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This immigration policy needs attention

ghosh-smita-col-sigWith the end of President Donald Trump’s administration in sight, immigration advocates and activists are looking to the Biden transition team to see what actions the new president will take to protect immigrant rights.

He might start with a policy that has so far escaped national attention, but — if history is any guide — could have a huge impact on immigrant communities.

The policy is called expedited removal, a process by which a noncitizen is deported by enforcement officials without a hearing before an immigration judge. Since 1996, when Congress created the process of expedited removals, presidential administrations had used the power sparingly.

Specifically, immigration officials employed this “fast-track” deportation process relatively close to the border, and for people who had been in the country for less than two weeks. In October 2020, however, the Department of Homeland Security announced that it would apply expedited removal everywhere, and to any undocumented immigrant who has been in the country for less than two years.

In the history of expedited removals, this move is unprecedented. Without a recent example, we can look back to an earlier era to demonstrate the consequences of fast-track deportations.

Immigration raids

In 1954, President Dwight D. Eisenhower and his commissioner of immigration, Gen. Joseph Swing, a U.S. Military Academy classmate who brought a military approach to border enforcement, launched what was called “Operation Wetback” to address a perceived immigration problem. “Wetback,” or mojado, was a derogatory term used to describe Mexican migrants.

Swing organized Border Patrol officers into “task forces” to concentrate on a single community at a time — first California, then Texas, then Chicago, where, according to the Chicago Daily News, a “small army of immigration officers searched through the city for offenders.” These task forces raided places of work, private homes and public areas like parks or bus stops. Migrants encountered in the raids would be detained in makeshift detention camps.

Like expedited removal, Operation Wetback bypassed the immigration courts. Immigration authorities worked hard to make sure this was the case. During a 1954 raid in Los Angeles, an advocacy organization complained, immigration officers gave noncitizens no “opportunity to seek legal counsel, notify relatives, or even pick up [their] belongings or collect [a] paycheck.” Officials also did their best to deter lawyers from participating.

Instead of formal proceedings, Immigration Service officers urged noncitizens to accept a process called “voluntary departure.” Voluntary departure allowed deportable immigrants to leave the country without a formal order of deportation.

Sometimes, though, the voluntary departure system rested on coercive action. As Goodman explains, authorities “threatened” or “tricked” migrants into agreeing to voluntary departure, and sometimes even forged their signatures on the paperwork.

In the end, the government reported that 30,000 noncitizens were deported in 1954, along with over 1 million voluntary departures. Operation Wetback did not end unauthorized labor migration, which increased rapidly in the 1970s and ′80s.

Lessons learned

The story of Operation Wetback contains several lessons for today’s era of expanded expedited removal.

First, reliance on swift expulsions is bad policy. It instills a culture of fear, risks erroneous deportations and leaves room for aggressive and biased enforcement.

Second, speedy procedures place extraordinary demands on immigrant communities. While Congress and the president can — and should — limit the use of expedited removal, it will be up to migrants and organizers to resist fast-track deportations in the meantime. As in Operation Wetback, legal representation for individuals in these proceedings will be hard to come by, especially when the process moves so quickly. In 2018, immigrants in expedited removal proceedings spent an average of 11.4 days in detention before getting deported, and some expedited removals take just a few hours.

To resist expedited removal, immigration organizations have instructed people to carry documents that demonstrate that they have been in the country for more than two years — and therefore are not subject to expedited removal. (Guidance from ICE suggests carrying “bankbooks, leases, deeds, licenses, bills, receipts, letters, birth records, church records, school records, employment records, and evidence of prior law enforcement,” not necessarily documents that one usually carries around).

More broadly, the practice of expanded expedited removal warrants scrutiny, even in an era of overwhelming change in immigration policy. The everyday violence of deportation is often lost in national conversations about immigration reform, which revolve around more attention-grabbing efforts — travel bans, separated families, children in cages.

But deportation, which surged under both Presidents Barack Obama and Donald Trump, also separates families, jeopardizes communities and destroys lives. It is important for each president to use the power carefully when so much is at stake.

Smita Ghosh is a research fellow at Georgetown University Law Center. This column first appeared in The Washington Post.