A federal appeals court panel in Washington appeared ready Friday to allow the Trump administration’s expansion of a fast-track deportation process to a broader swath of immigrants who illegally entered the United States.
At oral argument, a three-judge panel of the U.S. Court of Appeals for the District of Columbia Circuit aired skepticism that the Department of Homeland Security needs to go through the federal rulemaking process before it makes the change. The panel will issue a ruling at a later date.
The expansion, announced in July, redefined which immigrants could be put in the expedited process that allows for rapid deportation without a full hearing. Since 2004, immigrants encountered within 100 miles of a land border or within 14 days of an illegal crossing could be deported quickly.
DHS expanded that to immigrants encountered anywhere in the United States within two years of illegally crossing the border — citing in part the historic backlog of removal cases of 900,000 at that time.
A district court judge sided with a trio of immigrant rights groups and stopped the expansion nationwide in September, finding in part that Congress did not intend to give so much discretion to DHS that the agency wouldn’t have to go through the rulemaking process.
But the D.C. Circuit panel on Friday seemed ready to side with the Trump administration, who argued the law gives the DHS secretary the “sole and unreviewable discretion” over the process, and the ability to modify it at any time, so the agency doesn’t have to go through rule-making procedures.
“That means the decision maker gets to make the decision without anyone’s advice and consent,” Scott Stewart of the Justice Department said.
Judge Harry T. Edwards said he couldn’t think of another law in his 40 years on the bench that made it so clear that a government decision could not be challenged in a lawsuit.
Edwards said the federal government has a long history of not going through the rule-making process when it came to the expedited removal process first created in 1996. The government has twice expanded the scope of the process.
“They’ve never called it a rule. They’ve always made it clear, it’s not a rule. And if it’s not a rule, you presumably don’t have to use notice-and-comment rulemaking,” Edwards said.
And Judge Neomi Rao questioned an argument from the attorney for the immigrant rights groups that DHS must go through the rulemaking process even if it ultimately doesn’t consider any public comments in its decision.
“That suggests there’s almost nothing to notice-and-comment at all,” Rao said.
Anand Balakrishnan, arguing on behalf of Make the Road New York, La Union Del Pueblo Entero and WeCount!, said that the process “might not be the best check” but it would ensure a modicum of good rulemaking.
“This is a check on the agency from doing whatever it wants,” Balakrishnan told the panel.
The three plaintiffs say the expansion is a “dramatic change” to removal procedures and immigration law, and hundreds of thousands of noncitizens with substantial connections to the United States won’t have a full hearing on whether they will be deported from their families and homes.
The removal could happen in a matter of days, or in some cases hours, the group said.