The Trump administration is implementing an unconstitutional deportation process by using unappointed Customs and Border Protection agents to issue expedited removal orders. Through expedited removal, unappointed CBP agents can deport an individual on the basis of a brief, unrecorded inquiry into their immigration status and explanation for being in the United States. If a CBP agent determines, for example, that a noncitizen made a misrepresentation, the agent’s determination is entirely unreviewable.

Expedited removal power is a significant authority that, according to the Constitution’s Appointment Clause, must be exercised by appointed officials. The Constitution’s Appointments Clause requires that government officials who exercise significant authority be appointed to their positions by the President or Department Heads in order to ensure public oversight and accountability. Despite having the tremendous power to unilaterally order noncitizens removed from the U.S., low-level CBP agents are not appointed officers.

“The framers never envisioned that the power to single-handedly expel someone from the U.S. would rest with anyone other than a duly appointed Officer of the United States. The Trump administration’s latest attempt to expand expedited removal underscores the importance of our fight against this unconstitutional grant of power to expel people from the United States.”

– Jeff Dubner, Managing Senior Counsel

The Trump administration’s drastic expansion of CBP agents’ unchecked expedited removal authority has heightened the extreme harm posed to millions of undocumented immigrants, legal residents, and citizens. Even before the expansion, an 18-year-old U.S. citizen was detained for 26 days and nearly deported by CBP agents who falsely believed he was in the U.S. unlawfully. Now, CBP may question and order removed anybody in the country, increasing the risk that similar mistakes will be made in the future and that people of color will be wrongfully detained.

News reportsscholars, and even the U.S. Commission on International Religious Freedom have documented massive flaws in the way unappointed agents implement expedited removal. Most recently, a 2019 study found that 90% of border crossers are not even referred for an asylum interview.

Alongside the National Immigrant Justice Center and Latham & Watkins, we filed a first-of-its-kind lawsuit challenging this unconstitutional expedited removal practice. We filed a habeas corpus petition and complaint on December 4th, 2020 seeking to void the plaintiff’s expedited removal order because it was unlawfully issued by an unappointed CBP agent. We further request that DHS grant our plaintiff an opportunity to have his admissibility into the country decided by an immigration judge.

Jeffrey Dubner

Managing Senior Counsel

Challenging unlawful executive branch actions through a wide range of legal strategies

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