On Tuesday, the Trump administration released a pair of memos authorizing federal authorities to deport undocumented immigrants more aggressively, directives that are in line with President Trump’s executive orders on border security and immigration. The measures laid out in the memos seek to shorten the sometimes years-long deportation process for many immigrants, often to the detriment of immigrants’ existing due process rights.

As the changes roll out, they’ll reverberate throughout the deportation pipeline, affecting the numerous government agencies and courts involved.

Undocumented immigrants

could face:

EXECUTIVE AGENCIES

Customs and Border

Protection

(CBP)

Apprehends immigrants at the border and ports of entry, like airports.

Immigration and Customs

Enforcement

(ICE)

Apprehends immigrants in the interior of the country, and represents the government in court.

U.S. Citizenship and

Immigration Services

(USCIS)

Determines if immigrants qualify to apply for asylum and go through the court system.

COURTS

Immigration Court

The first court that hears deportation cases.

Board of Immigration Appeals

(BIA)

Hears appeals from immigration court.

Circuit Court of Appeals

(CCA)

Hears appeals from the BIA, almost always on asylum cases.

Undocumented immigrants could face:

EXECUTIVE AGENCIES

Customs and

Border Protection

Immigration and

Customs Enforcement

U.S. Citizenship and

Immigration Services

(CBP)

(ICE)

(USCIS)

Apprehends immigrants at the border and ports of entry, like airports.

Apprehends immigrants in the interior of the country, and represents the government in court.

Determines if immigrants qualify to apply for asylum and go through the court system.

COURTS

Immigration

Court

Board of Immigration

Appeals

Circuit Court of

Appeals

(BIA)

(CCA)

The first court that hears deportation cases.

Hears appeals from immigration court.

Hears appeals from the BIA, almost always on asylum cases.

Undocumented immigrants could face:

EXECUTIVE AGENCIES

COURTS

Customs and

Border Protection

Circuit Court

of Appeals

Immigration and

Customs Enforcement

U.S. Citizenship and

Immigration Services

Immigration Court

Board of

Immigration appeals

(BIA)

(CCA)

(CBP)

(ICE)

(USCIS)

Apprehends immigrants at the border and ports of entry, like airports.

Apprehends immigrants in the interior of the country, and represents the government in court.

Determines if immigrants qualify to apply for asylum and go through the court system.

The first court that hears deportation cases.

Hears appeals from immigration court.

Hears appeals from the BIA, almost always on asylum cases.

When government officials try to deport someone, there are two paths they can take. The expedited process, which bypasses the court system, is quicker — it typically takes about two weeks, according to Phil Torrey, the supervising attorney for the Harvard Immigration Project — and is used to deport people who haven’t been in the country very long. It allows the government to quickly filter out immigrants who are not owed more protection by the Constitution or international treaties. Those who pass the expedited process enter the normal process.

The normal process, by contrast, affords immigrants more due process rights and takes longer — typically around two or three years but as many as 10, according to Torrey and Leon Fresco of Holland & Knight LLP, an immigration law firm. This process goes through the court system.

One of the major changes outlined in Trump’s memos narrows who is eligible for the normal process. Under President Barack Obama, the expedited process was used only for immigrants who were apprehended within 100 miles of the border and had been in the country fewer than 14 days. Even within that group, some people were diverted to the normal process. The memos indicate, though, that Trump will use the expedited process for immigrants within 100 miles of the border who have been in the country for as long as two years — the statutory maximum — and will make few exceptions.

For the people affected, “In a sense, that’s a decrease [in due process rights],” Fresco said. And he says the change will bring both practical and constitutional issues. “I don’t know how you determine someone’s been in the country 22 months as opposed to 26 months,” he said. “I think the court would have a hard time saying a person [who’s lived in the country two years] didn’t have some federal court due process right.”

Once an immigrant is in court, however, their rights to a translator, access to a lawyer at their own cost or pro bono, and to have a judge explain what’s happening are unaffected by the memos. The mechanics of the deportation process are largely maintained, but the few changes could prove significant.

SELECTING THE PROCESS

Was the immigrant apprehended within 14 days of entering the country, within 100 miles of the border?

(This limit is now two years

instead of two weeks.)

NO

YES

EXPEDITED

NORMAL

(Can take years)

(About two weeks)

The immigrant gets a “notice to appear” in court. Some are detained, but many aren’t.

After apprehending and detaining animmigrant, the agent determines if he or she seems afraid to return home.

(It will likely be harder to get paroled, so more people will remain detained.

People may also be detained in Mexico.)

NO

YES

Verification

USCIS determines if the immigrant has a “credible fear” of returning home.

(Verification may require more evidence.)

NO

YES

Appeal

The immigrant can appeal to an immigration court to establish “credible fear.”

LOSE

WIN

The immigrant

is deported

The normal process continues

The hearing

The immigrant hears their “basis of removability” in immigration court. They are able to mount a defense, such as eligibility for asylum.

DONT

DEFEND

DEFEND

The removal

The immigrant is given a removal order. They acquire travel documents, such as a passport, and consent from their home country to return. This often happens immediately.

The immigrant

is deported

The trial

There is a trial in immigration court on the merits of the immigrant’s removal and defense.

LOSE

WIN

First appeal

The immigrant

can appeal to the Board of Immigration Appeals, who may decide the case or remand it to immigration court. The government can appeal, too, but it’s rare.

(More people will spend a long time in detention, which could lead them to give up on appeals.)

LOSE

WIN

Second appeal

Primarily in asylum cases, the immigrant can appeal to the Circuit Court, which may decide the case or remand it to the BIA.

LOSE

WIN

The immigrant

is deported

The immigrant

can stay

Visa granted

The removal

The immigrant is given a visa.

The immigrant is given a removal order. They acquire travel documents, such as a passport, and consent from their home country to return. This often happens immediately.

The changes made

by the Trump

administration:

SELECTING THE PROCESS

Was the immigrant apprehended within 14 days of entering the country, within 100 miles of the border?

This limit is now two years instead of two weeks.

NO

YES

EXPEDITED

NORMAL

(Can take years)

(Takes about two weeks)

After apprehending and detaining an immigrant, the agent determines if he or she seems afraid to return home.

The immigrant gets a “notice to appear” in court. Some are detained, but many aren’t.

It will likely be harder to get paroled, so more people will be detained. People may also be detained in Mexico.

NO

YES

Verification

USCIS determines if the immigrant has a “credible fear” of returning home.

Verification may require more evidence.

NO

YES

Appeal

The immigrant can appeal to an immigration court to establish “credible fear.”

LOSE

WIN

The removal

The asylum request

The immigrant moves on to the “normal process” to apply for asylum. They typically, but not always, are allowed to post bail, if they can afford it.

The immigrant is given a removal order. They acquire travel documents, such as a passport, and consent from their home country to return. This often happens immediately.

The immigrant is deported

Continues the process

The hearing

The immigrant hears their “basis of removability” in immigration court. They are able to mount a defense, such as eligibility for asylum.

DONT

DEFEND

DEFEND

The trial

There is a trial in immigration court on the merits of the immigrant’s removal and defense.

The immigrant is deported

The removal

LOSE

WIN

The immigrant is given a removal order. They acquire travel documents, such as a passport, and consent from their home country to return. This often happens immediately.

First appeal

The immigrant

can appeal to the Board of Immigration Appeals, who may decide the case or remand it to immigration court. The government can appeal, too, but it’s rare.

More people will spend a long time in detention, which could lead them to give up on appeals.

WIN

LOSE

Second appeal

Primarily in asylum cases, the immigrant can appeal to the Circuit Court, which may decide the case or remand it to the BIA.

WIN

LOSE

The removal

The immigrant is given a removal order. They acquire travel documents, such as a passport, and consent from their home country to return. This often happens immediately.

Visa granted

The immigrant is given a visa.

The immigrant can stay

The immigrant is deported

The changes made

by the Trump

administration:

SELECTING THE PROCESS

Was the immigrant apprehended within 14 days of entering the country, within 100 miles of the border?

This limit is now two years instead of two weeks.

NO

YES

EXPEDITED

NORMAL

(Can take years)

(Takes about two weeks)

It will likely be harder to get paroled, so more people will be detained. People may also be detained in Mexico.

After apprehending and detaining an immigrant, the agent determines if he or she seems afraid to return home.

The immigrant gets a “notice to appear” in court. Some are detained, but many aren’t.

NO

YES

Verification

Verification may require more evidence.

USCIS determines if the immigrant has a “credible fear” of returning home.

NO

YES

Appeal

The immigrant can appeal to an immigration court to establish “credible fear.”

LOSE

WIN

The removal

The asylum request

The immigrant is given a removal order. They acquire travel documents, such as a passport, and consent from their home country to return. This often happens immediately.

The immigrant moves on to the “normal process” to apply for asylum. They typically, but not always, are allowed to post bail, if they can afford it.

The immigrant is deported

Continues the process

The hearing

The immigrant hears their “basis of removability” in immigration court. They are able to mount a defense, such as eligibility for asylum.

DONT

DEFEND

DEFEND

The trial

There is a trial in immigration court on the merits of the immigrant’s removal and defense.

LOSE

WIN

The immigrant is deported

First appeal

The removal

The immigrant is given a removal order. They acquire travel documents, such as a passport, and consent from their home country to return. This often happens immediately.

More people will spend a long time in detention, which could lead them to give up on appeals.

The immigrant

can appeal to the Board of Immigration Appeals, who may decide the case or remand it to immigration court. The government can appeal, too, but it’s rare.

WIN

LOSE

Second appeal

Primarily in asylum cases, the immigrant can appeal to the Circuit Court, which may decide the case or remand it to the BIA.

WIN

LOSE

The immigrant is deported

The immigrant can stay

The removal

Visa granted

The immigrant is given a visa.

The immigrant is given a removal order. They acquire travel documents, such as a passport, and consent from their home country to return. This often happens immediately.

Some of the most significant changes proposed in the memos don’t actually affect the process itself — they affect who enters it. They call for substantial increases in the number of immigration enforcement and border security agents, as well as detention facilities. And they broaden which immigrants are considered “priorities” for deportation beyond those with serious criminal convictions, directing agents to detain and deport anyone with a minor conviction such as driving without a license. This broader criteria will cause a large swath of the immigrant community to be prioritized, according to Torrey and Fresco.

Of those who begin the process, it’s likely more cases will end in deportation, according to Torrey. By redirecting people to the expedited process and making it potentially more difficult to establish the “credible fear” required to apply for asylum, fewer immigrants will get the chance to plead their case in court. And since parole qualifications were tightened, immigrants may be more likely to spend significant time in detention, which can lead them to accept a loss in court more readily. “If the person’s detained the whole time … and the appeals process can be long — a lot of times they don’t appeal for that reason,” said Torrey.

Trump administration officials have clarified that these memos are not meant to prompt mass deportations and will take time to implement.

“As a practical matter, the immigration [system], until it gets scaled up, can’t create mass deportation,” Fresco said. “But what it can certainly create is mass anxiety.”

Aaron Steckelberg and Samuel Granados contributed to this graphic.

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