What are expedited removal authorities that ICE agents use during courthouse arrests?

This week, ICE agents and other law enforcement were making arrests in front of the Phoenix Immigration Court as immigrant families left their court hearings. It’s one of a handful of cities lawyers and community members have reported seeing the activity.

Video shows plainclothes law enforcement officers who are armed and masked taking people away in handcuffs as they exit the courthouse.

An ICE spokesperson said those arrested are eligible for expedited removal. It’s a process from 1996 that allows the government to side-step normal immigration proceedings and fast-track deportation if someone has been in the U.S. for less than two years.

David Bier is the director of immigration studies at the Cato Institute.

“There’s a legal argument for ICE to rely on here but it’s untested, because no administration has ever applied the expedited removal statute away from the border,” he said. “It was applied to people who have recently crossed the border, who were arrested at the border, and now it’s being applied to people who’ve been living here, even living here legally.”

Most arrests have been of asylum seekers attending court hearings as part of CBP One — the Biden-era initiative that had migrants apply to enter the U.S. legally and pursue an asylum claim in immigration court. Bier says courts of the past have questioned the constitutionality of the statute, and found it to be legal on the basis that those it was applied to had just recently entered U.S. soil. Legal questions now will likely ask whether expedited removal can be applied to people away from the border, who are already living in the U.S.

Bier says ICE is usually acting as the prosecutor in immigration court, charged with proving that someone is removable to an immigration judge. But in these cases, the government is asking the judge to dismiss the case against the person.

“Normally, if the charges against you are dismissed, you'd be free to go and move on your way and go on with your life. But in these cases, what we're seeing is that individuals who have their charges dismissed are still being arrested immediately,” he said. “It effectively removes the need for Immigration and Customs Enforcement to prove someone is removable to an immigration judge, and allows them to remove them on their own authority, based on their own determinations … it reduces the amount of due process entitled to the immigrant.”

Dan Kowalski, a retired immigration attorney who is now editor-in-chief of Bender’s Immigration Bulletin, says immigrants can appeal that termination. But they’ll have to do so from detention. And many lack legal representation.

“This entire scheme is a way to get around the normal Section 240 immigration court proceedings, and pick off the low hanging fruit of people who are trying to comply with the law, go to immigration court, and attend their hearings,” he said.

He says questions also remain about what happens after people are arrested under the authority.

“For people who are Mexican, it's much easier for them to be detained briefly and then immediately deported or removed. But for people from other countries, the question remains — where is the U.S. going to put all these people? As far as I know, most jails are at or near capacity.”