THE HILL: Nolan Says That Expedited Removal Can “Ease The Burden” Of Immigration Detention; I Don’t Think So!

http://thehill.com/opinion/immigration/365829-expedited-removal-can-solve-concerns-with-immigration-detention

Nolan Rappaport writes at The Hill:

“Earlier this month, the DHS Office of Inspector General (IG) released a report on “Concerns about ICE Detainee Treatment and Care at Detention Facilities.” According to the ACLU, the way to address the violationsdescribed in this “damning new report” is to “release people from immigration detention and prohibit ICE from using dangerous and inhumane jails.”

The IG found problems at four of the five detention centers it inspected, but it is a stretch to call the report “damning” or to claim that ICE is “using dangerous and inhumane jails.” Many of the problems were relatively minor, and, apparently, all of them are going to be corrected.

In addition to federal service centers, ICE uses facilities owned and operated by private companies and state and local government facilities. The contracts of facilities that hold ICE detainees require them to adhere to the 2000 National Detention Standards, the 2008 Performance-Based National Detention Standards (PBNDS), or the 2011 PBNDS.

. . . .

The immigration court backlog is so long that, as of October 2017, the average wait for a hearing was 691 days, and Trump’s backlog reduction plan isn’t going to bring it under control.

ICE cannot release detainees because wait-times are too long. Many of them will not return for their hearings. During FY2015, 23.4 percent of the aliens who were released from custody did not return for their hearings, and releases were limited to cases in which there was reason to expect the aliens to return.

I see only two solutions, reduce the backlog by removing aliens from the immigration court and disposing of their cases in expedited removal proceedings, which do not require a hearing before an immigration judge, or have a large legalization program.

Which alternative do you expect the Republicans to choose?”

*******************************************

Go on over to The Hill to read Nolan’s complete article.

Why Expedited Removal Isn’t the Answer (Leaving Aside The Substantial Legal and Moral Issues Involved):

  • Under Trump, DHS has already “maxed out” the use of expedited removal at the border. 
  • While Trump’s Executive Order called for an expansion of expedited removal to individuals who have been in the country for less than two years, that requires a regulatory change which, curiously, the DH’s has failed to accomplish in the nearly one year since the Executive Order.
  • Even with expedited removal expanded to two years, the vast majority of individuals comprising the “court backlog” have been there at least that long and therefore wouldn’t be candidates for expedited removal.
  • Of those limited number who have been in the U.S. for less than two years, many have already passed “credible fear” or “reasonable fear” and are, therefore, entitled to Individual hearings.
  • Some of those removed from the docket for expedited removal could still pass the “credible fear” or “reasonable fear” process before the Asylum Office and have their cases restored to the Immigraton Court docket (with an entirely new proceedings that would have to “start from scratch”).
  • Under BIA rulings, once proceedings have commenced before the Immigration Court, the DHS can’t unilaterally remove them from the court’s docket for expedited removal. It requires a DHS motion to terminate, a chance for the respondent to be heard in opposition, and a decision  by the Immigration Judge. Given the administrative mess at both EOIR and DHS Chief Counsel, filing and responding to those motions can be an administrative problem. Moreover, although almost all motions to terminate for expedited removal ultimately are granted by the Immigraton Judges, the termination is a “final order” subject to appeal to the BIA.
  • Individuals placed in expedited removal whose “credible fear’ or “reasonable fear” claims are rejected, have a right to expedited review before an Immigraton Judge. Such reviews generally take precedence over other types of cases, but do not produce “final orders” from the Immigraton Judge. At some level, ratcheting up the expedited removal process actually inhibits the processing of previously scheduled cases before the Immigration Court.

What Does Work:

  • Alternatives to Detention (“ADT) such as ankle bracelet monitoring. See, e.g.,  http://lirs.org/wp-content/uploads/2017/06/The-Real-Alternatives-to-Detention-FINAL-06.27.17.pdf   
  • Government statistics show that juveniles with lawyers appear for their hearings over 95% of the time! See, e.g.https://www.justice.gov/eoir/file/852516/download
    • Recent studies of results of The New York Immigrant Family Unity Project, which guarantees lawyers to respondents, showed that such represented individuals were 12 times more likely to win their cases. See https://www.vox.com/policy-and-politics/2017/11/9/16623906/immigration-court-lawyer
    • This strongly suggests that immigration hearings conducted for unrepresented individuals are inherently unfair and a denial of due process, something that should be (but isn’t) the number one concern of the DOJ and EOIR.
    • My own experience at the Arlington Immigration court was that individuals 1) represented by counsel , and 2) with applications for relief filed showed up for their hearings nearly 100% of the time. Indeed, beyond criminal record and family ties, those were the two most significant factors for me in setting immigration bonds.

An Administration truly interested in improving the performance of the Immigration Courts, achieving due process, and lessening the need for immigration detention would be working closely with NGOs, bar associations, states and localities, and ADT providers to develop cooperative  ways of maximizing representation in Immigraton Court, But, this Administration is far more interested in advancing a xenophobic, White Nationalist agenda than it is in fairness, due process, or solving problems.

PWS

12-23-17

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Nolan Rappaport
Nolan Rappaport
6 years ago

Before addressing Paul’s comments, I want to point out that I did not recommend expedited removal proceedings. I said that I can only think of two things that would work, expedited removal proceedings and a large legalization program.

Paul gives the following reasons for saying that Expedited Removal Isn’t the Answer:

• “While Trump’s Executive Order called for an expansion of expedited removal to individuals who have been in the country for less than two years, that requires a regulatory change which, curiously, the DH’s has failed to accomplish in the nearly one year since the Executive Order.”

Trump doesn’t have the personnel and other resources yet that are needed for a large scale, nation-wide, expanded expedited removal program. Let’s wait until he has his budget for the coming fiscal year and see what he does.

• “Even with expedited removal expanded to two years, the vast majority of individuals comprising the “court backlog” have been there at least that long and therefore wouldn’t be candidates for expedited removal.”

I don’t know where Paul gets that information from, which makes it difficult to evaluate it. In any case, it’s a two-edged sword. Aliens who establish more than two years of presence will be barred from applying for asylum, which is probably the only relief available to most of them. Remember, EOIR is run by Sessions, and he is putting pressure on the judges to move cases as quickly as possible.

Also, does the clock keep running on the two years after an alien has been arrested and put in detention pending a removal hearing? I don’t think so, but I am just guessing. Maybe Paul can shed some light on that issue.

• “Of those limited number who have been in the U.S. for less than two years, many have already passed “credible fear” or “reasonable fear” and are, therefore, entitled to Individual hearings.”

When did they do it? If it wasn’t recently, they could be required to establish that they still have a credible fear, which won’t be as easy this time. At some point in the distant past, aliens who were granted asylum had to prove at the end of their first year here that they still had a well-founded fear of persecution. I don’t know what happened to that requirement.

• Some of those removed from the docket for expedited removal could still pass the “credible fear” or “reasonable fear” process before the Asylum Office and have their cases restored to the Immigraton Court docket (with an entirely new proceedings that would have to “start from scratch”).

Paul seems to be unwilling to accept the fact that things have changed under Trump and Sessions. Asylum officers won’t be finding credible fear as often now.

• “Under BIA rulings, once proceedings have commenced before the Immigration Court, the DHS can’t unilaterally remove them from the court’s docket for expedited removal. It requires a DHS motion to terminate, a chance for the respondent to be heard in opposition, and a decision by the Immigration Judge. Given the administrative mess at both EOIR and DHS Chief Counsel, filing and responding to those motions can be an administrative problem. Moreover, although almost all motions to terminate for expedited removal ultimately are granted by the Immigraton Judges, the termination is a “final order” subject to appeal to the BIA.

Everyone involved is going to be subject to a mandate to move cases as quickly as possible. I don’t think we can assume that BIA precedents and procedural rules will remain unchanged.

• “Individuals placed in expedited removal whose “credible fear’ or “reasonable fear” claims are rejected, have a right to expedited review before an Immigraton Judge. Such reviews generally take precedence over other types of cases, but do not produce “final orders” from the Immigraton Judge. At some level, ratcheting up the expedited removal process actually inhibits the processing of previously scheduled cases before the Immigration Court.”

That review is of the notes that the asylum officer takes when he rejects the credible fear claim. My guess is that judges only take a few minutes to review the notes, and there is no appeal. I don’t know what Paul is getting at with the final order point. In expedited removal proceedings, the game is over when a judge glances at the notes and agrees with the asylum officer.

This is what Paul says would work:

• Alternatives to Detention (“ADT) such as ankle bracelet monitoring. See, e.g., http://lirs.org/wp-content/uploads/2017/06/The-Real-Alternatives-to-Detention-FINAL-06.27.17.pdf

I would like to see more alternatives to detention being used on more than a limited basis, but it hasn’t happened yet. No reason to expect it to happen now.

• “Government statistics show that juveniles with lawyers appear for their hearings over 95% of the time! See, e.g., https://www.justice.gov/eoir/file/852516/download
• Recent studies of results of The New York Immigrant Family Unity Project, which guarantees lawyers to respondents, showed that such represented individuals were 12 times more likely to win their cases. See https://www.vox.com/policy-and-politics/2017/11/9/16623906/immigration-court-lawyer
• This strongly suggests that immigration hearings conducted for unrepresented individuals are inherently unfair and a denial of due process, something that should be (but isn’t) the number one concern of the DOJ and EOIR.”
When cases start moving quickly, there will be more of them and fewer with lawyers. And arguing that it is unfair to put juveniles through proceedings without lawyers is a waste of time. It isn’t required by law, precedent, or regulation; and the emphasis will be on moving cases through as quickly as possible.”

“An Administration truly interested in improving the performance of the Immigration Courts, achieving due process, and lessening the need for immigration detention would be working closely with NGOs, bar associations, states and localities, and ADT providers to develop cooperative ways of maximizing representation in Immigraton Court, But, this Administration is far more interested in advancing a xenophobic, White Nationalist agenda than it is in fairness, due process, or solving problems.”

Paul isn’t focussing on the problem the Administration is addressing, which is a 650,000 case immigration court backlog with an average wait time for a hearing of 691 days, and those figures are increasing at a rapid rate. That’s what he needs to discuss if he wants anyone in a position to change the way things are being done to pay attention to him.

Saying, “this Administration is far more interested in advancing a xenophobic, White Nationalist agenda than it is in fairness, due process, or solving problems,” sounds good to people who feel the same way, but it is just sound and fury, signifying nothing (But I am NOT suggesting that it is a tale told by an idiot, which is where Shakespeare went with that line.)

It accomplishes nothing.

Nolan Rappaport
Nolan Rappaport
6 years ago

Paul says, “Once someone has passed credible fear or reasonable fear, they are “in” the Immigration Court system. There is no process for constantly resubjecting them to credible fear Interviews.”

But is EOIR prohibited from creating such a process? Incidentally, it would only have to be a one-time review to achieve the objective of removing aliens in expedited removal proceedings who do not have a credible fear of persecution.

Paul says, “Under evolving case law in the 9th, 4th, and other Circuits that I have discussed previously in this blog, more individuals are likely to be able to fit the “changed circumstances” exception based on more recent developments in Their native countries that strengthen their claims. In any event, a number of those who don’t make the one year bar will, nevertheless be able to show a “reasonable fear” of persecution for withholding of removal or CAT. They would be entitled to “Withholding Only” or “CAT Only” only hearings before an Immigration Judge.”

Isn’t asylum discretionary? Can’t the United States opt to stop granting it until the immigration court backlog crisis has been resolved? And wouldn’t the gov’t be able to satisfy requests for withholding or CAT by sending the applicants to a refugee camp for processing by the UNHCR?

Paul says, “There are NO “quick fix” gimmicks that will fix the current mess in the Immigration Courts. And it most certainly can’t be done by someone like Sessions who neither understands how the system works nor has the sense of justice and perspective necessary to fix it.”

Sessions is the Attorney General. It is unlikely that he is personally involved in handling any of these issues.

Paul may be right about quick fixes, but he doesn’t seem to be taking the need for such a fix into account. The gov’t has to be able to deport the removable aliens they arrest in a reasonable amount of time to be able to enforce the immigration laws of this country.

My prediction. When it becomes apparent that Session’s plan for bringing the backlog under control isn’t going to work, the Administration will find an effective way of doing it. Expedited removal proceedings is just one possibility. Will the circuit courts intervene? Probably, but if the alternative is suspending the enforcement of our immigration laws for three to six years, they will have difficulty justifying their interference. And the supreme court probably will have several Trump appointees by then

Nolan Rappaport
Nolan Rappaport
6 years ago

Can anyone suggest a better way to eliminate the immigration court backlog quickly?