President-elect Trump is seeking advice on immigration policy and issues from Kris Kobach, an extreme right-wing, anti-immigration proponent. Kris Kobach was the author of the infamous Arizona “show me your papers” law, major portions of which were later struck down by the US Supreme Court. He also reportedly authored the even worse SB-6 bill that was rejected by the Kentucky legislature three years ago.
During a recent CNN interview, Mr. Kobach discussed the current policy of “expedited removal.” This is a process by which people can be deported quickly and with no opportunity to see a judge or apply for relief.
Under current DHS policy, expedited removal is limited to individuals who: 1) entered the us without inspection (aka "EWI"s), 2) are encountered by DHS within 100 miles of the border, and 3) who entered within 14 days of apprehension. DHS policy includes the 14 day limitation, but that is not found in the statute - it's just a policy and can change at any time. The statute says it applies to anyone fitting the first two points above and who cannot demonstrate that they have resided in the US continuously for the past two years. These individuals are only allowed an opportunity to defend themselves before a CBP officer, they are not given the opportunity to see an immigration judge, and they are not eligible to apply for any relief from deportation. They are also very quickly deported from the US, usually on a bus to Mexico, or by plane to the individual’s home country.
Kobach suggested expanding the current “expedited removal” process to include those encountered anywhere in the United States who cannot produce documents proving to the satisfaction of a CBP officer that they have resided in the US continuously for the past two years. This means if an undocumented individual comes into contact with an immigration enforcement officer (CBP or ICE) anywhere in the US and cannot provide documentation of their physical presence in the US for the past two years, they could face expedited removal. As noted above this means the person would be detained with no possibility of release on bond, not allowed to have a hearing before an immigration judge, and ineligible to apply for any relief from deportation. This eliminates the possibility of applying for Cancellation of Removal, which many undocumented individuals are eligible to apply for and which, if granted, equals permanent residence.
We do not know if this disastrous and extreme policy change will happen. But this policy was openly discussed by Kris Kobach during the above mentioned CNN interview, so we must take it seriously. After President-elect Trump is sworn in, we advise all individuals to always have in their possession proof of two years physical presence in the US, in case they are stopped by an immigration officer. We also strongly encourage everyone to keep a second copy of the documentation at home for easy access by a family member or a friend (someone with legal immigration status) to present to an immigration officer, if necessary.
However, if you are arrested without your documentation, you should demand to speak to your immigration attorney and to have him or her present with you at your expedited removal hearing before an immigration officer.