Changes in the Deportation Process

Under the Trump administration, efforts have been made to reduce illegal immigration and speed up the deportation process. Trump issued a number of executive orders regarding the enforcement of immigration laws and border security. The Department of Homeland Security implemented the executive orders and ICE hired an additional 10,000 agents and officials. The goal was to speed up the deportation process and the removal of undocumented immigrants quickly. These immigration policies also gave Immigration and Customs Enforcement less prosecutorial discretion.

What is Expedited Removal?

Expedited removal is the process by which “illegal immigrants” can be removed from the U.S. without having a formal immigration enforcement proceeding before an immigration judge. Current immigration law allows the entire process to occur in as little as twenty-four hours. In the past, expedited removal was only used for individuals who arrived at the U.S. border and made a misrepresentation or false claim about their citizenship and immigration status or did not have valid entry documents. In addition, it also applied to individuals who are caught within 100 miles of the border and have been in the U.S. for 14 days or less.

Under the Trump administration, however, any individual apprehended by immigrant agents, anywhere in the U.S., that cannot prove they have been in the U.S. for at least two years, can be deported without any removal proceedings. The only exceptions are unaccompanied minors, individuals who intend to apply for asylum or who indicate that they fear persecution or torture in their home country and individuals who claim to have lawful immigration status in the U.S.

Under this new immigration policy, many undocumented immigrants may have a pathway to legal status but will not get the chance to speak with an immigration lawyer and find out before they are sent out of the country. Furthermore, the corresponding penalty for expedited removal is a five-year ban from the U.S. This is why we are encouraging every undocumented immigrant to speak with an experienced immigration attorney and see if you have immigration benefits or a pathway to legal status. Until there is major immigration reform, we recommend that individuals who have lived in the U.S. for at least two years to collect documentation that proves how long you have resided in this country. Be careful, however, about the documentation you choose. This documentation should contain your name and the date, but it should not contain any false information – such as a fake social security number, nor should it contain any proof of your alienage or lack of lawful immigration status. This information could potentially be used against you in criminal proceedings or during a removal hearing.

What is Prosecutorial Discretion?

Prosecutorial discretion is giving an agency or law enforcement official power to decide how to charge an individual and if they are charged, how to pursue the case against that person. In immigration, prosecutorial discretion applies to a broad range of decisions, including:

  • whether to issue or cancel a Notice to Appear for immigration court,
  • who to stop, question and arrest, and
  • whom to detain or release.

Immigration officials have the authority to use prosecutorial discretion positively to benefit an individual or negatively to their detriment.

During the Obama Administration, officials prioritized the deportation and removal of undocumented immigrants who had been convicted of serious crimes or who threatened national security. If you’ve never been convicted of a serious crime or threatened national security, you would have benefited from the use of prosecutorial discretion and would not be deported. Recently, however, immigration officers have been instructed to prioritize individuals who are currently identified as high priorities for removal, like those who have committed serious crimes. Moreover, prosecutorial discretion cannot be used to excludes an entire category of individuals from deportation, which means that ICE cannot ignore classes of immigrants who are low priority.

So what is the Department of Homeland Security’s new priority? The Department of Homeland Security now prioritizes all individuals that are:

  • inadmissible to the U.S. on fraud, criminal or national security grounds,
  • have abused any public benefits program (like Medicaid),
  • have been granted a final order of removed but has not departed,
  • charged with or committed any acts that constitute any criminal offense.

As you can see, it’s currently unclear who, if anyone, could benefit from a positive use of prosecutorial discretion. As policies continue to change and the deportation process speeds up, it’s important to consult with an experienced immigration attorney in Tustin to see if you have any options to obtain legal status. The best way to defend against deportation is to read and be proactive.

Contact an Immigration Lawyer Today

Don’t wait until you are in an immigration detention center, facing expulsion from the U.S. by deportation. Contacting one of our experienced Tustin immigration attorneys for a free consultation may be your best chance to avoid being put on the list of deportees. We can help asylum seekers and undocumented workers across the United States. The sooner you contact us, the sooner we can start the process to get you legal U.S. immigration status. Even if you are already facing deportation, we may be able to use a process call cancellation of removal to keep you in the United States. In some cases, we may be able to use immigration appeals and the immigration laws to save your immigrant family member from deportation.