Expedited Removal is Not the Answer to the Backlog
With the immigration court backlog at over 600,000 cases and rising, immigration law commentator (and fellow BIA alum) Nolan Rappaport recently suggested that the present administration might view the increased use of expedited removal as “the only viable alternative” to shrink the swelling tide of cases. My fellow blogger Paul Schmidt has opposed such approach; I wish to join him in adding my arguments as to why the expansion of expedited removal would be unacceptable.
If the criminal court system were to be flooded to the breaking point, the solution could not be to let supervisory police officers decide which defendants might have a reasonable enough chance of being found innocent and get to go to court, and just find the rest guilty without the right to a trial. However, that is pretty much the premise of expedited removal. An overwhelming volume of cases cannot be used to justify the stripping away of due process protections.
Our immigration courts have evolved significantly over the decades. Deportation hearings were once conducted by “special inquiry officers,” who were attorneys working for the INS. Beginning in 1973, immigration judges began presiding over hearings. In 1983, those judges were separated from the INS into a separate adjudicatory agency, EOIR. In 2002, INS was moved into three components within the newly-created DHS, while EOIR remained in the Department of Justice. The strong motive behind these developments was that the agency charged with enforcement was not suited to serve as a neutral factfinder and decision maker. Increasing the scale of expedited removal would undo the above progress and return decision-making into the hands of the enforcement branch – the legal equivalent of having the fox guard the hen house.
Immigration judges render decisions independently, with no pressure or influence from their higher-ups. This is not true of asylum officers. I had one case years ago in which the asylum officer’s supervisor so adamantly opposed the grant of asylum that the officer had to wait until the supervisor went on vacation, and then had the acting supervisor sign off approving the grant. I have also heard of an asylum office director pressuring the staff to grant fewer cases in order to bring the office’s grant rate closer to the lower grant rate of another asylum office. Furthermore, to the extent that those seeking expedited removal are able to obtain counsel in the short time frame provided (and while detained, sometimes in remote settings), asylum officers allow attorneys a greatly reduced role in the process. In immigration court, the attorney makes legal arguments and objections, questions the respondent, and lays the foundation for documents to be offered into evidence. Even in full asylum office interviews, attorneys are relegated to sitting in the back row and taking notes. As the government’s own statistics show that represented asylum seekers are twice as likely to be granted relief, the asylum office’s minimizing of the attorney’s role clearly lessens the asylum seeker’s chance of success.
Expedited removal has really never worked well. In opposing its implementation in the mid-1990s, myself and other advocates argued that the legal threshold – the newly-created “credible fear” standard – was problematic. When the 1980 Refugee Act adopted the legal standard of “well-founded fear” for asylum claims, INS interpreted the term to mean “more likely than not;” it took seven years of litigation and a decision of the U.S. Supreme Court to correctly define the standard as requiring only a 10 percent chance of persecution. But expedited removal asked us to trust the same INS to properly interpret the vague new “credible fear” standard, and this time without the right to seek judicial review. Not surprisingly, so many mistakes were made after the standard was implemented that by mid-1997, the then INS director of asylum instructed asylum officers to simply find all applicants professing a fear of persecution to have met the credible fear standard. Those who claimed no fear in their countries were summarily removed; INS claimed that the majority of arrivees were in this latter group.
But where they really? A person arriving in this country only gets a credible fear interview if they indicate to the Customs and Border Patrol (CBP) officer who first encounters them that they fear return to their country. Two studies conducted over a decade apart by the U.S. Commission on International Religious Freedom, a government entity, found serious problems with the screening process of those arriving but not found admissible to the U.S. According to USCIRF, some arrivees were never asked whether they feared return; others who were asked and responded in the affirmative had “no” recorded in their statements, which were often not read back to them. The USCIRF report cited instances in which those wishing to seek asylum were pressured into signing inaccurate statements, or even into retracting their fear claims and withdrawing their applications for admission.
The answer to the immigration court backlog is clearly not to subject more people to the flawed and biased expedited removal system in lieu of removal hearings. To my knowledge, every other high volume court employs prosecutorial discretion and stipulated settlements to lessen the case load. Plea bargains are employed in everything from murder to traffic court cases. Under the Obama administration, prosecutorial discretion was employed in immigration court and significantly helped prosecutors and judges deal with the caseload. For unknown reasons, the present administration has ended this useful practice. DHS attorneys are also being instructed to oppose requests to terminate proceedings made by those wishing to leave the U.S. to attend immigrant visas abroad. These intending immigrants want to leave the country, and will only be allowed to return legally if they are found by a U.S. consular officer to be qualified and admissible to this country; under the prior administration, termination under these circumstances was readily agreed to by DHS. At the same time DHS is forcing so many immigrants to unnecessarily remain in removal proceedings, the agency will not put into proceedings those who want to be there in order to apply for certain types of relief that may only be granted by an immigration judge, such as cancellation of removal. Preventing immigrants from obtaining legal status to which they might be entitled seems suspiciously consistent with the present administration’s desire to stem the pace of naturalization in order to preserve the voting bloc that brought them to office last year.
Copyright 2017 Jeffrey S. Chase. All rights reserved.
The Herston Family Law Group reports:
Facts: Child was born in Guatemala 16 years ago. Child’s father abandoned the family over four years ago. Child’s mother struggled to provide for the family, which forced Child to drop out of school after the sixth grade because his mother was too poor to pay for him to continue. After dropping out of school, Child worked in the cornfields. Child’s family ate once or twice a day and typically ate only the corn they grew.
In 2015, Child left Guatemala and traveled to the United States, where he was apprehended by immigration authorities. He was placed in the temporary custody of his paternal uncle in Tennessee. Child has lived in Tennessee since that time, and has been enrolled in school in Tennessee.
In 2016, Child’s uncle petitioned for the appointment of a guardian for Child requesting, among other things, a specific finding regarding whether it is in Child’s best interest to be returned to Guatemala.
After hearing, the trial court found that both of Child’s parents had willfully abandoned Child. The trial court refused, however, to make a finding as to whether it was in Child’s best interest to be returned to Guatemala because the trial court ruled that it lacked jurisdiction to make such a determination.
Child’s uncle appealed.
On Appeal: The Court of Appeals reversed the trial court.
Some children present in the United States without legal immigration status are in need of humanitarian protection because they have been abused, abandoned, or neglected by a parent. Special Immigrant Juvenile (“SIJ”) status is an immigration classification that may allow for these vulnerable children to immediately apply for lawful permanent resident status, i.e., a “green card.”
A child cannot apply for SIJ status without an order from the juvenile court that contains factual findings based on state law about the abuse, neglect, or abandonment, family reunification, and the best interest of the child. It should be noted, however, that the state court order does not grant SIJ status or a “green card”; only federal immigration authorities can grant or deny these benefits.
The state-court proceeding is just the first step of a three-step process to obtain a green card. Once the state court has made the specific findings, the child can apply to federal authorities for SIJ status. If SIJ status is granted, then the third step is applying for a green card.
The Court determined that the Tennessee trial court had jurisdiction to make the finding as to whether it is in Child’s best interest to be returned to Guatemala:
[T]he trial court had jurisdiction to hear the Petition for Appointment of Guardian pursuant to Tennessee Code Annotated § 34-to-101.
* * * * * *
In the case now before us, [federal law] establishes that in order to apply for special immigrant juvenile status, the Minor must have, among other things, an order from a Tennessee court placing him in the custody of an individual appointed by the court, a determination that reunification with his parents is not viable due to abandonment [or other possible grounds] as found under Tennessee law, and a determination that it would not be in the Minor’s best interest to be returned to Guatemala. The trial court’s Order Appointing Guardian appointed the Minor’s uncle [as the] guardian of the Minor, placed the Minor in the custody of the Minor’s uncle, and found that reunification of the Minor with his parents was not viable due to willful abandonment. The trial court, however, failed to make a finding with regard as to whether it is in the best interest of the Minor to be returned to Guatemala. We note . . . that making such finding does not guarantee that the Minor will be granted special immigrant juvenile status. This finding, however, is a required predicate for the Minor to apply for such status.
The Petition for Appointment of Guardian properly contained a request seeking a finding regarding whether it is in the Minor’s best interest to be returned to Guatemala. We find and hold the trial court had jurisdiction to make this requested finding.
Thus, the case was remanded to the trial court to determine whether it is in Child’s best interest to be returned to Guatemala.
Information provided by K.O. Herston: Knoxville, Tennessee Divorce and Family-Law Attorney.”
In one of my long past lives, private practice, I had some role in the legislation that created the Special Immigrant Juvenile “SIJ” status. This seems one of the most appropriate uses of the law ever! Saving young lives, getting them green cards, and building a better future for America, one case at a time! Can’t get much better than that!
Thanks so much to the always wonderful Roxanne Lea of Richmond, VA for sending this to me!
Bernice Yeung writes in Reveal:
. . . .
“A Pennsylvania judge and the U.S. Citizenship and Immigration Services, a branch of the Department of Homeland Security, have decided that V.G. deserves to stay in the United States.
But another arm of department, Immigration and Customs Enforcement, says he must go. And, under what’s known as “expedited removal,” immigration officials can skip the traditional removal process in front of immigration judges.
Instead, officials are given wide latitude to deport migrants under expedited removal, if those migrants are captured within 100 miles of the U.S. border, have been in the country for less than two weeks and don’t have valid travel documents.
Under this deportation regime, the U.S. government has freedom to deport migrants like V.G. and his mother – who were found soon after they crossed the border without immigration papers – with little due process and limited ways for migrants to contest the order.
Created in 1996, the expedited removal policy has been controversial since the start. Those who seek to tighten the borders laud the policy for its efficiency and for promoting deterrence. But immigrant and asylum advocates say that it lacks checks and balances and gives too much discretion to border patrol agents.
But it’s a policy susceptible to errors without a meaningful process to correct them.
Once an immigration official has placed a migrant into expedited removal, there are few ways to contest it. People who can show they are authorized to live in the country are able to challenge expedited removal in federal court. Asylum-seekers also have a chance to make a case that they have a fear of returning to their home countries, but they cannot appeal an unfavorable decision.
Everyone else is returned to their home countries as quickly as possible. They are then barred from returning to the United States for five years.
The U.S. Commission on International Religious Freedom, which has observed expedited removal proceedings since 2005, has found “serious flaws placing asylum seekers at risk of return to countries where they could face persecution.” The ACLU has also documented a case of an asylum-seeker who was quickly deported, only to be raped after she was sent back across the southern border.
Multiple U.S. citizens have been accidentally deported through expedited removal. Foreign workers and tourists with valid visas have also been turned away, prompting a judge to write in a 2010 decision that the expedited removal process is “fraught with risk of arbitrary, mistaken, or discriminatory behavior.”
Nonetheless, various courts across the country have agreed that the law is clear: The courts cannot intercede in expedited removal cases, even if there’s a reason to believe the outcome was unjust.
This has put kids like V.G. in legal limbo, stuck between two competing government mandates. They have a special status to stay in the United States. At the same time, the Department of Homeland Security says it has the authority to deport them.
Immigration officials declined to comment on pending litigation. But in court documents filed in V.G.’s case, the government says the children’s deportation orders are final and their special status doesn’t change things, especially since they have not yet received their green cards.
V.G.’s attorneys argue, among other things, that a federal court has previously required the government to revisit the deportation orders of children once they’re granted the humanitarian status.
That requirement, they say, also extends to expedited removal cases.”
. . . .
In addition to being bad policy, this clearly isn’t due process! It’s time for Federal Judges get out of the ivory tower and start enforcing the requirements of our Constitution! Assuming that recent arrivals apprehended at the border with no claim to stay in the U.S. might not get full judicial review (a proposition that I question), these kids are different, having been approved for green cards and merely waiting in line of a number to become available in the near future. In the past, the policy of the DHS has invariably been to allow such individuals to remain in the U.s. pending availability of a visa number — even when that process might take years.
Thanks much to Nolan Rappaport for spotting this item and forwarding it to me!
Nolan “Eagle Eyes” Rappaport kindly alerted me to this comprehensive source of USCIS immigration and citizenship data:
Additionally, Dan “Mr. Blog” Kowalski over at Lexis was kind enough to send me this like to a nationwide “Travel Ban” Litigation Database from “Lawfare,” helpfully organized by Circuit:
Check both of these out! Thanks again to Nolan and Dan for their tireless efforts to promote an informed approach to immigration law and policy!
“And the government’s interpretation is inconsistent with the TPS statute’s purpose because its interpretation completely ignores that TPS recipients are allowed to stay in the United States pursuant to that status and instead subjects them to a Rube Goldberg-like procedure under a different statute in order to become “admitted.” According to the government, an alien in Ramirez’s position who wishes to adjust his status would first need to apply for and obtain a waiver of his unlawful presence, which he could pursue from within the United States. See Provisional Unlawful Presence Waivers of Inadmissibility for Certain Immediate Relatives, 78 Fed. Reg. 536-01, 536 (Jan. 3, 2013). Assuming that Ramirez demonstrates “extreme hardship” to his U.S. citizen wife and the waiver is granted, see 8 U.S.C. § 1182(a)(9)(B)(v), he would then need to exit the United States to seek an immigrant visa through processing at a U.S. embassy or consulate in another country. Such processing usually takes place in the alien’s home country—in this case, the country that the Attorney General has deemed unsafe— though it can occur in another country with approval from the Department of State and the third country. See 22 C.F.R. § 42.61(a). If he obtains the visa, Ramirez could then return to the United States to request admission as a lawful
permanent resident. To be sure, other nonimmigrants must leave the country to adjust their status, see 8 U.S.C. § 1255(i), but the invocation of these procedures in other circumstances does not undercut the clear language of the TPS statute on the “admitted” issue, and the convoluted nature of the government’s proposal underscores its unnatural fit with the overall statutory structure.
In short, § 1254a(f)(4) provides that a TPS recipient is considered “inspected and admitted” under §1255(a). Accordingly, under §§ 1254a(f)(4) and 1255, Ramirez, who has been granted TPS, is eligible for adjustment of status because he also meets the other requirements set forth in § 1255(a). USCIS’s decision to deny Ramirez’s application on the ground that he was not “admitted” was legally flawed, and the district court properly granted summary judgment to Ramirez and remanded the case to USCIS for further proceedings.”
Although the 9th Circuit’s decision makes sense to me, and is consistent with a previous ruling by the 6th Circuit, the court notes that the 11th Circuit agreed with the DHS position. Consequently, there is a “circuit split,” and this issue probably will have to be resolved by the Supremes at some future point.
I had this argument come up before me in the Arlington Immigration Court. After conducting a full oral argument, I ruled, as the 9th Circuit did, in favor of the respondent’s eligibility to adjust. While the DHS “reserved” appeal, I do not believe that appeal was ever filed.
One of the things I loved about being a trial judge was the ability to hear “oral argument” from the attorneys in every merits case where there was an actual dispute.