Can immigrants be deported without a court hearing?

Story highlights

  • Those who overstay a visa waiver don't have a right to a hearing, ICE says
  • Immigration lawyer: Only 15% of removal cases ever go before a judge
  • The Trump administration says it wants to increase expedited removals

(CNN)Can an undocumented immigrant be kicked out of the United States without a court hearing?

That's a key question at the heart of a controversial case that's become the latest lightning rod in the debate over the Trump administration's crackdown on illegal immigration.
ICE officers detained Daniela Vargas in Mississippi this week after she spoke out about the issue at a news conference. Activists swiftly rallied around Vargas, describing her as a "DREAMer" -- an undocumented immigrant who was brought to the United States as a child.
But according to Vargas' attorneys, authorities are focusing on another aspect of the 22-year-old's case, arguing that she and other members of her family came to the United States as part of a visa waiver program, overstayed their welcome and can now be immediately deported.
While lawyers push for Vargas to have a chance to make her case in court, here's a look at a few larger issues that this case highlights:

Visa waiver program participants who overstay can be swiftly deported.

The visa waiver program allows citizens of certain countries to enter the United States for tourism or business and stay for as long as 90 days.
But remaining beyond that time limit can carry serious consequences.
"You don't get the right to a hearing," said Bryan Cox, a spokesman for Immigration and Customs Enforcement.
That means if you overstay and are apprehended, there's no guarantee you'll get to make your case in court before authorities deport you. But Cox said you could still end up in front of a judge if you're seeking asylum or some other sort of protected status.
Cox declined to discuss the Vargas case. ICE has confirmed Vargas is in custody, describing her as "an unlawfully present Argentinian citizen." The 22-year-old's attorneys say she and her family came to the United States on a visa waiver.
Currently, 38 countries are part of the visa waiver program. US officials removed Argentina from the list in 2002. According to a report from the Congressional Research Service, at that time a growing number of Argentines were using the program as a way to illegally immigrate to the United States, staying past the 90-day limit as the South American country faced a devastating economic crisis.
In a report released last year, the Department of Homeland Security estimated that 153,166 visitors from the visa waiver program overstayed in fiscal year 2015 -- less than 1% of the nearly 21 million participants in the program that year.

Deportations without court hearings are more common than you think.

People who entered with visa waivers and then stayed past the limit aren't the only ones who could face swift deportation if they get detained.
In recent years, immigration authorities have increasingly fast-tracked their efforts to kick certain people out of the United States without court hearings in a process known as "expedited removal."
Only about 15% of the roughly 400,000 people who are removed from the United States each year ever go before a judge, according to Greg Chen, advocacy director of the American Immigration Lawyers Association.
Under the Obama administration, the increasing reliance on expedited removals drew criticism from people on both sides of the immigration debate.
Advocates for stricter immigration enforcement accused the Obama administration of using expedited removal simply to inflate deportation statistics. Immigrant rights advocates also slammed the approach, claiming it trampled the rights of vulnerable people -- some of whom deserved asylum but never had the chance to make their case in court.

The Trump administration plans to use that approach more often.

President Donald Trump's approach to cracking down on illegal immigration is still taking shape. But recently released memos indicate his administration plans to increase the use of expedited removals.
During the Obama administration, the use of expedited removal was limited to undocumented immigrants apprehended within 100 miles of the border who'd been in the United States for less than two weeks.
The Trump administration has indicated it plans to use that approach in far more cases, widening the definition to include undocumented immigrants apprehended anywhere in the United States who've been in the country for less than two years.
In a memo outlining the plan, Homeland Security Secretary John Kelly said a surge of illegal immigration at the southern US border has overwhelmed federal agencies and strained resources, and he pointed to the record-high backlog of pending cases in immigration courts.
The looming change isn't sitting well with immigrant rights activists.
"It's extremely likely that it (expedited removal) will be applied to a much larger swath of people," Chen said. "It's a severe abridgment to kind of a sense of rule of law and fair processes for people if suddenly we have officers and agents picking people up and serving as essentially judge and jury in their case."
If officials increase their use of expedited removals, activists say they are preparing to make their own case in court.
"That's the big issue on the horizon," said Lee Gelernt, deputy director of the national Immigrants' Rights Project at the American Civil Liberties Union. "It hasn't happened yet, but we're keeping a close eye on it."