WASHINGTON - The Trump administration on Tuesday will significantly expand its power to quickly deport undocumented immigrants who have illegally entered the United States within the past two years, using a fast-track deportation process that bypasses immigration judges.
Officials are calling the new strategy, which will take effect immediately, a "necessary response" to the influx of Central Americans and others at the southern border. It will allow immigration authorities to quickly remove immigrants from anywhere they encounter them across the United States, and they expect the approach will help alleviate the nation's immigration court backlog and free up space in Immigration and Customs Enforcement jails.
The stated targets of the change are people who sneaked into the United States and do not have an asylum case or immigration court date pending. Previously, the administration's policy for "expedited removal" has been limited to migrants caught within 100 miles of the U.S. border and who have been in the country for less than two weeks. The new rule would apply to immigrants anywhere in the United States who have been in the country for less than two years - adhering to a time limit included in the 1996 federal law that authorized the expedited process.
Immigrants apprehended in Iowa, Nebraska or other inland states would have to prove to immigration officials that they have been in the United States continuously for the past two years, or else they could end up in an immigration jail facing quick deportation. And it could be relatively low-level immigration officers - not officers of a court - making the decisions.
President Donald Trump has promised to deport millions of immigrants and has threatened enforcement raids targeting those in as many as 10 major cities.
Nearly 300,000 of the approximately 11 million unauthorized immigrants in the United States entered the country illegally and could be subject to expedited removal, according to the nonpartisan Migration Policy Institute. The typical undocumented immigrant has lived in the United States for 15 years, according to the Pew Research Center.
Though border apprehensions have fallen in June and July as the Trump administration and Mexico intensify their crackdown on the southern border, acting Department of Homeland Security Secretary Kevin McAleenan said in a draft notice Monday that "the implementation of additional measures is a necessary response to the ongoing immigration crisis." He said the new rule would take effect immediately upon publication in the Federal Register, which is scheduled for Tuesday.
"DHS has determined that the volume of illegal entries, and the attendant risks to national security and public safety presented by these illegal entries, warrants this immediate implementation of DHS's full statutory authority over expedited removal," McAleenan said in the notice. "DHS expects that the full use of expedited removal statutory authority will strengthen national security, diminish the number of illegal entries, and otherwise ensure the prompt removal of aliens apprehended in the United States."
Immigration lawyers said that the expansion is unprecedented and effectively gives U.S. agents the power to issue deportation orders without bringing an immigrant before a judge or allowing them to speak with a lawyer.
"Under this unlawful plan, immigrants who have lived here for years would be deported with less due process than people get in traffic court," Omar Jadwat, director of the Immigrants' Rights Project of the American Civil Liberties Union, said in a statement. "We will sue to end this policy quickly."
Royce Bernstein Murray, of the American Immigration Council, also vowed to challenge the policy in court, arguing that the broadened authority allows DHS "to essentially be both prosecutor and judge."
Advocates warned that the policy could ensnare longtime legal residents or even U.S. citizens who have been deported in error before. Vanita Gupta, president of the Leadership Conference on Civil and Human Rights, said she fears the rule will lead to increased racial profiling and turn ICE into a "show me your papers militia."
"This new directive flows directly from the racist rhetoric that the president has been using for the last week and indeed months, but this new rule is going to terrorize communities of color," said Gupta, who was head of the U.S. Department of Justice's Civil Rights Division under President Barack Obama. "It really reads as a send-them-all-back policy," she added, referring to the audience's chants at a Trump rally last week that said "send her back" in response to the president's attacks on a Somali-born Muslim congresswoman, Ilhan Omar.
David Leopold, a Cleveland immigration lawyer and former president of the American Immigration Lawyers Association, said expanding the expedited removal program shifts the decision-making to immigration officers who might not have much experience with such a policy and means that many immigrants who might have the right to remain in the country won't be given the opportunity to show it.
"That is going to apply to a huge swath of people," he said, noting that the rule requires migrants to prove that they have been in the United States for years - a particularly difficult onus when they are, by definition, lacking legal immigration documents. "My view is: How are they going to prove it? The burden is on them to prove it. If I can't prove it, I'm done."
ICE, which enforces immigration law and makes arrests across the United States, estimates that "a significant number" of undocumented immigrants would be eligible for expedited removal, including at least 20,500 migrants the agency apprehended last fiscal year and more than 6,400 it arrested this year, as of March 30.
McAleenan, in the federal notice, made reference to the Trump administration's recent efforts to deter migration to the United States on many fronts, an approach that has included pushing asylum claimants back into Mexico to await court hearings, stepped up Mexican enforcement against migrants as they head north, and the threat of ICE raids on families who have final removal orders. McAleenan wrote that the new rule "will reduce incentives" for migrants to enter the United States and swiftly move away from the border to avoid the faster deportation process.
DHS said it has anecdotal evidence that many immigrants smuggled into the United States hide in "safe houses" far from the southern border to avoid the threat of expedited removal. This year they said they found 67 undocumented immigrants in a safe house in Roswell, New Mexico - just beyond 100 miles from the Mexican border - and the year before they found three others, held for ransom, at a house in San Antonio, about 150 miles from the border.
Federal officials said they could make exceptions for people with serious medical conditions or "substantial connections" to the United States, and they say deportation is not necessarily immediate. Officials said they have safeguards in place for migrants who might be U.S. citizens or legal residents.
Asylum officers will interview immigrants who fear returning to their home countries to determine if they qualify for asylum or another form of protection, and they potentially could refer them to full deportation proceedings. Unaccompanied minors from non-neighboring countries are not eligible for speedy deportations under federal law.
Expedited removals stem from a 1996 law, signed by President Bill Clinton, that authorized the use of expedited deportations for illegal immigrants apprehended anywhere in the country who could not prove they had been physically present in the country two years before their apprehension.
In practice, enforcement was far more limited, at first applying to migrants arriving at a port of entry or by sea. In 2004, President George W. Bush expanded expedited removals along the U.S.-Mexico border, allowing for the swift expulsion of immigrants caught within 100 miles of the border who had lived in the country fewer than 14 days. The Bush administration said issuing removal orders bars migrants from reentering the United States and makes it easier to pursue criminal charges against them if they try.
Expedited deportations soared from about 50,000 immigrants in 2004 to 193,000 in 2013, about 44 percent of the total number of people deported that year, according to the American Immigration Council.
Trump sought to expand expedited deportations days after he took office as one of multiple strategies to crack down on illegal immigration at a time when the immigration court backlog hovered at about 600,000 cases. The plan never materialized, and illegal border crossings sank in the months after assumed the presidency.
But apprehensions soared during the past year as migrant families from Central America have sought refuge in the United States; they often are quickly released to await court hearings because of limits on how long the United States can detain children.
Since then, the immigration court caseload has spiked to more than 900,000 cases, and ICE has more than 50,000 migrants in custody each day, a record.
In the notice, McAleenan said expedited removal will relieve pressure on detention centers and the courts. He said the courts had fewer than 168,000 cases at the end of fiscal year 2004, when DHS expanded expedited removal along the southern border.
Migrants in expedited proceedings spend an average of just more than 11 days in immigration jails, while detainees awaiting "time-consuming" court hearings spend almost 52 days in jail.
"DHS expects that the New Designation will help mitigate additional backlogs in the immigration courts and will reduce the significant costs to the government associated with full removal proceedings before an immigration judge, including the costs of a longer detention period and government representation in those proceedings," McAleenan said in the notice.
The Trump administration says the notice is exempt from the Administrative Procedure Act's public comment requirements, but DHS is seeking comments on the change even though it is slated to take effect immediately upon posting.
PARMA, Ohio - At Knuckleheads Bar & Grill, the subject on a sweltering Saturday afternoon was the drug crisis. More specifically, the recent disclosure that the CVS across the street received more pain pills - 6.4 million - over a seven-year period than any other drugstore in Cuyahoga County.
"Location, location, location," said Mike Gorman, 37, who was drinking and hanging out with friends. "It's right near the highway, which makes it easy to access" from Cleveland.
And there was the homeless encampment just beyond the CVS, over by the train tracks, behind the strip mall. It's popular with heroin users, the regulars at the sports bar said.
"It's a terrible thing, but I don't blame CVS," Gorman said, given the money to be made by pharmaceutical companies that sold the drugs and encouraged doctors to overprescribe.
The CVS in this white working-class suburb of Cleveland is a three-hour drive and, culturally, even further from the southern Ohio section of Appalachia that has become widely associated with the opioid epidemic.
But last week's revelation that drug companies saturated the United States with 76 billion pain pills over seven years shows that no corner of the country escaped the drug crisis. Two other drugstores in this city of 80,000 placed second and fifth on the Drug Enforcement Administration's list of Cuyahoga County locations. Wholesalers shipped opioids at 5.4 million and 3.7 million doses, respectively, to those. The list was disclosed by The Washington Post and HD Media last week.
Cuyahoga County and nearby Summit County soon will be at the center of the most important legal test of how much responsibility drug companies bear for the opioid epidemic. Barring a settlement, the two counties are scheduled to go to trial in October as the first case among the consolidated lawsuits brought by about 2,000 cities, counties, Native American tribes and other plaintiffs.
U.S. District Judge Dan Polster, who is presiding over the consolidated case in Cleveland, selected the counties to represent the legal arguments that other plaintiffs have made. The two counties are asking for billions of dollars from companies to help stem the crisis.
In a statement to The Post on Sunday, Mike DeAngelis, senior director for corporate communications at CVS, defended the company's actions.
"In the period of time covered by the ARCOS data (2006-2012), our shipments of hydrocodone combination products comprised only 2% of the prescription drugs we shipped to our pharmacies," he said. "As soon as the DEA reclassified these drugs as Schedule II in October 2014, we stopped distributing them immediately.
"The DEA possesses data on every single shipment of hydrocodone combination products we shipped to our pharmacies. It did not identify a single shipment to a single CVS Pharmacy in Cuyahoga or Summit Counties as improper."
In a court filing released Friday, lawyers for the two counties accuse some of the biggest names in the drug industry of creating a "public nuisance" that endangered the health of residents by failing to control the drug flow, even when they knew, or should have known, that some painkillers were being diverted to illegal use.
"There can be little doubt that the opioid crisis - the epidemic of opioid availability and use - significantly interferes with the public health and constitutes a public nuisance in both Cuyahoga and Summit counties," they argued in a request that Polster rule in their favor on that issue even before trial.
To bolster that argument, they offered an array of statistics that may be critical in the case. In 2016, they said, the death rate from pharmaceutical opioids in Cuyahoga County was 3.26 times higher than the national average. In 2017, county emergency rooms treated an estimated 9,191 people with drug-related health problems, a 21 percent increase over the previous year.
As the government cracked down on the diversion of pills to the black market, heroin and fentanyl took their place. By March 2016, two people died of a heroin or fentanyl overdose in Cuyahoga County every day, the lawyers alleged.
In Summit County, whose biggest city is Akron, the surge in overdose deaths was so rapid that the county medical examiner brought in a mobile morgue in 2017 to handle the bodies, the plaintiffs wrote.
The rate of infants born addicted to opioids there rose from 2.9 per 1,000 births between 2004 and 2008 to 13.6 per 1,000 births between 2011 and 2015, they alleged.
The defendants in the case include giant drug distribution companies such as McKesson, Cardinal Health, AmerisourceBergen, Walgreens and Walmart, and manufacturers such as Purdue Pharma and Mallinckrodt.
The companies have generally blamed the epidemic on overprescribing by doctors, overdispensing by pharmacies and on drug abuse by customers. The companies say they were working to supply patients in desperate need of pain relief with legal, highly regulated drugs.
"We maintain stringent policies, procedures and tools to help ensure that our pharmacists properly exercise their professional responsibility to evaluate controlled substance prescriptions before filling them," DeAngelis, the CVS spokesman, said Sunday. "Keep in mind that doctors have the primary responsibility to make sure the opioid prescriptions they write are for a legitimate purpose.
"Over the past several years, we have taken numerous actions to strengthen our existing safeguards to help address the nation's opioid epidemic that has resulted in a 30% reduction in the amount of controlled substances that our retail pharmacies dispense."
The public nuisance argument is the same one made by the state of Oklahoma in a seven-week trial against Johnson & Johnson that concluded last week. The state asked a judge to make the company pay as much as $17.5 billion over 30 years to clean up the drug crisis. Cleveland County District Judge Thad Balkman said he would rule around the end of August.
Another 48 states have sued drug companies and are lined up behind Oklahoma in a legal track that runs parallel to the enormous federal "multi-district litigation" in Ohio.
The intersection where CVS and Knuckleheads sit is typical for the outskirts of Cleveland, whose border is just a few hundred feet away. It has strip malls occupied by discount stores, and a mom-and-pop lunch counter threatened by the Burger King down the road.
Knuckleheads itself, like its patrons, appears transported here from Cleveland in the exodus to the suburbs that began decades ago. It is a squat stone building with signs promising cheap domestic beer, bar food and a Cleveland Indians game on TV. The men inside drain pints of Budweiser and Miller Lite between smoke breaks in the alley behind a black metal side door.
The pharmacist on duty at the CVS on Saturday declined to comment on the volume of pills sold there, citing company policy.
But Frank Cimperman, 58, Knuckleheads' owner, said he believes "it's only number one because of the highway, and because you can get a prescription filled there 24 hours a day."
Drugstores with easy access to highways have drawn authorities' interest in the past, including two CVS stores in Sanford, Florida, that were raided and shut down by the DEA in 2012.
At a Rite Aid in the Clark-Fulton neighborhood of Cleveland, an inner-city community of low-income whites and Hispanics, pharmacy manager Ben Swartz was surprised to learn that his branch ranked third in Cuyahoga County on the DEA database.
"Wow," said Swartz, whose store received 4.8 million pills between 2006 and 2012. But he said he is confident that in recent years stricter practices have been put into place.
"We vet all the prescriptions that come in here," he said. Extra measures, including verifying diagnoses with doctors, are used for about 1 in 10 prescriptions, he said.
"We look for prescribing trends," Swartz said. "If a doctor's giving everyone the same drug in the same quantities, we won't associate with them. We also scrutinize prescriptions for high strength and high quantities, and people using multiple pharmacies and multiple prescribers."
Preliminary data from the U.S. Centers for Disease Control and Prevention released last week showed that drug overdose deaths nationally declined about 5 percent in 2018, the first drop in decades. While deaths from fentanyl are skyrocketing, fatalities from prescription opioids are falling, the data show.
Residents on the blocks surrounding the Rite Aid spoke of a high rate of heroin use in the area. One person, who spoke on the condition of anonymity because he did not want to be identified as disparaging the area, said the sidewalk in front of an abandoned factory a block south was a "shooting gallery" until two years ago.
"We used to find hundreds of needles on the sidewalk here," he said. "But I haven't seen any in two years, so I think it's getting better."
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The Washington Post's Steven Rich contributed to this report.