George Fishman - Should Congress expand expedited deportations?

A federal appeals court has cleared the way for DHS to use expedited removal more broadly, raising questions about whether Congress should go even further. Could expanding the law help address the immigration court backlog and speed up deportations of illegal immigrants? George Fishman is a Senior Legal Fellow at the Center for Immigration Studies. He joins the show to discuss the court's ruling, expedited removal, and what Congress could do next. 

Transcript

SPEAKER_00 0:02

Hey, welcome back to the Lawrence Larson Show. As you know, I've been pro-removal of illegal aliens from America. And if you thought that Donald Trump has been removing a lot of illegal aliens for the last year and a half, it is about to get, I think, a whole lot better. A federal court has cleared the way for the Department of Homeland Security to start fast-tracking removals nationwide. Is Congress ready to perhaps close that loophole for good? I thought we'd ask George Fishman, who serves as Senior Legal Fellow at the Center for Immigration Studies. Ms. Fishman, welcome back to the program. Thanks so much for having me. Would you mind telling my audience what this illegal alien, I call it illegal alien, say illegal immigrant, if you want to be politically correct, loophole is all about and how the courts have now cleared the way to get rid of it?

SPEAKER_01 0:51

Well, sure. Well, this involves expedited removal, as it's called, which was actually first proposed by the Democrats in 1993. Bill Clinton, Ted Kennedy, Chuck Schumer, they were the ones proposing it. It got enacted into law by th through the Republicans in 1996. And essentially it provides that if an alien is apprehended at the border, at an international airport, trying to get over a fence, whatever, they can be immediately returned and deported unless they can show they have a credible fear of persecution. If they have a credible fear of persecution, they get to go before an immigration judge. But if they're not found to have a credible fear, they can be immediately returned. No administration has ever sought to use that power given to them by Congress until President Trump in his first term decided to use it. It got embroiled in litigation, then President Biden, you know, undid the whole thing. This term, President Trump's second term, did it again. And the question has always been hanging out there: is it constitutional? Well, as you said, the DC Circuit Court of Appeals just ruled uh a few weeks ago that the use of expedited removal for aliens who came to the U.S. illegally and have been here less than two years is perfectly constitutional.

SPEAKER_00 2:55

And by the way, Miss Frischman, can I ask you this? Throw this in for my audience if you don't mind. The DC Circuit Court is not exactly the most conservative circuit court in America, is it?

SPEAKER_01 3:07

Uh it isn't. You know, maybe maybe this is just serendipity, but uh the judge who wrote the decision is a Trump appointee, Justin Walker. And um, and so, you know, sometimes it comes down to uh uh you know which judges get assigned particular cases.

SPEAKER_00 3:25

Fair enough.

SPEAKER_01 3:25

But yeah, but it we it was Judge Walker who wrote the opinion.

SPEAKER_00 3:29

Okay, and and is there any reason to doubt the legit the legal legitimacy of that opinion?

SPEAKER_01 3:35

Well, I mean the question back a few years ago in 2020, the Supreme Court ruled that expedited removal was constitutional for aliens basically apprehended at the border, you know, within uh the the alien in that particular case was apprehended 25 yards into the United States. And the Supreme Court said, look, aliens outside the US have no constitutional due process rights.

SPEAKER_00 4:03

Right.

SPEAKER_01 4:03

And aliens who have on the threshold of entry, and that included this guy who was apprehended 25 yards into the United States after coming in illegally, also have no constitutional due process rights. Therefore, uh by definition, uh the only rights they have are the rights provided by Congress, and expedited removal was provided by Congress. So for them it's constitutional. Now the question remained after that decision by the Supreme Court, whether expedited removal is constitutional for aliens who basically, you know, they're inside the United States, they've been resident in the United States, whether here legally or not, because they do have certain due process rights. And so, you know, that was always the big question about, you know, if we if an administration did extend, did use the power to use expedited removal for aliens not here two years, illegal aliens not here two years, would that hold up in the courts? No one really knew. But, you know, again, just a few weeks ago, uh uh Judge Walker said indeed yes. And what I've tried to point out is reading Judge Walker's decision, there's nothing in his decision to indicate at all that expedited removal would have any constitutional problems if it applied to all uh illegal all aliens who can't be able to do that.

SPEAKER_00 5:34

I mean, because let me ask you something, Ms. Trishman. I'm not a lawyer, but you are. You're a senior legal fellow at CIS. Um is there any other part of the law where the law effectively says, hey, you violated the law, but if you violate it, manage to violate it without anybody catching you violating it for a certain period of time, all of a sudden the law with regard to the violation changes? I mean, like if you embezzle from a bank long enough that the bank has to say, well, you've been you've become dependent on us, so we've got to just let you keep on embezzling. That's what it seems like to me. If you say, well, you can, you know, you violate the law if you get caught within 25 yards, or within two years we can kick you out. But otherwise, we have to let you stay. Does any other part of the law work that way?

SPEAKER_01 6:18

Well, I mean, um, you know, say an alien has been here illegally for, you know, five years and is apprehended, right? They can still be removed, but they have to go through this removal process, uh, which has a backlog now of like three million cases. So, yeah, they can be removed, but but as a practically speaking, you know, when you have millions of these aliens and there are millions of cases in the backlog, that makes it almost impossible to do large-scale removals. You know, legally you can do it, but it's just the logistics make it uh, you know, make it quite daunting when you're talking about talking about a large number of people.

SPEAKER_00 7:00

Is there any way to speed that process up? I mean, because when the facts are clear, you say the person entered illegally. We see cases like this all the time. That joker from El Salvador that the media insisted on calling the Maryland man, you know, who's involved in human trafficking and all these things, he'd been ordered removed, and yet he wasn't removed from the country.

SPEAKER_01 7:20

Well, assuming that this decision of the DC Circuit uh, you know, is upheld by the Supreme Court, and you know, I'm sure there are going to be appeals, that um Congress could step in and change the extradited removal statute and say, hey, it applies no matter how long an illegal alien has been in the U.S.

SPEAKER_00 7:41

And that seems fair to me. That is George Fishman. He serves as senior legal counsel and fellow at the Center for Immigration Studies. Ms. Fishman, thanks very much. Back in a moment. I'll get to your phone calls and your emails. You're listening to the Lars Larson Show and the Radio Northwest Network.