Yesterday, President Biden continued the swirl of executive actions altering immigration policy with highly anticipated announcements about the Trump administration’s infamous family-separation policy and asylum processing. Tucked into yesterday’s orders are important possibilities for immigration policing. Regrettably, when it comes to key features of the Trump administration’s immigration policing practices, President Biden’s latest announcements are short on anything more than possibilities.
In an easy to overlook segment of his Executive Order on Creating a Comprehensive Regional Framework to Address the Causes of Migration, to Manage Migration Throughout North and Central America, and to Provide Safe and Orderly Processing of Asylum Seekers at the United States Border, President Biden revoked one of President Trump’s early immigration policing executive orders, the January 25, 2017 “border security” order. Paired with an implementing memo issued one month later by then-Secretary of Homeland Security John Kelly, Trump’s order had a significant impact on policing migrants.
Trump’s January 2017 order instructed DHS to expand expedited removal, the legal process enacted in 1996 by which front-line immigration officers can issue removal orders and forcibly remove people from the United States without ever bringing them before an immigration judge. Expedited removal is a disturbing legal mechanism that theoretically allows for some judicial oversight, but in practice it operates entirely outside the view of the federal judiciary and immigration courts.
Because oversight is sparse or non-existent, at times even U.S. citizens suffer from expedited removal’s perfunctory removal process. In 2008, for example, ICE detained Mark Lyttle on the belief that he was a Mexican citizen. Speaking no Spanish and with only $3 in his pockets, he was forced out of the United States. He was “transported to the Mexican border, forced to disembark, and sent off on foot,” a court later wrote. Lyttle, it turns out, was born in North Carolina, making him a U.S. citizen.
Historically, expedited removal had been used against people apprehended within 100 miles of the U.S. border who could not “establish to the satisfaction the immigration officer” that they had been in the United States at least 14 days. This was troubling enough because the border is home to many people who have every entitlement to life in the United States but might find their claims to belonging difficult to prove. Not content to leave this statutory authority focused on the border, in July 2019 the Trump administration announced that it would expand expedited removal to people apprehended anywhere in the United States who couldn’t satisfy an immigration officer that they had been in the country for more than two years.
Advocates sued to stop the administration’s plans, but were ultimately turned back in June 2020 when the U.S. Court of Appeals for the D.C. Circuit concluded that DHS has “sole and unreviewable discretion” to implement expedited removal. In October, ICE announced that it had put the expanded version of expedited removal into action. For many years, expedited removal has resulted in many people being forcibly removed from the United States. In fiscal year 2011, for example, 124,563 people were subjected to expedited removal, 32 percent of the total number of people removed that year. That number grew to as many as 197,603 people in 2013, 46 percent of that year’s total number of removals. Things have remained steady since then. In 2019, for example, 164,296 expedited removals occurred, also 46 percent of that year’s total number of removals.
Yesterday’s executive order by President Biden mandates a review of Trump’s expansion. DHS must consider whether “modifying, revoking, or rescinding” is appropriate. It does not include any instruction to roll back Trump’s expansion. Even if DHS ultimately recommends revocation of Trump’s expansion, the delay built into Biden’s executive order ensures that ICE will continue to have this remarkably broad power to detain and remove people without involving judges. The Trump DHS expanded expedited removal through a formal regulatory process involving notice to the public and the opportunity for public comment on the agency’s proposal. To unwind the expanded expedited removal, should it wish to do so, the Biden DHS would need to follow the same time-consuming process. Typically, that takes many months, even years.
The administration could also add repeal of expedited removal to the immigration legislation it’s expected to release in the coming weeks. So far, the text of that proposal has not been disclosed publicly. A White House fact sheet released on January 20 makes no mention of expedited removal.
Biden’s latest executive order also leaves untouched 287(g) agreements, a key feature of ICE’s policing powers. Through 287(g) agreements, ICE essentially deputizes local law enforcement agents to act as ICE officers. Advocates have long criticized these intensely, claiming that they facilitate racial profiling and ICE provides inadequate oversight. Indeed, in 2011 ICE ended an agreement with Joe Arpaio’s Maricopa County Sherriff’s Office over racial profiling problems. Years later, in 2018, the DHS Inspector General found that problems persist with 287(g) agreements, namely that “ICE cannot be assured [designated immigration officers] in the 287(g) program have the necessary training to be competent and capable of carrying out their delegated duties.”
President Trump’s “border security” executive order that Biden revoked yesterday also launched the prior administration’s support behind a policy of federal collaboration with state and local law enforcement agencies. Trump’s order and Secretary Kelly’s implementing memo put ICE in position to sign 287(g) agreements with willing state, county, and municipal police forces. When Kelly issued his memo on February 20, 2017, there were 32 law enforcement agencies in 16 states participating in 287(g) agreements. By the time Trump left office there were “72 agencies in 21 states participating in one type of 287(g) agreement and 76 agencies in 11 states participating in a second type,” a development I wrote about here.
President Biden’s executive orders say nothing about revisiting existing agreements, which the administration is empowered to do. Similarly, neither Biden nor DHS have announced a plan to stop entering into new 287(g) agreements, a discretionary option well within ICE’s power.