Trump’s Push to Deport Migrants Faces Judge’s ‘Ouija Board’ Test

(Bloomberg) -- A federal judge pressed the U.S. on whether it skirted rule-making requirements when it adopted new expedited-removal procedures for undocumented immigrants, telling the government it had to go by the book whether the policy itself was crafted with care or by “ouija board.”

Judge Ketanji Brown Jackson in Washington heard more than three hours of argument on Friday. She heard from lawyers for immigrant-rights groups seeking an order blocking the new measure and from a Justice Department attorney, who maintained that the government had carte blanche to change the procedures under an expansive law passed by Congress more than two decades ago.

The revised procedures were published without prior notice or public comment on July 23 but haven’t been enforced yet. They hold that anyone in the U.S. who crossed the border illegally and can’t show they’ve been in the U.S. continuously for at least two years can be removed immediately, on the word of a midlevel immigration officer alone and without a hearing.

Previously, the government had limited its use of expedited removal to people apprehended within 100 miles of the U.S. land border within the previous 14 days and to those who came by sea within less than two years.

President Donald Trump has promised to begin deporting “millions” of undocumented migrants, hammering at a signature issue as he makes his case for re-election. His administration is pushing to restrict illegal migration, both by limiting arrivals at the border and by ratcheting up deportation efforts, and arguing for reduced legal migration as well.

Read More: Threat of Fast-Track Deportations Likely to Keep Workers Quiet

Justice Department lawyer Erez Reuveni told Jackson that formal federal rule-making procedures weren’t required for the change because the government was simply exercising the maximum authority allowed by Congress under the 1996 legislation, and that its sudden deployment was warranted to deal with an influx of undocumented immigrants.

Jackson told Reuveni that however the government arrived at a rule -- even if by “dartboard” or “ouija board” -- it wasn’t allowed to implement that policy without warning.

Attorneys for the American Civil Liberties Union, which filed the lawsuit, contend that the changes can be traced back to an executive order issued by Trump shortly after he took office in January 2017. The ACLU asserts that the two-year lag belies government claims that the measure was needed to cope with current conditions. It seeks an injunction on behalf of Make the Road New York, the San Juan, Texas-based La Union Del Pueblo Entero, and WeCount! of Homeland, Florida, and their constituent members.

Jackson said it may be weeks before she issues a written ruling, as she needs to determine whether the federal Administrative Procedure Act applies and whether those suing have shown the requisite legal injury.

She ended the hearing by telling lawyers for both sides to confer and then draft a proposal for protecting people who may be subjected to the new procedures while her ruling is pending.

The case is Make the Road New York v. McAleenan, 19-cv-2369, U.S. District Court, District of Columbia (Washington).

To contact the reporter on this story: Andrew Harris in Washington at aharris16@bloomberg.net

To contact the editors responsible for this story: David Glovin at dglovin@bloomberg.net, Peter Jeffrey

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