Immigration and Customs Enforcement (ICE) will soon begin processing some undocumented immigrants under new expedited removal rules that greatly expand who can be deported without a hearing before an immigration judge, according to a memo released to agency staff.
In the memo, dated July 24, ICE Acting Director Matthew Albence said the agency’s officers can begin processing expedited removal cases under the new designation on or around Sept. 1, after “appropriate training, oversight, and systems updates.”
Immigration attorneys and advocacy organizations across the country are preparing to provide legal support and educational resources to those who may be impacted by the new rule. The ACLU and the American Immigration Council are also preparing for a hearing on Sept. 6, where a judge will decide whether to temporarily block the rule amid an ongoing lawsuit against the policy.
“Communities are definitely on alert,” says Joyce Noche, legal services director at the Immigrant Defenders Law Center in Los Angeles. “Communities are being much more aware of their rights, and also neighbors are being a lot more protective of people, watching out for one another.”
In late July, the Department of Homeland Security (DHS) published a new rule in the Federal Register that expands the designation of expedited removal. Under that rule, immigrants in the country unlawfully for fewer than 2 years and who are living anywhere in the country’s interior can be fast-tracked through deportation proceedings, even if that means there’s not enough time to make their case before an immigration judge. Previous to the July 23 change, only undocumented immigrants who were caught 100 miles from the border and within two weeks of arriving qualified for expedited removal.
ICE declined TIME’s request for comment about the memo and the implementation of the new designation, and referred TIME to the policy published in the Federal Register.
The new designation also places the burden of proof on immigrants, according to the ICE memo, which was disclosed in court records on Wednesday and is part of the public record. Immigrants facing expedited removal can provide bankbooks, leases, deeds, licenses, bills, receipts, letters, birth records, church records, school records, employment records, tax payments or evidence of prior law enforcement encounters to prove that they’ve resided in the U.S. for at least two years, according to the memo. It also states that if a person can’t provide evidence at the time of an encounter with ICE, they “shall be permitted a brief but reasonable opportunity to obtain it or communicate with a third party to obtain such evidence.”
The memo also states the new removal designation will likely be used by ICE officials during worksite raids and working within the Criminal Alien Program, which partners with local, state and federal law enforcement agencies to detain undocumented immigrants.
The implementation of the new designation comes amid a series of new, and contested, immigration rules. On Aug. 21, the administration announced an end to the Flores Settlement Agreement, which limited the amount of time a child can be kept in immigration custody. On Aug. 12, the administration announced that immigrants who have been utilizing public assistance or might utilize them in the future can be deemed inadmissible, even if they already have legal status in the U.S.
The ACLU and the American Immigration Council filed a federal lawsuit over the new expedited removal rules against DHS secretary Kevin McAleenan and other heads of immigration enforcement agencies on Aug. 6, and filed a motion on Aug. 9 seeking a preliminary injunction while their case is ongoing.
“Already, the policy has created confusion and fear amongst immigrant communities. That existed from the very moment that the rule was announced,” says Anand Balakrishnan, the lead ACLU attorney in the lawsuit against DHS. “I think that is going to continue until the policy is enjoined.”
Across the country, immigration attorneys and advocates worry the expedited removal process might result in deportation before undocumented immigrants have a chance to access council or contact their family.
Kara Hartzler, a federal defender in San Diego who works on illegal reentry cases, says she’s concerned mistakes will be made in the implementation of the new policy. Hartzler says attorneys like her are preparing legal arguments because they expect reentry into the U.S. to increase as the new designation is implemented.
“Expedited removal is already a very truncated, streamlined process where very important decisions are made by Border Patrol agents with little training in the law and they are very overworked,” she tells TIME. “Mistakes are made … I’m very concerned that some of the errors, some of the things that happen as a result of the nature of expedited removal, are just going to be multiplied thousands of times across the country and lead to a lot of wrongful removals.”
In Texas, attorneys at the Houston Immigration Legal Services Collaborative are expecting an increase in calls to their legal services hotline and are calling their clients to inform them of the new designation and how to be prepared. Julie Pasch, managing attorney for Deportation Defense Houston, tells TIME that she believes wider groups of immigrants could be targeted.
“I think that ‘don’t worry, this is only going to be focused on a certain subsection of our neighbors’ … is not correct,” she says. “It’s going to affect all of us.”
Noche tells TIME that the Immigrant Defenders Law Center is also preparing for an influx of calls. She adds that attorneys and immigrant advocates in Los Angeles have been hosting community forums to discuss expedited removal in the weeks since the new rule was announced.
“We’ve been trying to explain to folks what their rights are and also on our end preparing for a higher volume of calls than what we typically would see,” Noche says. “We have seen this already with past announcements by the administration to expand or to do large-scale enforcement. We’ve been through it so we’re prepared and ready to confront what will happen post September 1.”
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