Trump Administration’s Expansion of Expedited Removal Heightens Longstanding Concerns About Unchecked Power of Unappointed CBP Agents
First-of-Its-Kind Suit Filed Challenging CBP’s Expedited Removal Policy
Washington, D.C. — The Trump administration was sued for unlawfully permitting low-level, unappointed Customs and Border Protection (CBP) employees to unilaterally order noncitizens removed without a hearing or judicial review. The lawsuit alleges that removal orders issued by unappointed CBP agents violate the Constitution’s Appointments Clause, which requires that government officials who exercise “significant authority” be appointed to their positions by the president or cabinet secretaries in order to ensure public oversight and accountability. The petitioner — an unlawfully deported traveler who was detained at O’Hare International Airport despite having been issued a visa by the State Department — is represented by Democracy Forward, the National Immigrant Justice Center (NIJC), and Latham & Watkins LLP.
The Trump administration exponentially expanded the unconstitutional use of expedited removal in 2019 by giving CBP agents the authority to issue removal orders nationwide and against noncitizens who have lived in the U.S. for as long as two years. Under prior Department of Homeland Security (DHS) policy, CBP agents could issue these unconstitutional orders only within 100 miles of the U.S. border and within 14 days after a person’s arrival. The Trump administration’s expansion of expedited removal — which is being challenged in separate litigation but went into effect this October — puts the lives of millions of undocumented immigrants, legal residents, and citizens into the hands of unappointed and unaccountable CBP agents.
“The framers never envisioned that the power to single-handedly expel someone from the U.S. would rest in the hands of anyone other than a duly appointed Officer of the United States,” said Democracy Forward Managing Senior Counsel Jeffrey Dubner. “The Trump administration’s expansion of expedited removal underscores the importance of our fight against this unconstitutional grant of power to expel people from the United States.”
“The Trump administration’s unlawful tactics to prevent immigrants and travelers from entering the United States, including expanding expedited removal nationwide, have separated thousands of families and put livelihoods at risk,” said Mark Fleming, NIJC associate director of litigation. “The Appointments Clause was designed as one of a number of constitutional checks to hold the Executive Branch accountable and prevent abuses of power like that which has upended so many immigrants’ lives.”
The petitioner in this case is a sustainable agriculture entrepreneur who runs a foundation and consults for farmers in his home country. He came to the United States on a B-1 business visa to learn about the latest sustainable agricultural practices in 2019 and sought to do so again in 2020. But despite having been issued a visa by an appointed Foreign Service Officer, he was detained on erroneous grounds by an unappointed CBP agent, had his visa revoked, and was then expelled from the country — all without any opportunity for judicial review of the agent’s legally and factually incorrect conclusions.
Expedited removal orders are largely unreviewable by appointed DHS officers or federal courts. Through expedited removal, unappointed CBP agents can inquire into any person’s immigration status and explanation for being in the United States. If the CBP agent believes that the person is an inadmissible alien who has been in the United States less than two years, they can issue a fast-track order and detain the person until it is resolved or the person is removed. Even if the CBP agent’s order was plainly erroneous, the agent’s determination is entirely unreviewable in most circumstances. No constitutionally appointed Officer plays any role in the adjudication, and only limited portions are reviewable by a judge. DHS expels more than 100,000 people a year through this unconstitutional process.
News reports, scholars, and even the U.S. Commission on International Religious Freedom have all documented massive flaws in the way unappointed agents implement expedited removal.
The suit was filed on December 7, 2020, in the United States District Court for the District of Columbia. Read the petition for a writ of habeas corpus and complaint in full here.
Democracy Forward is a nonprofit legal organization that scrutinizes Executive Branch activity across policy areas, represents clients in litigation to challenge unlawful actions, and educates the public when the White House or federal agencies break the law.
The National Immigrant Justice Center is a nongovernmental organization dedicated to ensuring human rights protections and access to justice for all immigrants, refugees, and asylum seekers through a unique combination of direct services, policy reform, impact litigation, and public education.
Latham & Watkins delivers innovative solutions to complex legal and business challenges around the world. From a global platform, our lawyers advise clients on market-shaping transactions, high-stakes litigation and trials, and sophisticated regulatory matters. Latham is one of the world’s largest providers of pro bono services, steadfastly supports initiatives designed to advance diversity within the firm and the legal profession, and is committed to exploring and promoting environmental sustainability.
Tara Tidwell Cullen
National Immigrant Justice Center
Latham & Watkins