Judge Questions ’Ouija Board’ Process for Rapid Deportation

miners using AWGI board? That's what a DC federal judge asked government lawyers during a hearing over whether she should block the new measure joining us as Rick, Suprofessor of Law at the University of North Carolina School of Law. So Rick, these new procedures were announced without notice or public comment back in July, but they haven't been enforced yet.

What are the basics? So essentially, what it does is expand something called expedited removal and expedity removal of the process by which a immigrant can be removed from the country essentially without ever seeing an immigration judge. It makes the process very fast. A low level immigration officer can make the determination all themselves and actually can expodite the removal. It can happen within a day, so it greatly speeds

up the process and raises the risk for error. You have a mid level immigration officer making the decision, you have no hearing. Are their due process concerns? Is that what the immigration advocates were complaining about. Yeah, there's two

concerns at play. One is due process, which is sort of important in this particular case because actually the particular provision that the Trump administration wants to do, which is, anyone in the country that can't show that they've been in the country for two years and anywhere in the country would be subject to this. And this raises constitution concerns because constitution applies to everyone that's within the United States.

But the second concern, which is what you raise in the lead, has to do with how this particular regulation was put into place and essentially without notice and comment and without a lot of good explanation for why the administration needs it. The judge seemed to be concerned that this just may violate how an agency on or the

president puts out policies and procedures. Did the judge give anything away about her ruling when she told the government lawyers that, however, the government had arrived at the rule even if by dart board or Wigi board. It wasn't allowed to implement the policy without warning. Yeah, so there seems to be two things at play, especially the comments about the wigi board and the dart board. This echoes some of the other litigation which regards executive orders have

been put out really fast. Judges have expressed concerns that they haven't been exactly thought out. There hasn't been a good explanations given. And although there's a lot of discretion in the president, that discretion has to be within the context of serving the particular task as opposed to just sort of reckless or sort of willful, you know, sort

of decision that they're making on the fly. So this seems to be echoing some of that here, and it could be that is how how the judge is going to decide the other aspects with regard to giving notice. This really applies to a lot of policy has been put into place and being kind of hidden. The separation of children have been going on for months before the administration even knowledge that I was happy, and there seems

to be concerned that administration might try that again. What was the basic argument from the Justice Department lawyers about this rule and why they felt it was valid. Yeah, so they certainly defended on the merits by saying that the attorney General in this case, the secretary to helmelet security, has a discretion to sort of just implement these rules

without notice and comment. But there was also the strange argument that we're making that they can't really challenge the regulation until they start enforcing it, but wouldn't tell the judge when they would start enforcing it, which I think really raise the suspicion of the judge not to mention when expedity removal actually happens. Because it happened so fast, it may be that when it does happen, those people

won't be able to challenge it. So there's a lot of concerns about exactly how they're trying to implement this. Let's talk about how this would play out on on the ground, so to speak, because they have to immediately show that they've been here for two years, and if someone is even a US citizen but is not being paid a wage weekly and perhaps he's living with someone else,

that might be difficult to prove. Yeah, this is really this is a big concern, especially the United States in which most of us actually don't have the documents to prove that we're legally here or that we've been here for a certain number of years, certainly not documents we

carry with us in our wallet. And essentially what this does is puts the burden on whoever an immigration official confronts to show to the satisfication of this officer that they've been in the United States for two years, or they could be put into this sort of limbo zone in which they don't have a lot of du process and a determination about their missibility or the removals made immediately.

So I think it does raise a lot of concerns about false positives, and it's just we don't have these documents on us all the time, and there's no way to review what these individual officers are going to decide. In fact, they're saying that they are completely nonreviewable once

the decision is made. It's hard to keep track of all the immigration lawsuits, and last week they are actually two advocacy groups filed a federal lawsuit challenging legitimacy of the acting US Citizenship and Immigration Services Director Ken Cucinelli to issue a set of asylum directives at the agency tell us what this is about. Yeah, so there's there

are two parts of that. One has to do with Ken Katinelli himself and whether he has an authority to do so, but more importantly has to do with the

substance of that asylum directive. And again it's part of the broader sort of effort by the Trump administration to foreclosed opportunities for individuals to claim essentially they're legal right under the law, but by using the process and speeding it up and putting up different criterias and conditions like this one saying that they wouldn't be able to apply if they've gone through any other countries and didn't apply

for asylum there, that they wouldn't be applied at all. Essentially, they seemed to be going towards a procedural way of blocking these claims as it's supposed to just adjudicating the claims or getting Congress to change the laws. Rick. There have been a lot of attempts by the Trump administration to speed up deportations. Are they working, Actually, it's hard to tell. I mean, in some ways, even before the speeding up, the numbers have actually already been going down,

certainly since the Obama administration. So it's hard to know what the natural baseline is and whether these policies have put even lower than what it would have been had they not been put into place. But the speeding up is actually happening on two sides as well. Not only are trying to speed at the process, we're seeing a lot of the chaos in the courts because they're speeding

up the way they're implementing them. A lot of these things usually go through years of development, notice and comment, a lot of sort of explanation, but they're doing it so quickly in some ways, trying to get it on the ground before even goes through a proper review. And I think that's also what's annoying a lot of the courts. They want to have an opportunity to actually review these things. And I take it that most of these cases are going to end up certainly at the federal Palate Court level,

if not the Supreme Court. Yeah, definitely, And in some ways, some of the fight going on right now is the power of the district court to issue these injunctions before they make it up to the Palate Court or the Supreme Court. Certainly, the administration wants it to go all the way to the top before they can be blocked. But the concern is if you go through that entire review process and it takes a year or two years, that means administration may be implementing something against the constitution

or the law for that period of time. So nice to have you on again, Rick, Thanks so much. That's Rick Suey's a professor of law at the University of North Carolina School of Law. Thanks for listening to the Bloomberg Law Podcast. You can subscribe and listen to the show on Apple Podcasts, SoundCloud, and on Bloomberg dot com slash podcast. I'm June Brasso. This is Bloomberg