration’s repeated refusal to acknowledge the rights of noncitizens. But it is also deeply problematic on a practical level for several reasons.

First, the type of crime that can trigger an express deportation is not clearly defined. Take “aggravated felony,” for example. When the term was introduced in 1988, it encompassed only murder and trafficking in drugs or firearms — i.e., intending to target gangs and cartels. But the definition has expanded over the years to include a litany of far less serious offenses such as receipt of stolen property and passport fraud. Even more troubling is the fact that some lower courts have chosen to ignore the one clear limitation on labeling a crime an aggravated felony, which is that the crime must be punishable by imprisonment for a term exceeding one year. The clear intent of this provision is to protect foreign nationals from suffering disproportionate immigration consequences for minor offenses. This did not prevent a circuit court from determining in 1999 that petit larceny, a misdemeanor under New York law, qualified as an aggravated felony because the maximum penalty for this offense is one year.

Read more about “aggravated felonies,” or “crimes of moral turpitude” that can trigger deportation here.

Second, at first glance, express deportation might seem like a more attractive option than spending years in a detention center having one’s human rights violated on a regular basis. The key, however, is that having been convicted of a crime that qualifies as “grounds for removal” does not mean that a person will actually be deported. Immigration courts exist separately from criminal courts for a number of reasons, one of which is to ensure that people subject to deportation have the chance to request relief from removal. Express deportation bypasses that process, depriving foreign nationals of the opportunity to be heard and ensuring that they will be deported even if they would otherwise have had a strong case for relief. Moreover, the INA is intentionally vague on what constitutes a deportable offense, leaving room for the introduction of mitigating evidence to halt a deportation. Under express deportation, such evidence is moot.

Conditions in immigration detention centers are grave and unacceptable, to be sure. But express deportation is not the solution.

By margaret, an immigration attorney in Los Angeles.