U.S. immigration officers were handed more power this week that could have a ripple effect on immigrants living throughout the country, and not just at the border.
On Monday, the Trump administration announced that it will allow ICE agents to deport migrants without requiring them to first appear before a judge.
The Department of Homeland Security (DHS) claims the policy change is necessary to address the situation at the southern border. Officials say it will free up beds in detention centres and reduce the backlog of more than 900,000 cases lingering in immigration courts — which can take years to be resolved.
The policy will effectively speed up or “fast-track” the deportation process.
It’s yet another immigration policy change in recent months by U.S. President Donald Trump, who is likely to hook his re-election campaign on the issue.
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But this time, the focus has shifted.
“Most public attention has been focused on the southern border because that’s where the president has been focusing his attention,” Sarah Pierce, a U.S. policy analyst at the Migration Policy Institute, told Global News.
“But this is expanding a tool that we have always used for border security into the interior and making it a part of interior enforcement.”
How will it work?
The policy change applies to anyone in living in the U.S. illegally for less than two years. Immigration officers will be able to fast-track deportations for people who don’t meet that requirement.
When an ICE agent encounters someone who is unable to prove that they have been in the country for at least two years, they become eligible for “expedited removal,” which cuts out a review by an immigration judge.
The “expedited removal” process, created in 1996, is already used along the U.S.-Mexican border. It was relatively overlooked until 2004 when DHS made an enforcement change.
Previously, the law has applied only to immigrants who were arrested within 14 days of arriving in the U.S. and apprehended within 100 miles (160 kilometres) of a land border.
Those parameters will be expanded as of Tuesday, stretching well beyond the border.
ICE agents who encounter someone anywhere in the U.S., who don’t provide proper documentation, no longer need a judge to determine a person’s deportation.
In the past, a person caught by ICE, away from the border, would be subject to a legal process. Unless they had a prior removal order on their record, that individual would face a judge “at least twice” before being ordered deported, Pierce said.
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According to the Migration Policy Institute, nearly 300,000 of the approximately 11 million immigrants living in the U.S. illegally could be quickly deported under the new rule.
How will it be enforced?
This part is not clear, according to Pierce, who said ICE agents still don’t have clear guidelines from the DHS on how to determine someone’s eligibility to stay in the U.S.
“If that individual is not able to prove to the satisfaction of the officer that they have been in the United States for at least two years, then they’ll be eligible for expedited removal,” she said.
“That’s the standard of the statute — to the satisfaction of that particular immigration officer.”
As it stands, it’s not known what sort of evidence an immigration officer will look for, what kind of questions will be asked or what would constitute “sufficient proof” that they’ve been in the U.S. within the threshold, she said.
“As of today, it is entirely, 100 per cent up to the discretion of the individual immigration officer.”
It’s difficult to say what someone should carry as documentation, said Pierce, who used to practice as an immigration attorney.
Those with legal status should have paperwork, but unauthorized immigrants who have been in the country for at least two years might need to rely on other things.
“Even if it’s a library card that dates back three years, at least that will be something,” she said.
“But who knows what would satisfy that particular immigration officer that they interact with. It’s really difficult.”
In other words, someone who has lived in the country for more than two years, but is undocumented and cannot provide proof of that timeframe, are at risk of being thrust into the deportation process.
“It sounds super fast, but it typically doesn’t happen that fast,” Pierce said of expedited removal. The normal process, due to the backlog, often takes months or years. The changes to the policy could see people removed in a matter of days.
“It’s not like people are just going to disappear immediately, but no one wants to even be subject to the start of that process.”
Problems with the policy
The American Civil Liberties Union and American Immigration Council called the plan “unlawful” and intends to block the policy with a lawsuit.
“Immigrants who have lived here for years would be deported with less due process than people get in traffic court,” Omar Jawdat, the director of the ACLU’s Immigrants’ Rights Project, told The Associated Press.
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Human rights activists have labelled the change as another “dangerous” tactic that could tear families apart.
Pierce said taking the judicial process out of immigration “entirely removes the due process from that process.”
There is speculation that the policy will usher in a “show me your papers” attitude from ICE.
Pierce said it’s a fair characterization of what’s developing within immigration policies.
“It’s going to be interesting to hear reports on how this is being executed. Once DHS comes out with that guidance, we will see how high of a bar they are going to set for people who randomly encounter ICE officers,” she said.
“How convincing does that evidence need to be, that you just happen to have on your person?”
— With files from The Associated Press and Reuters