Since 2004, the agency has been authorized to bypass immigration courts only for immigrants who had been living in the country illegally for less than two weeks and were apprehended within 100 miles of the border.
Under the proposal, the agency would be empowered to seek the expedited removal of illegal immigrants apprehended anywhere in the United States who cannot prove they have lived in the country continuously for more than 90 days, according to a 13-page internal agency memo obtained by The Washington Post.
The new guidelines, if enacted, would represent a major expansion of the agency’s authority to speed up deportations under President Trump, who has made border security a top priority.
Two administration officials confirmed that the proposed new policy, which would not require congressional approval, is under review. The memo was circulated at the White House in May, and DHS is reviewing comments on the document from the Office of Management and Budget, according to one administration official familiar with the process who spoke on the condition of anonymity.
Joanne F. Talbot, a DHS spokeswoman, said she had not seen the memo. She described it as a draft and emphasized that no final decisions have been made by Homeland Security Secretary John F. Kelly.
“The potential changes would allow DHS to more efficiently use resources to remove persons who have been illegally present for relatively brief periods of time while still observing due-process requirements,” Talbot said.
Immigrant rights advocates denounced the proposed expansion of the expedited deportation authority, warning that the policy would strip more immigrants of due-process rights to seek asylum or other legal protections that would allow them to remain in the country.
“This is a radical departure from current policy and practice, which takes one giant step towards implementing Trump’s deportation force across the nation,” said Marielena Hincapié, executive director of the National Immigration Law Center.
DHS officials disputed such characterizations, saying that the new policy would simply allow the agency to take advantage of its discretion that has been permitted under federal law for more than two decades.
In 1996, Congress authorized the use of expedited deportations for illegal immigrants apprehended anywhere in the country who could not prove they had been physically present in the country two years before their apprehension. The powers were used almost exclusively at the border, however, and in 2004 the George W. Bush administration issued guidelines stipulating that the expedited removals could be used for those apprehended within 100 miles of the border who had lived in the country fewer than 14 days.
The use of expedited removals rose substantially in the decade after the administration implemented its guidelines, spiking from about 50,000 immigrants in 2004 to 193,000 in 2013 — about 44 percent of the total number of people deported that year, according to the American Immigration Council.
In a pair of immigration executive orders signed in January, Trump sought to expand the use of expedited deportations, as one of several strategies to crack down on illegal immigration. Trump also has called for an additional 10,000 immigration agents and 5,000 border agents, penalties for sanctuary jurisdictions that refuse to cooperate with immigration agents, a “big, beautiful” wall along the U.S.-Mexico border and dozens of new immigration judges to slash the immigration court’s backlog of roughly 600,000 cases.
Trump has also lifted the Obama-era restrictions that shielded millions of undocumented immigrants from deportation if they had no criminal histories or were the parents of American-citizen children. Now, immigration agents are free to arrest anyone who is in the United States illegally.
In May, U.S. Immigration and Customs Enforcement said it was arresting more than 400 immigrants a day. In the president’s first three months in office, ICE arrested 41,318 immigrants, up 37.6 percent over the same period last year. Most had criminal records, but the largest increase was among immigrants with no records at all.
The internal DHS memo states that the expanded authority for expedited removals “will enhance national security and public safety” by alleviating the “historic backlogs” at the nation’s immigration courts that have led to delays in hearings for more than two years. At the start of this year, there were more than 534,000 removal cases pending in immigration courts, according to the memo.
That is compared with a total of 168,000 cases in 2004, when the Bush-era guidelines were implemented. President Barack Obama’s administration maintained those guidelines.
The Trump administration’s proposed new policy would “eliminate incentives not only to enter the country unlawfully but also to attempt to quickly travel into the interior of the United States in an effort to avoid the application of expedited removal,” the memo states.
Unaccompanied minors are not currently subject to expedited deportations, nor would they be under the new guidelines that are under review, officials said.
One Trump administration official involved in the internal deliberations said the new policy would have a “deterrent effect” on immigrants who are considering entering the country illegally or overstaying their visas. This official, who spoke on condition of anonymity because no final decisions have been made, said immigrant rights groups take advantage of existing laws to try to drag out court proceedings “as long as possible.”
“Anyone who is surprised that the administration is considering lawfully expanding the use of expedited removal has not been paying attention,” Talbot said. “The expansion you describe is explicitly allowed” under federal law.
According to the DHS memo, those immigrants placed into the expedited deportation process under the new guidelines would still be afforded the opportunity to claim a credible fear of persecution or torture and to be interviewed by an asylum officer under those circumstances, who would determine whether the fear is credible. If credible fear is found, that person would be referred to an immigration judge for further consideration of their case, just as they are now, the memo states.
Immigrant rights advocates said that federal authorities have abused the expedited removals process and that border authorities do not always grant apprehended immigrants their rights to seek legal protections.
An expansion of the expedited removals process would be “a recipe for disaster,” said Lee Gelernt, the deputy director of the American Civil Liberties Union’s Immigrants Rights Project.
“If you have to give people genuine due process, you can’t just move people out of the country with the snap of your fingers,” Gelernt said. “But once you start instituting summary removal processes all over the country, then you can start seeing mass deportations.”
“Right now, someone apprehended in St. Louis would be entitled to a full hearing,” he said. “With expedited removal, you pick a person up, and they could be gone immediately.”
The potential changes come as the number of immigrants crossing the U.S.-Mexico border illegally has fallen sharply since Trump took office, a shift that administration officials have credited to immigrant fears of harsher Trump policies.
Yet the DHS memo cites figures from last fall, when the level of illegal border crossings was much higher, to make the case that the agency’s resources have been strained, creating “unacceptable national security and public safety vulnerabilities.”