Getting it Righted: Access to Counsel in Rapid Removals

Abstract

Rapid removals — the catchall phrase for expedited removal, reinstatement of removal, and administrative orders — have been devastatingly efficient, accounting for 76 percent of all removals that have occurred in the past 20 years. That means that 4.2 million people have been ordered out of the country without a hearing, without a judge, without an appeal, and without an attorney. In 2014, President Obama made a political calculus to push asylum seekers, mostly mothers with their children fleeing from Central America, out of the country within 10 to 15 days to deter others from seeking protection in the United States. His ramping up of the rapid procedures, and intentional transformation of detention centers into deportation centers, turned into a well oil machine that the Trump administration is seeking to expand further.

There is much to criticize in the form, purpose, and employment of rapid removals. This Article asks, though, given that rapid removals are part of our foreseeable present, could access to counsel help offset the anti-rule of law tendencies embedded into these procedures?

After surveying the actual process of expedited removal procedures and the documented errors that arise in their current iteration, the Article concludes that the constitution most likely compels concluding that access to counsel is due process right.

Keywords: rapid removals, access to counsel, expedited removals, reinstatement, 235, Obama, Trump, detention, Matthews, removal, deportation, immigration