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Attorney General William Tong

08/22/2019

ATTORNEY GENERAL TONG CHALLENGES TRUMP ADMINISTRATION EXPEDITED REMOVAL RULE TO UNLAWFULLY DENY IMMIGRANTS DUE PROCESS

Cruel and Unnecessary Rule Risks Deportation of Lawful Residents

Attorney General William Tong today joined a coalition of attorneys general, led by California, in opposing the Trump Administration’s new rule vastly expanding 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 an amicus brief before the U.S. District Court for the District of Columbia, the attorneys general urge 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.

"Denying due process to people facing deportation, including access to a lawyer and a hearing before a judge, flies in the face of everything this country stands for. We have already read reports around the country of citizens — including children — swept up in raids, detained for hours or days under threat of deportation. Due process protections are in place for a reason — to ensure that our government does not erroneously take the enormous step of deportation without being absolutely sure we have the right and a reason to do so. This rule is cruel, unnecessary and unlawful and I join with attorneys general across the nation in asking that it be blocked," said Attorney General Tong.

Under the rule, the Trump Administration is expanding the use of expedited removals 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 access to 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 U.S. 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 living anywhere in the U.S. if the individuals cannot establish, to the satisfaction of a rank and file immigration officer that they have continuously resided in the country for two years.

The rule also lacks a clear legal standard. As a result, immigration officials could impose an inconsistent and unclear burden of proof on individuals living in the country, resulting 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 mistakenly subjected to deportation.

In the brief, the attorneys general note that the policy will inflict serious harm on the states’ families and communities. For instance, mixed-status households with both lawful and undocumented residents may be torn apart with little or no time to prepare, seek legal representation, or assert valid legal defenses to removal.

According to mental health professionals, 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 amicus brief, Attorney General Tong joined the Attorneys General of California, Delaware, Hawai’i, Illinois, Maryland, Massachusetts, Michigan, Minnesota, Nevada, New Jersey, New Mexico, New York, Oregon, Vermont, Virginia, Washington, and the District of Columbia.

A copy of the brief is available here.
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