Under the Biden administration's logic - not simply the obvious implications of its actions, but it's actual written legal justifications - the next administration doesn't need to place any removable alien who isn't already before an immigration judge into removal proceedings to deport them.
If that's true, why wouldn't Congress reference section 240? If that were Congress's intent, it could simply have added the words "In removal proceedings under section 240 of the Immigration and Nationality Act" after "Pending a decision".
Exclusive procedures- Unless otherwise specified in this chapter, a proceeding under this section shall be the sole and exclusive procedure for determining whether an alien may be admitted to the United States or, if the alien has been so admitted, removed from the United States.
If section 240 proceedings are the "Sole and exclusive procedure for determining whether an alien may be admitted to the United States or, if the alien has been so admitted, removed from the United States", there's no way that, say, President Nikki Haley could simply decide ICE can make the final decision on removals of aliens apprehended and detained under section 236 of the INA. Right?
By statute, if an alien subject to expedited removal asks for asylum, CBP must send that alien to a USCIS asylum officer to determine whether that alien has a "Credible fear of removal", that is, whether the alien may be eligible to be granted asylum.
President Haley's DHS could simply apply this logic to allow ICE officers to decide whether the aliens they apprehend and detain should be removed.
If you want proof, look no further than section 242(f)(1) of the INA, which bars federal courts - except for the Supreme Court - from enjoining any action under part 4 of subchapter II, except with respect to the application of those provisions an individual alien who is in removal proceedings.
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