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President Donald Trump set the course with his January 25, 2017, Executive Order on Border Security and Immigration Enforcement Improvements, which says the Secretary of Homeland Security “shall immediately take all appropriate actions to ensure the detention of aliens apprehended for violations of immigration law pending the outcome of their removal proceedings or their removal from the country to the extent permitted by law.”

Those last six words had the potential to be as troublesome as protests in the streets, as courts over the years had put clear limits on when and how long people could be detained.

But a Supreme Court decision this year would appear to permit – or even require – Trump to detain people indefinitely in expedited removal proceedings.

It’s all about process.

Previously, aliens would appear at the border, ask for asylum, and would be allowed into the country to wait for an asylum hearing – often never to be seen again. That’s why expedited proceedings were created in the 1990s.

Behind the Trump order was the notion that the prospect of mandatory detention would deter illegal crossings to seek asylum. Trump called it an end to “catch and release.”

Those who are apprehended at or near the border after making an illegal entry are placed in expedited removal proceedings, in which detention is mandatory. But there’s a caveat: If an asylum seeker can establish a credible fear of persecution, the Board of Immigration Appeals (BIA) has held that mandatory detention no longer applies.

In that case, the asylum seeker is transferred into regular proceedings for an asylum hearing before an immigration judge, and he can be released from custody by the judge.

But the prospect is now on the horizon of asylum seekers remaining in detention regardless of being able to establish a credible fear of persecution.

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Nolan Rappaport was detailed to the House Judiciary Committee as an executive branch immigration law expert for three years. He subsequently served as an immigration counsel for the Subcommittee on Immigration, Border Security and Claims for four years. Prior to working on the Judiciary Committee, he wrote decisions for the Board of Immigration Appeals for 20 years.