“Expedited removal” won’t fix asylum

But it could open the door for unrelated bad Trump stuff in the future

The White House and congressional negotiators continue to circle around a major deal featuring military aid to Israel and Ukraine, humanitarian aid for Gaza, supplemental funding for border security, and some kind of substantive restrictionist changes to immigration policy. 

Many ideas are in the mix, and it seems clear that Democrats will have to make significant concessions somewhere if they want reluctant Republicans to pony up the money. Meanwhile, the Biden administration itself agrees with Republicans that too many people are crossing the southern border without legal status, so one school of thought holds Democrats would benefit from being forced to make concessions here if they had confidence it would keep unauthorized border crossings lower through 2024. 

Amidst this sea of moving parts and potential deals, Reuters has reported that “another possible point of agreement could be expanding a fast-track deportation process known as ‘expedited removal.’”  

It’s important to understand what this actually means: People arriving at the southern border are already eligible for expedited removal, so “expanding” it, in this context, doesn’t mean using it in a larger share of border apprehension cases. It means enlarging the geographical zone in which it can be applied legally. That has no implications for short-term border security, or the handling of new asylum cases, and will in no way alleviate the logistical burdens the administration is wrestling with. But it could put a future Trump administration closer to its goal of implementing mass deportations of millions of long-resident unauthorized immigrants who’ve been living and working in the United States for years.  

Expedited removal, explained

On a basic linguistic level, the idea of removing people more expeditiously has an obvious appeal to anyone worried about unauthorized border crossings. But in legal terms, expedited removal has a specific meaning. Normally, before a person can be deported, he is entitled to a hearing in immigration court. At a hearing, an immigrant can claim that they qualify for one of a handful of forms of legal status that can be directly ordered by a judge. Importantly, as part of the government's case, it has to establish that the person is, in fact, violating U.S. immigration law. You can’t tell who is a citizen and who has a valid visa just by glancing at them, so a normal deportation process involves procedural checks. 

Expedited removal is a path created by Congress in 1996, as part of a larger immigration crackdown, to allow for removals without those procedural checks. The law wanted, for example, to stop people without visas from flying into U.S. airports, invoking their right to asylum, and automatically staying for months or years regardless of the merits of their case. 

The statute allows the federal government (pursuant to regulation) to use expedited removal on anyone apprehended within two years of arriving without papers in the United States. But no administration has invoked its power to the full extent. In general, presidents have preferred to limit its use to cases where someone has plausibly just entered the United States. The existing regulation allows expedited removal to be used for people apprehended within 100 miles of a U.S. land or sea border (an expansive zone including Chicago, Houston, the entire state of Florida, and every major northeast corridor and west coast city), and within 14 days of arriving in the country. 

Right now, most of the people who arrive in the United States without legal status and present themselves to CBP agents aren’t put into expedited removal proceedings — they’re simply placed into the normal immigration court process. Given how long the immigration court backlog is right now, that means it can be years before someone with a weak asylum case is found ineligible. In the meantime, they’re moving to U.S. cities in the interior (New York, Chicago, etc.), sometimes without a support network, often without a place to stay, and usually without the ability to earn a living legally for months or longer. This substantive crisis creates a political crisis: policymakers worry that anything done to alleviate the practical problems of asylum-seekers only encourages more weak claimants to come and further exacerbates the backlog.

But even though handling these cases more expeditiously seems appealing, expanding expedited removal doesn’t address the issue.

Nothing about the current situation is caused by unauthorized border crossers making it 100 miles into the interior and then becoming ineligible for expedited removal. The overwhelming majority of asylum claimants are eligible for expedited removal under current policy. The process mostly isn’t used, even though it is legally available, due to cost benefit analysis of expedited removal versus standard proceedings. Because expedited removal doesn’t mean automatic removal.

You still need asylum officers

When the 1996 law was being discussed, the prospect of “summary deportation” raised a lot of concerns about due process and about the United States’ humanitarian obligation. So Congress created a way for people placed in expedited removal proceedings who asked for protection to get a preliminary screening from an asylum officer to determine whether their case was valid enough to be heard by a judge. If they passed that test, known as a “credible fear” interview, they’d be taken out of expedited removal proceedings and put into the immigration-court queue. If they failed, they could ask an immigration judge to review the case and would be deported if the judge agreed with the asylum officer.

The “credible fear” standard to enter an asylum claim is now seen as a key weakness of the system by both immigration hawks and moderates, who contrast a slightly-exaggerated “90 percent” passage rate with various stats about the ultimate approval rates of asylum claims in court. (I steer clear of this family of statistic because asylum grant rates vary wildly by nationality, among other factors, and the composition of people coming to the U.S. now and getting screening interviews is different from that of the people who arrived several years ago and are finally getting their cases resolved.) There appears to be bipartisan consensus on raising that standard to a “reasonable fear” standard; "reasonable fear" has traditionally been used for people who didn’t qualify for asylum for various reasons but might still need humanitarian protection, but which is now being used generally on asylum-seekers who crossed into the U.S. between ports of entry, thanks to a temporary regulation the Biden administration enacted this spring. It has not, to state the obvious, reduced border numbers enough to prevent elected officials from feeling these negotiations need to happen.

So you need asylum officers to conduct those interviews, and you need somewhere to hold the migrants until they can be interviewed — and, often, until they’ve gotten judicial review of a rejection.

In the past, these constraints have created huge backups whenever border apprehensions rise beyond the level of existing border infrastructure, resulting in pictures of horrific overcrowding and, at worst, deaths of migrants (including children) in U.S. custody because they were being held in a place with inadequate access to medical care. The Biden administration is avoiding that problem by releasing most people into regular immigration court proceedings, rather than trying to get them through expedited removal first. 

Any effort to fix the capacity problem would probably require Congressional override of the Flores agreement that severely constrains the federal government's ability to hold children and families in immigration custody for sustained periods. It would definitely require enormous spending. 

Removing a roadblock to mass deportations

While having minimal impact on new asylum claims, expanding expedited removal would have significant impact on people who have been in the United States for a long time and are settled in American communities. This is the population who’ve been the subject of on-and-off discussions about a “path to citizenship” for unauthorized immigrants since at least George W. Bush’s administration, with most Democrats and some Republicans arguing that large-scale removals of millions of longtime residents would be impractical and economically disruptive.

Even as the Biden administration has expressed alarm about new border crossings, they’ve shown very little interest in increasing deportations of longtime residents. Interior enforcement tends to get de-emphasized when border apprehensions are this high, because of resource constraints, and both the COVID pandemic and Biden-issued guidelines on ICE arrests and prosecutions have further depressed the phenomenon. But a future president could feel differently. Indeed, Donald Trump has shown great interest in deporting a million people a year; his advisers have drawn up plans for mass roundups and open-air detention camps to hold those people.

Most of the obstacles to this plan come from the need for legislative branch buy-in in the form of enormously inflated spending on immigration enforcement. But current law does very little to constrain mass deportation. The biggest statutory obstacle is the requirement for most unauthorized immigrants to receive court hearings, which both slows down the timeline on which any given immigrant could get deported, and requires an additional expenditure from Congress on immigration courts (under DOJ) to deport large numbers of people through normal means.

Remove that obstacle, and you reduce the Congressional price tag associated with mass deportation substantially. You also make it feasible to take people from American neighborhoods to one-way planes in a matter of days. Not only would they not have the chance to seek forms of legal status that U.S. law allows them — both because of potential persecution if they’re returned and because of the hardship to, say, their U.S. citizen children — but they wouldn’t have the chance to establish that they are actually here legally. Immigration and citizenship law is more complicated than most people assume, and U.S. citizens do get deported on occasion!

If the Biden administration issues a new regulation that expands expedited removal within current statutory limits, it doesn’t remove the obstacle to mass deportation — but it does save a future administration the year or two it takes to issue a new regulation that complies with the Administrative Procedure Act. And simply expanding expedited removal to the extent allowed by statute opens the door to deporting long-resident immigrants. After all, it’s hard for someone who’s just been arrested by ICE to prove that they’ve been in the U.S. more than two years.

This isn’t something elected officials are likely to acknowledge: Democrats don’t want to acknowledge Biden might lose in 2024, and Republicans in Congress don’t seem enthusiastic talking about what Trump might do in 2025. But it’s generally considered a bad move for an incumbent to do something that doesn’t solve his own problem but does solve his opponents’.

Without funding, legal strictures are meaningless; with funding, legal strictures are irrelevant

Right now, even with the raised standard for passing a screening interview, passage rates haven’t dropped that much. It would be reasonable to extrapolate from that: Making this change permanent would still result in a lot of people screening their way out of expedited removal.

It’s possible that this extrapolation might not be valid, because it’s possible that the majority of people who are just getting released into the court backlog would have weaker cases than the few thousand people a month who are getting screened. In that case, maybe screening everyone would result in more people getting deported quickly (though it’s not obvious that reducing passage rates to below 60 percent would deter people from trying to come). But to do that, you need to fund hiring of a bunch more asylum officers.

Once you’ve done that, you can get higher throughput without changing existing law. If you change existing law and don’t do that, you don’t get higher throughput.

Elected officials really don’t want to believe that more funding is the answer. To a certain extent, this is understandable, given how often presidents have come to Congress needing supplemental border funding over the last decade (and that funding has generally gone to temporary response rather than building capacity or infrastructure). But it also stems from the conviction that there is a Right Answer that will make deterrence work, a cheat code that will send the message to would-be border-crossers that they shouldn’t even bother to try.

We know how this movie goes because this has happened twice in 2023 alone. The US makes a policy change that erects or raises obstacles to staying in the US. Border apprehensions drop for a few weeks while people wait to see how the new policy goes, and the administration takes a victory lap. Then, once word of mouth establishes that at least some people are still going through, numbers start to rise again.

I get it. If I were a member of Congress, I would really want to be able to go home and tell constituents I passed legislation to fix the border — not to tell them I voted for a bunch more money to hire asylum officers. But doing something just to say you did it only helps you during this recess. It doesn’t help you the next time apprehensions rise, and you find yourself having to make yet more concessions, and opening more doors to a hypothetical future deporter-in-chief.