Nolan writes:
“Knowing that an alien in the United States who is charged with being deportable has a statutory right to a hearing before an immigration judge and that there is a backlog crisis in our immigration courts, I predicted that President Donald Trump would not be able to deport millions of undocumented immigrants.
Since then, the backlog has gotten even higher. As of the end of January 2017, it was 542,411 cases and the average wait time for a hearing was almost 700 days.
Even if the immigration judges did not receive any additional cases, it would take them more than two-and-a-half years to catch up.
But President Trump has finessed his way around this problem by implementing a little-known expedited removal provision in his executive order (EO), “Border Security and Immigration Enforcement Improvements.” The provision is section 235(b)(1)(A)(iii)(II) of the Immigration and Nationality Act (INA).
The Illegal Immigration Reform and Immigrant Responsibility Act of 1996 established expedited removal proceedings to deal with fraud and willful misrepresentations at ports of entry and to stop aliens with bogus asylum claims from being admitted for asylum hearings before an immigration judge. Many of them absconded instead of appearing at their hearings.
Under expedited removal proceedings, which are conducted by immigration officers, an alien who lacks proper documentation or has committed fraud or willful misrepresentation of facts to gain admission into the United States is inadmissible and may be removed without a hearing before an immigration judge. Aliens subject to expedited removal must be detained until they are removed and normally may only be released due to a medical emergency.”
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I agree with Nolan that the intent of the Trump Executive Order is to reduce the number of individuals who will be entitled to “full” removal hearings before an Immigration Judge. But, even if the Administration applies expedited removal in its broadest permissible form under the statute — to individuals who have been in the U.S. for less than two years, the vast majority of individuals in the U.S. without documentation will still be entitled to hearings in U.S. Immigration Court.
First, for a number of reasons, and quite contrary to the Trump Administration’s alarmist rhetoric, illegal entries have been declining over recent years. The overwhelming number of the estimated 11 million undocumented migrants in the U.S have been here at least two years and would therefore be entitled to full hearings.
The estimated number of undocumented migrants in the United States has actually dropped by one million, from approximately 12 million around 2007 to approximately 11 million today. And, although neither the Trump Administration nor most Republican legislators are willing to admit it, at least some of the credit belongs to the Obama Administration for increased border enforcement.
Moreover, the bulk of the undocumented arrivals over the past several years have been children, women, and families fleeing violence and corruption in the Northern Triangle of Central America. Most turn themselves in to the authorities at the border or shortly after crossing the border and seek asylum. The majority of those have been determined to have a “credible fear” of persecution and therefore have already been placed in removal proceedings.
As Nolan points out in his article, individuals who have not applied for asylum within one year of entry are prima facie barred from seeking asylum. However, there are exceptions to this rule for those who can demonstrate fundamentally changed circumstances or extraordinary circumstances directly related to the delay in filing.
Perhaps even more significantly, the one year bar does not apply to claims for protection under the withholding of removal provisions of the Immigration and Nationality Act, nor does it apply to claims under the Convention Against Torture. Other forms of relief under the Act also remain available to individuals who failed to timely file for asylum.
Additionally, even where an individual is subject to “expedited removal” she or he is still be entitled to a full removal hearing before an Immigration Judge if a DHS Asylum Officer finds that such individual has a “credible fear” of persecution.
As Nolan also points out, even where an Asylum Officer finds “no credible fear,” an individual may seek review by an Immigration Judge. Such reviews should take precedence over other types of detained hearings. Consequently, a dramatic increase in “credible fear” denials could well result in Immigration judges spending more time on such hearings and therefore having less time to conduct actual individual hearings on removability and relief.
While to date, the Article III Courts have seemed to accept the statutory limitations on their ability to review expedited removal and credible fear determinations, the Administration’s attempt to “ratchet up” summary removals is almost certainly going to draw more sophisticated constitutional challenges to the process from the advocacy community. And if, as is likely, the Administration “pushes the envelope” by attempting to remove individuals on an expedited basis without giving them a fair chance to obtain evidence that they have been present for two or more years, the Article III Courts are at some point likely to intervene to force at least some procedural due process into the system.
Consequently, notwithstanding efforts by the Trump Administration to circumvent the Immigration Court process, the new enforcement initiatives are still likely to put more than enough new cases before the Immigration Courts to crush an already overwhelmed system.
PWS
02/26/16
Paul says, “illegal entries have been declining over recent years. The overwhelming number of the estimated 11 million undocumented migrants in the U.S have been here at least two years and would therefore be entitled to full hearings.”
No one knows how many illegal entries there are. CBP bases its figures on apprehension rates, not on the number of illegal crossings. And the estimates on the number of undocumented immigrants in the United States aren’t even intelligent guesses. See my article, “Does anyone really know how many undocumented aliens there are?” (Sep. 25, 2016), http://www.huffingtonpost.com/entry/57e41782e4b09f67131e3e7c?timestamp=1474689
But the biggest problem with Paul’s analysis is his assumption that the undocumented aliens who have been in the United States for two years will be able to prove it or anything else for that matter. The Board of Immigration Appeals and the immigration court are not beyond the reach of a conservative administration trying to remove millions of undocumented immigrants. I predict that Sessions will remove liberal board members and immigration judges who seem to him to be stretching the law to help the undocumented immigrants.
The best example is the discrepancy between approval rates in asylum cases. Paul thinks the problem is that too many judges are denying asylum. Do you think that’s the way Sessions will see it?
Consider also that detention is mandatory in expedited removal proceedings, and the dramatic increase in arrests is going to make it impossible to provide appropriate care and detention facilities. When it becomes widely known that very few undocumented immigrants are getting relief from deportation and that they will be detained until they are deported unless they do get relief, many of them will opt to accept deportation without a hearing. See my article, “Deportation Without Due Process?” (September 20, 2016),
http://www.huffingtonpost.com/entry/deportation-without-due- process_us_57e01aebe4b053b1ccf2a109?timestamp=1474391017164
As for the courts, even the 9th circuit has acknowledged that a due process denial is not reversible error unless it changed the outcome of the case. US v. RUFINO PERALTA-SANCHEZ, http://cdn.ca9.uscourts.gov/datastore/opinions/2017/02/07/14-50393.pdf, and very few undocumented immigrants in expedited removal proceedings are going to be able to show a likelihood that they would be able to get relief from deportation if they have a full hearing before an immigration judge. Remember, the high success rate statistics on asylum claims are not going to continue under Sessions.
I would trust the Migration Policy Institute (MPI)/Robert Warren estimate of 10.9 million in 2016. It was based on 2014 Census data. While nobody knows for sure, that certainly hasn’t stopped both sides in the debate from using estimates for planning purposes and argument. Here’s the link.
While I always hope for the best, Nolan is probably correct that the Trump/Sessions DOJ will do its best to truncate due process, particularly for asylum seekers. That’s where the Article III Federal Courts come in.
The last time this happened, during Bush II, the Courts basically resisted, more or less halting the system until the DOJ backed off and made some procedural, substantive, and administrative changes to at least eliminate the worst of the abuses it had encouraged and promoted. And, naturally, the DOJ did this without taking responsibility for the problem — Gonzalez, and to some extent Mukasey, basically blamed the Immigration Judges, the BIA, and EOIR — everybody but the Administration that generated the problems in the first place.
The result, however, was an almost immediate increase in the overall asylum grant rate. And, as I have pointed out before, it wasn’t only the 9th Circuit leading the change; GOP-appointed Court of Appeals Judges in the 7th, 2d, 3rd, 4th, 6th, and even the 11th and some of the more conservative Circuits were very vocal in their criticism of EOIR’s performance and also the DOJ & OILs attempts to “defend the indefensible” in some cases.
Who knows what the future holds? But, we’ve already had some early indications that the Article III Federal Courts are not going to merely “roll over” when the Administration starts “pushing the envelope.”
Best,
PWS
If you think the census data is reliable, please read my article. The census data is worthless as a basis for estimated the undocumented population.
And Paul hasnt responded to my point that mandatory detention will push many undocumented immigrants into accepting deportation to get out of detention. Or to the difficulty they will have in proving things under aconservative Trump administration.
I’d still go with the MPI analysis. It’s the best one we have, and I have no reason to doubt that the undocumented population has at least stabilized and is likely falling. I have always found Robert Warren to be the most reliable of the demographers. Certainly, I’d believe MPI over CIS or any of the “restrictionist” studies.
Yes, I agree with you that detention, particularly in remote locations, has a strong tendency to convince individuals to waive claims and agree to return. I also appreciate that the DHS and the Immigration Courts might impose unreasonable standards of proof.
That’s why I think that in the end it will come down to the Article III Courts. Overall, if the Administration oversteps, I think it is likely that the Article III Courts will intervene to “level the playing field” again in some ways. That’s generally what has happened over the past four decades with Administrations of both parties. Yes, “past performance is no guarantee of future results” — litigation is always somewhat of a “crapshoot.” But, as I have pointed out before, I don’t think this Administration is off to a particularly good start with the Article III Courts. I have been on the “winning” and sometimes “losing” side of literally thousands of court cases. I never found that “poking sharp sticks in the eyes” of the Article III Courts was a very successful strategy. In end, the Article III Courts have the final say.
Best,
Paul
“I’d still go with the MPI analysis. It’s the best one we have, and I have no reason to doubt that the undocumented population has at least stabilized and is likely falling.”
Sure you do. If there is no reliable basis for the 11 million estimate, it doesn’t matter if it is the best we have. Unreliable is unreliable.
“Yes, I agree with you that detention, particularly in remote locations, has a strong tendency to convince individuals to waive claims and agree to return. I also appreciate that the DHS and the Immigration Courts might impose unreasonable standards of proof.”
The standards don’t have to be unreasonable to make it very difficult for unrepresented aliens to succeed in meeting their burden of proof
“That’s why I think that in the end it will come down to the Article III Courts. Overall, if the Administration oversteps, I think it is likely that the Article III Courts will intervene to “level the playing field” again in some ways.”
Why are you are assuming that Trump will go beyond strict application of the law? I don’t think he is going to try to force every undocumented alien out of the country through expedited removal proceedings. His administration will have trouble keeping up with the legitimate cases of people who belong in such proceedings and don’t have a credible fear of asylum or persecution.
“I don’t think this Administration is off to a particularly good start with the Article III Courts.”
I disagree. The 9th circuit appellate decision is extremely weak, even by 9th circuit standards. The judges talked about due process requirements for aliens charged by the DHS with inadmissibility under section 212(a), and the executive order doesn’t use 212(a). It is based on a 212(f) presidential proclamations, which has no charges per se.
What would a judge do if a hearing were to be held? Look at the alien’s passport to see if he is from one of the seven countries? If he is, the fat lady has sung. He is excludable under the proclamation.
“I have been on the “winning” and sometimes “losing” side of literally thousands of court cases. I never found that “poking sharp sticks in the eyes” of the Article III Courts was a very successful strategy. In end, the Article III Courts have the final say.”
I agree with you on this point.
You do have reason to doubt the estimates on the undocumented population. If there is no reliable basis for the 11 million estimate, it doesn’t matter if it is the best we have. Did you read my article in which I explain why the census data is unreliable. Unreliable is unreliable.
The standards don’t have to be unreasonable to make it very difficult for unrepresented aliens to succeed in meeting their burden of proof
As for the Article III courts, why are you are assuming that Trump will go beyond strict application of the law? I don’t think he is going to try to force every undocumented alien out of the country through expedited removal proceedings. His administration will have trouble keeping up with the legitimate cases of people who belong in such proceedings and don’t have a credible fear of asylum or persecution.
I don’t agree with your statement that this Administration isn’t off to a particularly good start with the Article III Courts.”
The 9th circuit appellate decision is extremely weak, even by 9th circuit standards. It is based on an analysis of due process requirements for aliens charged by the DHS with inadmissibility under section 212(a), and the executive order doesn’t use 212(a). It is based on a 212(f) presidential proclamations, which has no charges per se.
What would a judge do if a hearing were to be held? Look at the alien’s passport to see if he is from one of the seven countries? If he is, the fat lady has sung. He is excludable under the proclamation.
I agree with you though that poking sticks in the eyes of federal judges is not the way to get what you want from them. But shouldn’t you be telling that to Trump’s critics too? They keep poking sticks in Trump’s eyes, the media and the angry democrats who want to get him out of office with nonstop complaints to show that he is unfit.
Why would anyone think that he is going to respond well to that approach? He fights back every time he is insulted, and he doesn’t let go of insults very easily. Immigrant advocates are going to pay dearly for treating him that way.
Weak reasoning or not, the Article III courts basically stopped the Trump administration in its tracks on the ill-conceived travel ban. Based on what I’ve seen so far, and their own statements, I have every reason to believe that the trump Administration will push the legal envelope on due process for undocumented individuals. And, that’s likely to cause them some big time problems.
Best,
P
They did stop him…temporarily. We don’t know what he will do with the revised executive order.
I don’t think he was pushing the envelope on due process with the travel ban. Section 212(f) doesn’t include due process provisions. I have asked you several times what would happen if a hearing was held, and you have not answered my question.
You keep calling for due process but you never say what that means when someone is facing exclusion by a presidential proclamation under section 212(f).
And who would conduct the hearing? Immigration judges only have jurisdiction over exclusion based on 212(a) charges.
Are you saying every alien excluded by a 212(f) presidential proclamation should have the right to a hearing before a federal court judge? But even then, what would the judge be deciding? Whether the man’s passport says he is from one of the seven countries?
A constitutional challenge to the statute itself makes sense, but I don’t see how you can say he did anything wrong by using the authority that it gave him. And what would the argument be for voiding 212(f) for being unconstitutional? I think presidents have been using it for more than 50 years….including Obama.