Alan Gomez

USA TODAY

Former immigration enforcement chiefs are questioning the legality of President Trump's plan to ramp up a program that allows federal agents to quickly deport suspected undocumented immigrants without appearing before a judge.

"Expedited removals" have been in force for 20 years but have only been used against people caught within 100 miles of the U.S.-Mexican border and who are alleged to have entered the country within the previous two weeks.

Now, Homeland Security Secretary John Kelly has ordered an expansion of the program to apply nationwide and for anyone who entered the country within the previous two years.

That expansion threatens the constitutional rights of undocumented immigrants who may get mistakenly deported, warned John Sandweg, who headed Immigration and Customs Enforcement (ICE) under President Obama.

"The Supreme Court has consistently held that even undocumented immigrants are entitled to due process," he said.

Sandweg added that expedited removals have been a valuable tool for immigration agents working near the border when they are dealing with clear-cut cases of illegal entry.

Julie Myers Wood, who headed ICE under President George W. Bush, agreed. She said her team considered expanding expedited removals, but decided against it because of legal concerns. She said other aspects of Trump's tougher immigration enforcement plan also may run afoul of the law.

"Many of these authorities have never been used that way," Wood said. "The administration is really testing the parameters of what's acceptable. There is some litigation risk there."

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Trump laid out his planon Jan. 25, and Kelly issued orders for implementing it Tuesday.

Congress created "expedited removals" in 1996. It allows federal agents to interview each subject to determine if the person should be deported. The agent reviews any documents the person has to establish how long they've been in the country.

If the undocumented immigrant claims fear of persecution or torture if returned to their home country, the agent is supposed to turn them over to U.S. Citizenship and Immigration Services to determine if the detainee has a "credible fear" and should be allowed to apply for political asylum.

The law allows for removal of undocumented immigrants who entered the country within the previous two years. But the Clinton administration limited its use to people caught at ports of entry who had arrived in the previous 14 days. The Bush administration expanded that to people caught within 100 miles of the border, and President Obama maintained that guideline.

Kelly's order said an expansion is necessary because immigration courts are so backlogged it can take up to five years to deport people brought before a judge, creating a "national security vulnerability."

Critics say that approach will rush undocumented immigrants through a process they barely understand without the right to an attorney and few options to appeal their deportation.

The U.S. Commission on International Religious Freedom, an independent commission created by Congress, concluded in a 2016 report that those fears are well grounded. Researchers observed expedited removal proceedings in several states and found that immigration officers frequently skipped legally required steps, which it called an "alarming" trend.

In some cases, agents failed to fully advise detainees of their rights and did not let them review documents they were forced to sign. The commission also found that some agents disregarded immigrants' political asylum claims.

In one case, a man from El Salvador showed an immigration agent a letter from a police officer in his hometown saying he had been threatened by gang members. But the report found that the agent simply kept the letter, which was not used to determine if he should be allowed to seek asylum.

That's why Sandweg and Wood both said it's important for ICE to provide updated training to provide clear guidance on the kinds of documents agents can use to establish how long a person has been in the country. In a statement, ICE said all new deportation officers already undergo a 20-week training course that includes training on expedited removals.

It's unclear how many people could be deported immediately under Trump's plan. The Pew Research Center estimates that 1.5 million undocumented immigrants have been in the U.S. for fewer than five years, but it does not have data on those in the country fewer than two years.

Homeland Security has not yet formally expanded the expedited removal process. It must first publish its new plan in the Federal Register.