WASHINGTON (CN) — The Trump administration faces a federal lawsuit filed Wednesday for a new Department of Homeland Security policy that immigrant advocacy groups say will expand “fast-track deportations” and deny them due process.
The American Civil Liberties Union, joined by Make the Road New York, filed the suit in the U.S. District Court for the District of Columbia and asked a federal judge to declare the policy unconstitutional, vacate it and block any similar effort.
The policy, which went into effect Tuesday evening, reinstates a 2019 notice that aimed to empower the department to deport undocumented immigrants who cannot prove they have been within the United States for two years or longer and are within 100 miles of the border.
Anand Balakrishnan, senior staff attorney at the ACLU’s Immigrants’ Rights Project and lead counsel in the case, decried the move, saying it would unconstitutionally separate and expel people across the country without providing them any legal recourse.
“The Trump administration wants to use this illegal policy to fuel its mass deportation agenda and rip communities apart,“ Balakrishnan said in a statement. “Expanding expedited removal would give Trump a cheat code to circumvent due process and the Constitution, and we are here to fight it.”
According to the ACLU, the expedited removal process allows an immigration officer to determine whether a migrant is “inadmissible” if they lack the proper entry documents and order, and with a supervisor’s approval, to remove an individual without a hearing. Once an officer makes that determination, removal can occur within 24 hours.
“Defendants are aware of the flaws in the expedited removal and credible fear processes, including the lack of procedural protections. Nevertheless, Defendants have acted to expand a systematically deficient process to an even larger category of individuals, without taking steps to address these well-documented problems,” the ACLU and Make the Road say in their suit.
Only in cases where the individual claims asylum and shows they have reason to fear removal to their country of origin does additional screening become available, but those screenings are much less formal than an official removal proceeding before an immigration judge.
The 2019 notice was similarly challenged in federal court, where now-Supreme Court Justice Ketanji Brown Jackson temporarily blocked the rule before a D.C. Circuit panel reversed and vacated the injunction in 2020.
Following the heights of the Covid-19 pandemic and former President Joe Biden’s executive order in February 2021 ordering a review of the 2019 notice, the rule was ultimately rescinded in March 2022.
The U.S. Supreme Court has held that anyone residing within the United States, including undocumented immigrants, are recognized as “persons” guaranteed due process of the law under the Fifth and 14th Amendments.
Since 1903, the Supreme Court has extended Constitutional protections to immigrants, documented and not, finding that they cannot be removed from the country without proper due process.
Only recently has the Supreme Court sought to limit the reach of such protections, ruling in the 2020 case United States v. Verdugo-Urquidez that the protections may depend on whether an undocumented immigrant has developed “substantial ties” to the country.
Arlenis Morel, co-executive director of Make the Road New York, condemned the Tuesday rule as going against one of America’s core tenets.
“To fast track the deportation of people who have entered this country to find safety and build a life for themselves and their families, without even a chance to see a judge, will only sow fear in immigrant communities and increase the terror of being separated from loved ones forever,” Morel said in the statement.
The lawsuit comes as Trump has made broad moves to overhaul the immigration process, including the firing of the acting head of the U.S. immigration court system and three other top officials, the sudden shut-down of the CBP One app and the dispatch of 1,500 active-duty troops to the southern border.
Trump also instructed Border Patrol agents to deny entry to asylum seekers as they pass through countries where communicable diseases are present, per a Washington Post report Wednesday that obtained a U.S. Customs and Border Protection briefing document. The order does not list any such diseases and effectively closes the border to anyone seeking asylum.
Lawmakers in Congress have moved in conjunction with Trump on the issue, passing the controversial Laken Riley Act, which empowers the U.S. Immigration and Customs Enforcement to detain people in the U.S. illegally and are arrested or charged with “theft-related” crimes like shoplifting or burglary.
The statute also includes a provision empowering state attorneys general to sue the federal government over its adherence to immigration law.
DHS declined to comment for this story.