President Donald Trump’s administration is eroding due process protections for people moving through immigration court in order to fast track its promises of mass deportations, lawyers and advocates say.
Several policy changes implemented in the past six months have increased the number of people eligible for expedited removal, allowing Immigrations and Customs Enforcement (ICE) agents to detain people at immigration court. The new policies make it harder for lawyers and family members to track those who have been detained, according to local and national immigration attorneys and advocates.
Many of those policies seem aimed at evading due process, said Vanessa Dojaquez-Torres, practice and policy counsel with the American Immigration Lawyers Association.
“It seems like the overarching goal of this administration is to sidestep those procedures to get increased numbers of removals and deportations,” Dojaquez-Torres said.
Immigration lawyers and court watchers in Minnesota and across the country say policies are changing so rapidly they’re difficult to track, and in ways that shrink the possibilities for people to stay in the United States even with a compelling legal case.
“These are tough times, because we don’t know how to advise people,” said Yasin Alsaidi, deputy director for Mid-Minnesota Legal Aid, which helps provide legal defense and advice for disadvantaged communities statewide.
Expedited removal is expanded
Immigration court is a civil court that operates under the U.S. Department of Justice. But everyone in the United States is entitled to a level of due process protections, according to Lindsey Greising, policy counsel for The Advocates for Human Rights, a Minneapolis-based nonprofit. Unlike criminal court, immigration court does not guarantee the right to a lawyer, and many go through the system without representation.
“We’re seeing that diminish at a much more rapid pace than anyone anticipated,” Greising said.
A key Trump-era policy that is eroding due process is the expansion of expedited removal, Dojaquez-Torres said. Expedited removal was historically used for immigrants who were within 100 miles of an international border and who had been in the country a short amount of time. But the Trump administration has expanded the policy to use it nationwide for anyone who can’t demonstrate they’ve been in the United States for more than two years.
Expedited removal allows the Department of Homeland Security (DHS) to deport people quickly without going through formal hearings. Those placed under expedited removal are detained while awaiting deportation.
A DHS senior spokesperson said in a statement to Sahan Journal that the agency is reversing the “catch and release” policy used in the past.
“Most aliens who illegally entered the United States within the past two years are subject to expedited removals. Biden ignored this legal fact and chose to release millions of illegal aliens, including violent criminals, into the country with a notice to appear before an immigration judge. ICE is now following the law and placing these illegal aliens in expedited removal, as they always should have been,” DHS said in the statement.
People in expedited removal have few paths to appeal, but can request a “fear interview” where DHS speaks with the person and determines if they have a valid fear of returning to their country. Immigration lawyers across the country are reporting that clients under expedited removal are waiting more than a month in detention to receive a fear interview, Dojaquez-Torres said.
DHS said that those with valid credible fear claims will continue immigration proceedings, but those without good claims will face swift deportation.
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Expedited removal can occur quickly. When Dojaquez-Torres worked in San Diego, people from Mexico with expedited removal could be deported in hours. Different presidential administrations have used expedited removals in their own way, Dojaquez-Torres said. President Joe Biden’s administration prioritized people with criminal history. But today, the pool is broader.
“The change is now everyone is a priority for expedited removal,” Dojaquez-Torres said.
That’s a “huge concern” for due process, said Graham Ojala-Barbour, an immigration lawyer based in St. Paul. Lawyers can file an appeal for clients with expedited removal, but it’s not clear ICE will wait for that process to play out, and it can be logistically hard for lawyers to help clients craft a defense, he said.
Someone recently came into Ojala-Barbour’s office seeking help for a friend who had been arrested by ICE. They made a plan to help the detainee, but the friend was transferred from Minnesota to an ICE detention facility in Louisiana two days later.
Ojala-Barbour wasn’t able to communicate with the detainee, and when the person’s case came before an immigration judge, DHS moved to dismiss the case and process the person for expedited removal.
There may be a process, but it doesn’t feel like due process, he said.
“ICE, which has very little oversight already, is running with the idea that the American people want to deport people without due process, and I don’t think that’s right,” Ojala-Barbour said.
Immigration lawyers and human rights advocates are concerned that Trump’s landmark legislation, the newly passed Big Beautiful Bill, delivers a massive budget increase for ICE but little funding boost for new immigration judges or courts. The bill triples ICE’s deportation and removal operations funding and gives the agency $45 billion for new detention facilities.
“The emphasis is on enforcement rather than streamlining an immigration system,” Alsaidi said.
Increased detention
The increased use of expedited removal is leading to an increase in people being detained in ICE custody.
Immigration lawyers and court watchers have documented people being arrested at immigration court. If an immigrant’s case against deportation is dismissed, ICE is now able to arrest them at the courthouse under a new policy. Those arrests are happening in Minnesota, according to Ojala-Barbour and Greising, who couldn’t provide an exact number. Greising’s organization partners with the University of Minnesota to host an immigration court observer group that regularly attends immigration hearings. Arrests at court have been happening on a regular basis for about a month now, she said.
DHS did not respond to a question asking how many people have been detained at Fort Snelling Immigration Court.
When people show up for their immigration hearings, DHS lawyers will ask the judge to dismiss the case, Greising said. If the judge grants the dismissal, the people will be placed in expedited removal and arrested as they leave the court house.
“It’s creating a lot of concern about how these processes are being run and what that means for fair processes,” Greising said.
Detention has also expanded to include people who crossed the border illegally, turned themselves into customs officers and were allowed to stay, or “parole,” in the country while their case was being processed. Such detention became common in recent years, and started before Trump’s second term.
The United States allowed thousands of people who entered through the southern border illegally to parole into the county. As long as they weren’t deemed a security threat, those people could live in the United States and were required to attend immigration court for hearings.
Large groups of people from Venezuela and Ecuador who have settled in Minnesota in recent years are under this system. But an appeals court in May evaluated the case of a Chinese woman named Q. Li, and issued a ruling that people on parole are no longer eligible for bond hearings, and therefore must sit in detention for months as their case moves forward.
Due process used to include being released from custody while awaiting hearings, Ojala-Barbour said, but the Li case will put thousands of people into detention on taxpayers’ dime, and limits a judge’s discretion to release people from detention.
“There’s a cost to the public in taking away people’s right to request release,” Ojala-Barbour said.
The result of eroding due process is that people are abandoning attempts to stay in the United States, even if they are fleeing serious harm and persecution, Greising said. That’s disturbing from a human rights perspective as some immigrants are people who have been assaulted, threatened and even tortured, she said.
“It makes people give up cases even if they have a viable case,” she said.
Cases are being reopened
People eligible for certain statuses*, such as trafficking and crime victims or kids who have been abused, abandoned or neglected typically could get their removal proceedings paused, but now DHS is moving to reopen those cases and push for expedited removal, Greising said.
“I think we are seeing that everywhere there is a gap or argument being made, the Trump admin is pushing that line to make our policies as harsh and expansive as possible,” Greising said.
Immigration lawyers nationwide are reporting those actions, according to Dojaquez-Torres.
“What’s going on right now is ICE is requesting all these cases up to the active docket,” she said.
Cases are also being reopened for people who were determined eligible for deportation years ago, but who were allowed to stay in the United States due to conditions in their home country, Dojaquez-Torres said. That has included Hmong Minnesotans who are increasingly being deported to Laos, which didn’t accept deportees for many years. Many Hmong Minnesotans who came to the United States as refugee children are suddenly having immigration cases reopened, often due to prior criminal convictions.
Knowing your rights
Families with loved ones detained by ICE are unlikely to receive a notification about an arrest or updates on where people are being held, Dojaquez-Torres said.
Even lawyers aren’t told if their clients are detained, and often are not informed about transfers, which are increasingly common, she said. ICE has a detainee locator, but lawyers say the information is not always perfect and up to date, making it difficult to know exactly where someone is being held. ICE detainees in Minnesota are kept at a few county jails that contract with the federal government.
It falls on detainees to memorize phone numbers for family or lawyers so they can connect with them when able.
More immigrants are being detained in what are known as lateral arrests, where ICE is looking for one person, but arrests other people who are present, according to Dojaquez-Torres. The agency does not need a warrant to make an arrest if they encounter people in public.
ICE agents use two types of warrants. The most common is a lesser form of warrant signed by a DHS field officer that does not give the agency permission to enter private homes and businesses without consent. The agency can also obtain federal judicial warrants that enable them to enter private buildings and residences, but those are rare, Dojaquez-Torres said.
People should demand to read a warrant before allowing ICE to enter a home or facility, she said.
*Clarification: This article has been updated to more accurately reflect the types of closed immigration cases DHS is pushing to reopen.
