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Attorney General William Tong

09/24/2019

ATTORNEY GENERAL TONG OPPOSES TRUMP ADMINISTRATION RULE THAT RISKS DEPORTATION OF LAWFUL RESIDENTS

Attorney General William Tong today joined a coalition of attorneys general in issuing comments formally opposing the Trump Administration’s new rule that vastly expands the use of expedited removal. Under the new rule, the U.S. Department of Homeland Security is authorized to deport certain individuals living anywhere in the United States without the due process protections afforded in normal removal proceedings, such as the right to an attorney or a hearing before a judge.

In a comment letter, the attorneys general urge the U.S. Department of Homeland Security to rescind the rule, which was issued without advance notice or opportunity for public comment.

"Due process exists for a reason, to provide protections for each and every one of us against government error and overreach. Deportation is a severe and serious step—separating individuals from their families, careers and communities. Denying those facing deportation access to a lawyer and a hearing before a judge is a reckless risk guaranteed to cause needless trauma and suffering," said Attorney General Tong.

Under the rule, the Trump Administration is expanding the use of expedited removal to allow federal officials to deport undocumented immigrants from anywhere in the United States under a fast-tracked process that generally does not allow for access to legal representation, witnesses, or a meaningful opportunity to present evidence and defenses. The rule significantly increases the risk that people will be erroneously deported and, for those caught up in the proceedings, virtually eliminates the protections afforded during formal immigration hearings.

In 2004, the federal government extended the use of expedited removal to include undocumented individuals who were apprehended within 14 days of arrival in the United States by land and within 100 miles of any land border. Now, the U.S. Department of Homeland Security is allowing expedited removal proceedings to be used to deport undocumented immigrants apprehended anywhere in the United States if the individuals cannot establish, to the satisfaction of a line-level immigration officer, that they have continuously resided in the country for two years. Because the rule also lacks a clear legal standard, immigration officials may impose an inconsistent or unclear burden of proof on individuals who have been detained. Despite the great potential for error in this process, it results in final deportation orders that are not generally subject to judicial review. Lawful residents, U.S. citizens, asylees, or other individuals with legal protections that enable them to remain in the country could be, and have been, mistakenly subjected to deportation.

In the comment letter, the attorneys general note that the policy will inflict serious harm on the families and communities in the states. For instance, mixed-status households with both lawful and undocumented residents may be torn apart with little or no time to prepare or seek legal representation. The prospect of sudden and unexpected separation can cause children to experience serious mental health problems, including depression and anxiety. This can manifest in physical symptoms in children such as persistent stomachaches and headaches, refusing to eat, pulling out their hair, engaging in substance abuse, and losing interest in daily activities. These harms are worsened when fears of forcible family separation come true. In addition, because of the rule, immigrants may be even less likely to report crime or exploitation or seek needed medical care, negatively affecting public safety and health.

In filing the comment letter, Attorney General Tong joins the attorneys general of California, Delaware, Hawai’i, Illinois, Iowa, Maine, Maryland, Massachusetts, Michigan, Minnesota, Nevada, New Jersey, New Mexico, New York, Oregon, Pennsylvania, Vermont, Washington, and the District of Columbia.

A copy of the comment letter is available here.

Attorneys general are also fighting the action in court. In August, Attorney General Tong joined a coalition filing an amicus brief before the U.S. District Court for the District of Columbia. The brief urges the court to grant a preliminary injunction to halt the implementation of the rule, which was issued without advance notice or opportunity for public comment. That matter remains pending and no decision has been issued.

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