Castro v. DHS – immigrationcourtside.com

RAY OF HOPE? — 3RD CIR FINDS DUE PROCESS REQUIRES JUDICIAL REVIEW OF DHS ATTEMPTED EXPEDITED REMOVAL OF CHILD GRANTED SIJS STATUS — Issues Preliminary Injunction Against DHS Scofflaws! — Osorio-Martinez v. Attorney General

Osorio-Martinez v. Attorney General, No. 17-2159, June 18, 2008, published

PANEL: AMBRO, KRAUSE, and SCIRICA, Circuit Judges

OPINION BY:

KEY QUOTE:

Petitioners, four children of Salvadoran and Honduran origin and their mothers, appear before us for a second time to challenge their expedited orders of removal. In Castro v. United States Department of Homeland Security, 835 F.3d 422

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(3d Cir. 2016), cert. denied, 137 S. Ct. 1581 (2017), we held that we lacked jurisdiction to review their claims under the Immigration and Nationality Act (INA) and that, while the Suspension Clause of the Constitution would allow an aggrieved party with sufficient ties to the United States to challenge that lack of jurisdiction, the petitioners’ ties were inadequate because their relationship to the United States amounted only to presence in the country for a few hours before their apprehension by immigration officers. Thus, weaffirmed the District Court’s dismissal of their petition.

Now, two years after their initial detention, Petitioners raise what, at first glance, appear to be the same claims. But upon inspection they differ in a critical respect: The children now have been accorded Special Immigrant Juvenile (SIJ) status—a protective classification designed by Congress to safeguard abused, abandoned, or neglected alien children who are able to meet its rigorous eligibility requirements. The protections afforded to children with SIJ status include an array of statutory and regulatory rights and safeguards, such as eligibility for application of adjustment of status to that of lawful permanent residents (LPR), exemption from various grounds of inadmissibility, and robust procedural protections to ensure their status is not revoked without good cause.

Because we conclude that the INA prohibits our review just as it did in Castro, we are now confronted with a matter of first impression among the Courts of Appeals: Does the jurisdiction-stripping provision of the INA operate as an unconstitutional suspension of the writ of habeas corpus as applied to SIJ designees seeking judicial review of orders of expedited removal? We conclude that it does. As we explained in Castro, only aliens who have developed sufficient

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connections to this country may invoke our Constitution’sprotections. By virtue of satisfying the eligibility criteria for SIJ status and being accorded by Congress the statutory and due process rights that derive from it, Petitioners here, unlike the petitioners in Castro, meet that standard and therefore may enforce their rights under the Suspension Clause. Accordingly, we will reverse the District Court’s denial of Petitioners’request for injunctive relief.1

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My quick and pointed analysis:

In Castro v. United States Department of Homeland Security, 835 F.3d 422 (3d Cir. 2016), cert. denied, 137 S. Ct. 1581 (2017), this court basically extinguished the Due Process rights of vulnerable asylum seekers in the United States caught up in the clearly, pathetically, and intentionally unfair Expedited Removal System. The court did so by disingenuously running over the statute, international law, and the Fifth Amendment to the U.S. Constitution, not to mention ordinary human morality.
Think of Castro as a “Modern Day Dred Scott case” and the clueless ivory tower wonks who decided it as mini-versions of the infamous Chief Justice Roger B. Taney.
To reward the Third Circuit for toadying up to Congress and the DHS, the DHS doubled down on their outrageous behavior by stomping on the rights of defenseless children. Even though they themselves had determined these kids should be allowed to remain in the U.S. by approving them for Special Immigrant Juvenile Status, they tried to remove them to a country where “it would not be in the child’s best interest to return.” Cruel and stupid. But, hey, we’re dealing with DHS in the age of Trump and Sessions.
Realizing that they were about to look like fools and also to have the blood of children as well as defenseless women on their hands, this panel of judges wrote 55 pages of fairly impenetrable legal gobbledygook hoping to cover up their mistake in Castro.
What they were really trying to say was pretty simple: The U.S. Government is engaging in outrageously arbitrary and capricious treatment of these children in clear violation of the 5th Amendment to the U.S. Constitution, and they should knock it off.
But, that doesn’t mean that the court has the courage or backbone to go back and correct Castro. They are just vainly hoping that by firing a limited “warning shot” across the Government’s bow on abuse of SIJS children, they can rein in DHS misconduct. Otherwise, the court might have to accept some responsibility for its own feeble legal reasoning and moral cowardice in Castro.
At least it’s something! And it shows that unlike Trump, Sessions, Nielsen, and the rest of the Administration scofflaws, Article III Judges do at some point have a sense of shame. Just not enough of one to do the right thing all the time.

Many thanks to Roxanne Lea Fantl of Richmond, VA for sending this my way.

PWS

06-23-18

STEVE VLADECK @ JUST SECURITY: 9th Circuit Expedited Removal Case Might Further The “Dredscottification” Of Migrants — Are They Becoming “Non-Persons” Under Our Constitution? – What’s The Ultimate Cost To Us Of “Selective Application” Of Constitutional Protections?

https://www.justsecurity.org/53822/trouble-undocumented-immigrants-suspension-clause/

Steve writes:

“Back in August 2016, I wrote a lengthy post about the Third Circuit’s decision in Castro v. Department of Homeland Security, which held that recently-arrived undocumented immigrants, who are physically but not lawfully within the territorial United States, are not protected by the Constitution’s Suspension Clause—and therefore have no right to judicial review of their detention (or removal). Among many other problems with the Third Circuit’s analysis (see my original post for more), it created the anomalous result that enemy combatants held at Guantánamo, who have never set foot on U.S. soil, have more of an entitlement to judicial review than Central American women and their minor children in immigration detention in the United States who are seeking asylum (the petitioners in Castro).

The one saving grace to Castro was that it was only the law of the Third Circuit—Delaware, New Jersey, Pennsylvania, and, yes, the U.S. Virgin Islands. But a new case flying almost entirely under the radar in the Ninth Circuit has raised the same issue, and, thus far, has produced results no different from Castro. As I explain in the brief post that follows, if the Ninth Circuit disagrees with the Third Circuit’s deeply problematic reasoning in Castro, and believes that undocumented immigrants seeking asylum have a right to meaningful judicial review of their asylum claim before their removal, it needs to stay the removal of Vijayakumar Thuraissigiam, and use his case to give plenary review to the jurisdictional (and constitutional) question.

Thuraissigiam is a Tamil from Sri Lanka who was tortured in his home country by individuals he has identified as government intelligence officers before fleeing and eventually attempting to enter the United States—surreptitiously—across the U.S.-Mexico border. He was apprehended shortly after crossing the border (on U.S. soil), and then issued an expedited removal order after the government determined (with no judicial review) that he didn’t have a credible fear of persecution if returned to Sri Lanka.

Thuraissigiam attempted to challenge his expedited removal (and the credible-fear determination) through a habeas petition, and also sought an emergency stay of removal pending the disposition of his habeas petition. On March 8, the district court dismissed the petition for lack of jurisdiction, holding that the unavailability of habeas for non-citizens subject to expedited removal did not violate the Suspension Clause, largely because of Castro, the “analysis and ultimate conclusion [of which] are incredibly persuasive to the Court.” And because the court lacked jurisdiction over Thuraissigiam’s habeas petition, it also denied his motion for an emergency stay of removal.

Thuraissigiam appealed to the Ninth Circuit and renewed his motion for an emergency stay of removal. On March 12, a two-judge motions panel (Silverman & Christen, JJ.) denied the motion without meaningful discussion, leaving intact the original appellate briefing schedule (which would have opening briefs due on May 8). Of course, it’s possible that, once the case is fully briefed and argued before a merits panel, the Ninth Circuit will have a full opportunity to consider Castro‘s many flaws—and to hold that the Suspension Clause requires meaningful judicial review of these kinds of asylum claims, even when brought by undocumented immigrants who surreptitiously enter the United States.

The problem is that the case may well be moot by then, as, without a stay of removal, Thuraissigiam could well be sent back to Sri Lanka in the interim. And although Thuraissigiam sought reconsideration en banc, the Ninth Circuit’s General Orders only require such requests to be referred to staff attorneys, not to the full court. So it was, late last night, that the two-judge panel noted that the motion for en banc reconsideration was “referred to the Court” and denied.

That leaves emergency relief from Justice Kennedy (or the full Supreme Court) as the only remaining means for Thuraissigiam to stay his removal pending the Ninth Circuit’s resolution of the merits. (The Ninth Circuit could also expedite its consideration of the merits to moot the need for a stay, but it hasn’t yet…) Unless such relief is granted, the Ninth Circuit may never have a proper opportunity to decide whether or not to follow the Third Circuit down Castro‘s rabbit hole. And without such a ruling, it stands to reason that there will be more cases like Thuraissigiam’s, in which Castro serves to practically foreclose review, even if it’s not the law of the relevant circuit.

That’s no way to run a railroad, especially when the result is to send individuals back to countries in which they very well may credibly fear persecution (or worse).

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The only thing I take issue with in Steve’s outstanding analysis is his statement in the last paragraph “That’s no way to run a railroad!”

No, that exactly how Jeff “Gonzo Apocalypto” Sessions wants to and is running the “Deportation Railroad.” He’d love to apply “expedited removal” with no due process and no review to everyone in the United States.

I figure that once he gets done “crashing” the U.S. Immigration Court system, he’ll be asking Congress for “Universal Summary Removal,” having proved that due process for foreign nationals, or those believed by DHS to be foreign nationals, is simply too convoluted and impractical. This ties in nicely with the Administration’s view that the Due Process clause protects only the U.S. Government and Administration political officials.

Disturbingly, to date, I can find little evidence that the Courts of Appeals or the majority of the Supremes care about what happens to asylum applicants at the border and whether they are imprisoned or railroaded while here and sent back to death or torture abroad. As long as nobody on the Court of Appeals or nobody that they care about or consider human is affected, the Constitutional problems appear to be “out of sight, out of mind.”

Now, that might be “No way to run a railroad.”

PWS

03-15-18

THE HILL: N. Rappaport Believes That Expedited Removal Is the Key To Reducing The Immigration Court Backlog

http://thehill.com/opinion/immigration/356211-trumps-fast-tracked-deportations-may-be-only-practical-solution-to

Nolan writes:

“An alien who seeks admission to the United States without valid documents can be sent home without a hearing, and, this does not apply just to aliens at the border. An undocumented alien may be viewed as “seeking admission” even if he has been living here for more than a year.

But for immigration purposes, words mean whatever the Immigration and Nationality Act (INA) says they mean.

Section 235(a)(1) of the INA says that an alien who is in the United States but has not been “admitted” shall be viewed as an applicant for admission for purposes of this Act. And section 101(a)(13) of the INA says that the terms “admission” and “admitted” mean a lawful entry into the United States after an inspection and authorization by an immigration officer.

This makes it possible for DHS to use expedited removal proceedings to deport undocumented aliens who already are in the United States without giving them hearings before an immigration judge, which is necessary now because the immigration court is experiencing a backlog crisis.As of the end of August 2017, the immigrant court’s backlog was 632,261 cases, and the immigration court has only 330 immigration judges. The backlog is getting larger every year because the judges are not even able to keep up with the new cases they receive each year.

. . . .

In expedited removal proceedings, which are conducted by immigration officers, an alien who lacks proper documentation or has committed fraud or a willful misrepresentation to enter the country, can be deported without a hearing before an immigration judge, unless he has a credible fear of persecution.

Previous administrations limited these proceedings to aliens at the border and aliens who had entered without inspection but were apprehended no more than 100 miles from the border after spending less than 14 days in the country.

Trump opted to use expedited removal proceedings to the full extent authorized by law. In his Executive Order, “Border Security and Immigration Enforcement Improvements,” he orders the DHS Secretary to use the proceedings for the aliens designated in section 235(b)(1)(A)(iii)(II)of the INA, i.e., aliens who are in the United States but were not lawfully admitted and cannot establish that they have been here continuously for two years.

If an alien wants an asylum hearing before an immigration judge, he has to establish to the satisfaction of an asylum officer that he has a credible fear of persecution. If the asylum officer is not persuaded, the alien can request an abbreviated review by an immigration judge, which usually is held within 24 hours.

Immigration officers should not be making unreviewable decisions about whether to deport someone who has lived in the United States for up to two years. I would prefer replacing the immigration officers with immigration judges for proceedings involving aliens who are already in the United States.

Expedited removal proceedings are not used for unaccompanied alien children.

The William Wilberforce Trafficking Victims Protection Reauthorization Act of 2008 (TVRPA) exempts certain unaccompanied alien children (UAC) from expedited removal proceedings.

Trump has asked Congress to amend the TVRPA to restrict the unaccompanied alien children protections. In the meantime, steps are being taken to deter parents from bringing their children here illegally.

ICE will be putting the parents of UACs in removal proceedings if they are undocumented aliens too, and if a smuggler was paid, they might be prosecuted for human trafficking.

Immigrant advocates still have time to work with Trump on immigration reform legislation, but once Trump has implemented an expanded expedited removal proceedings program, he is not going to be inclined to stop it. And it could start soon. He recently issued a Request for Information to identify multiple possible detention sites for holding criminal aliens and other immigration violators.”

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Read Nolan’s full article over on The Hill at the above link.

I have no doubt that the Trump Administration will attempt to “max out’ the use of expedited removal. Interestingly, however, although the Executive Order referenced by Nolan was issued at the beginning of the Administration, the regulatory changes necessary to expand the use of expedited removal have not yet been published in the Federal Register. A change of this nature is likely to require full notice and comment, which will take some time. If the Administration tries to avoid the notice and comment process, that will be likely to give advocates a valid ground for challenging the revised regulation under the Administrative Procedures Act.

I also doubt that expedited removal can successfully address the current Immigration Court backlog, which is, after all, largely the result of incompetent management, poor enforcement choices, and “ADR” by politicos at the DOJ, including particularly in this Administration. Without removing the political influence over the Immigration Courts and placing them in an independent structure that can be professionally administered in an unbiased manner, no “docket reform” is likely to succeed..

Second, nearly all of the 10-11 million individuals currently in the U.S. without documentation have been here more than two years and can prove it. Indeed, the vast majority of the 630,000+ cases pending in Immigration Court have probably been on the docket for more than two years!

Third, like Nolan, I believe that “Immigration officers should not be making unreviewable decisions about whether to deport someone who has lived in the United States for up to two years.” Individuals living in the United States are entitled to constitutional due process under Supreme Court decisions. A fair hearing before an impartial adjudicator normally is a minimum requirement for due process. A DHS Immigration Officer is not an impartial judicial or quasi-judicial adjudicator.

The situations in which the Federal Courts have permitted DHS Immigration Officers to enter final removal orders against individuals who are “in the United States” (as opposed to at the border, in fact or “functionally”) are fairly limited. One is the situation of an individual who was never admitted as a Lawful Permanent Resident and who committed an aggravated felony. This doesn’t apply to most individuals in the U.S. without documentation.

As Nolan points out, the Federal Courts have also approved “expedited removal” under the current regulations which limit applicability to those who have been here fewer than 14 days and are apprehended within 100 miles of the border — in other words, those who have very minimal connection with the U.S. and have not established any type of “de facto” residence here. In making those limited (but still probably wrong from a constitutional standpoint) decisions some courts have indicated that they would have reservations about reaching the same result in the case of someone who had actually been here for a considerable period of time and had established a residence in the United States.

For example, in Castro v. DHS, 835 F.3d 433 (3rd Cir. 2016), cert. denied, a case upholding expedited removal under the current regulations, the court states:

Of course, even though our construction of § 1252 means that courts in the future will almost certainly lack statutory jurisdiction to review claims that the government has committed even more egregious violations of the expedited removal statute than those alleged by Petitioners, this does not necessarily mean that all aliens wishing to raise such claims will be without a remedy. For instance, consider the case of an alien who has been living continuously for several years in the United States before being ordered removed under § 1225(b)(1). Even though the statute would prevent him from seeking judicial review of a claim, say, that he was never granted a credible fear interview, under our analysis of the Suspension Clause below, the statute could very well be unconstitutional as applied to him (though we by no means undertake to so hold in this opinion). Suffice it to say, at least some of the arguably troubling implications of our reading of § 1252 may be tempered by the Constitution’s requirement that habeas review be available in some circumstances and for some people.

Here’s a link to the full Castro opinion and my previous blog on the decision:

http://wp.me/p8eeJm-IG

I predict that, as in other areas, by “pushing the envelope” on the expedited removal statute, the Trump Administration will eventually force the Federal Courts, including the Supreme Court, to find it unconstitutional at least in some applications.

The Administration would be smarter to go about Immigration Court docket reduction by limiting new enforcement actions to recent arrivals and those who have engaged in activities that endanger the public health and safety, similar to what the Obama Administration did. This should be combined with a realistic legalization proposal and return to a robust use of prosecutorial discretion (“PD”) that would remove many of the older, nonprioty cases from the docket.

Eliminating rights, “fudging” due process, and pretending like judicial and quasi-judicial resources are infinitely expandable will not solve the problem in the long run. It’s time for some “smart” immigration enforcement and action to reform the Immigration Courts into an independent court system. But, I’d ever accuse the Trump Administration of being “smart,” particularly in the area of immigration policy.

PWS

10-19-17

“Send Lawyers, Guns, and Money . . . .” — But, Bipartisan Legalization Is What Undocumented Residents REALLY Need, Says N. Rappaport in THE HILL!

Quote from “Lawyers, Guns and Money,” by Warren Zevon, check it out here: http://www.lyricsmode.com/lyrics/w/warren_zevon/lawyers_guns_and_money.html

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http://thehill.com/blogs/pundits-blog/immigration/329310-noncriminal-immigrants-facing-deportation-need-legalization

Nolan writes in a recent op-ed from The Hill:

“The absence of due process protections is permissible because IIRIA “clarified” that aliens who are in the United States without inspection are deemed to be “arriving.” In other words, they are not entitled to the rights enjoyed by aliens who have been admitted to the United States because, technically, they are not in the United States. This legal fiction has been accepted now for more than 20 years.

Previous administrations arbitrarily have limited expedited removal proceedings to aliens at the border and aliens who entered without inspection and were apprehended no more than 100 miles from the border after spending less than 14 days in the country.

But Section 235(b)(1)(A)(iii)(ll) of the Immigration and Nationality Act (INA) authorizes expedited removal proceedings for any alien “who has not been admitted or paroled into the United States, and who has not affirmatively shown, to the satisfaction of an immigration officer, that the alien has been physically present in the United States continuously for the 2-year period immediately prior to the date of the determination of inadmissibility.”

President Trump can use expedited removal proceedings to deport millions of noncriminal aliens without hearings before an immigration judge or the right to appeal removal orders to the Board of Immigration Appeals.

The only way to stop him is to find a way to work with him on a comprehensive immigration reform bill that includes a legalization program. And time is running out.

The Trump administration is quickly identifying ways to assemble the nationwide deportation force that President Trump promised on the campaign trail.

Preparations are being made for U.S. Customs and Border Protection (CBP) to hire 5,000 new officers and for U.S. Immigration and Customs Enforcement (ICE) to hire an additional 10,000. Also, ICE has identified 27 potential locations that could increase its detention space by 21,000 beds, and CBP plans to expand its detention capacity by 12,500 spaces.

But it is not too late to work on a deal that would meet the essential political needs of both parties … yet.”

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Go over to The Hill at the link to read Nolan’s complete op-ed.

I agree with Nolan that given the huge backlogs in the U.S. Immigration Courts, the Administration will use every device at its disposal to avoid the Immigration Courts and completely eliminate due process protections for as many individuals as possible. Moreover, as I have pointed out in a recent blog, to date the Article III Courts have been willing to turn a blind eye to the rather obvious due process and statutory issues involved in expedited removal. See http://wp.me/p8eeJm-IG.

To state the obvious: “Any alien who is physically present in the United States or who arrives in the United States (whether or not at a designated port of arrival and including an alien who is brought to the United States after having been interdicted in international or United States waters), irrespective of such alien’s status, may apply for asylum” is meaningless without a fair opportunity to be heard on the asylum application before an impartial adjudicator, with a meaningful opportunity to present evidence, and represented by counsel of one’s choice. And, the idea that individuals who have spent months in detention in the U.S. aren’t entitled to “due process” in connection with their asylum applications (which are “life or death” applications) is facially absurd.

Yeah, I know that the Third Circuit in Castro v. DHS spent the whole decision on a turgidly opaque discussion of jurisdiction and and “suspension of habeas.” Surprising how folks living in the “ivory tower” with lifetime job security can sometimes drain all of the humanity out of “real life” tragedies.

But, frankly, in four decades of being a “highly interested observer” of immigration litigation, I’ve never seen an Article III Court, including the Supremes, be deterred from running over supposed statutory limitations on judicial review when motivated to do so. Perhaps it will take some Federal Judge’s nanny, maid, gardener, driver, handyman, neighbor, fellow church member, student, or in-law being swept up in the new “DHS dragnet” to “motivate” the courts here.

In the meantime, as pointed out to me by Nolan in a different conversation, there is some hope for due process in the Third Circuit’s dictum in Castro. In “footnote 13,” the court actually indicates that there might be a “constitutional break point” for review of expedited removal:

“Of course, even though our construction of § 1252 means that courts in the future will almost certainly lack statutory jurisdiction to review claims that the government has committed even more egregious violations of the expedited removal statute than those alleged by Petitioners, this does not necessarily mean that all aliens wishing to raise such claims will be without a remedy. For instance, consider the case of an alien who has been living continuously for several years in the United States before being ordered removed under § 1225(b)(1). Even though the statute would prevent him from seeking judicial review of a claim, say, that he was never granted a credible fear interview, under our analysis of the Suspension Clause below, the statute could very well be unconstitutional as applied to him (though we by no means undertake to so hold in this opinion). Suffice it to say, at least some of the arguably troubling implications of our reading of § 1252 may be tempered by the Constitution’s requirement that habeas review be available in some circumstances and for some people.”

I suspect that the Administration eventually will push expedited removal and credible fear denials to the point where there will be some meaningful judicial review. But, lots of folks rights are likely to be trampled upon before we reach that point.

Nolan’s suggestion for a bipartisan legislative solution certainly seems reasonable and highly appropriate from the viewpoint of both sides. The Administration is about to invest lots of resources and credibility in a “war to deport or intimidate just about everybody” that it is likely to lose in the long run. But, advocates are likely to be bleeding resources and losing individual battles for some time before the tide eventually turns, if it ever does. Anything that depends on litigation as the solution has many risks and unpredictable outcomes that might leave both sides unsatisfied with the results.

Sadly, nobody in the Administration seems interested in solving this issue. The policy appears to be driven by Attorney General Jeff Sessions, a lifelong opponent of immigration reform who seldom if ever has a kind word to say about any immigrant, legal or undocumented.

Secretary Kelly has become “Sessions’s Parrot,” apparently devoid of any original or constructive thoughts on the subject of immigration. In particular, his recent “put up or shut up” outburst directed at Congressional Democrats who sought some meaningful oversight and clarification of his enforcement policies did not seem to be an entree for better dialogue.

Although there almost certainly is a majority of Democrats and Republicans in favor of reasonable immigration reform, which the majority of the country would also like to see, leadership of both parties seems fairly discombobulated. There seems to be “zero interest” in putting together a legislative coalition consisting of Democrats and a minority of Republicans to get anything done. And, even if such a coalition were to coalesce, President Trump likely would veto any constructive result in the area of immigration.

As I’ve pointed out before, there are a number of reasons why folks don’t always act in their best interests or the best interests of the country. But, I appreciate Nolan’s efforts to promote “thinking beyond conflict.” I want to think that it can come to fruition.

PWS

04-20-17

DEPORTATION EXPRESS: U.S. Courts Appear Ready To “Green Light” Summary Removal Of Asylum Seekers Without Regard To Due Process — Advocates Striking Out In Attempts To Get Meaningful Judicial Review Of Expedited Removal — Trump Administration’s Plans To Expand Expedited Removal Likely To Deny Thousands Day In Court!

http://www.cnn.com/2017/04/17/politics/supreme-court-castro-expedited-removal/index.html

By Ariane de Vogue, CNN Supreme Court Reporter writes:

“(CNN)The Supreme Court on Monday left in place a lower court opinion rejecting claims by undocumented Central American women and children — who were apprehended immediately after arriving in the country without authorization — seeking asylum.

Lawyers for the families sought to challenge their expedited removal proceedings in federal court arguing they face gender-based violence at home, but a Philadelphia-based federal appeals court held that they have no right to judicial review of such claims.

The court’s action means the government can continue to deny asylum seekers placed in expedited removal a chance to have their cases heard by federal court.

Justice Neil Gorsuch, who has his first full week on the court starting Monday, did not participate in the decision.

The case, initially brought under the Obama administration, comes as the Trump administration has vowed to more strictly enforce immigration laws.

Originally, 28 mothers and their children entered the US border in Texas in late 2015. They were immediately placed in expedited removal proceedings. Represented by the American Civil Liberties Union, they argue they suffered “gender-based violence, including sexual assault, by men from whom they could not escape” and that they were targeted by gangs because “they are single women residing without a male household member to protect them.” They sought to challenge their removal proceedings in federal court, arguing that they did not receive substantive procedural rights to which they were entitled.

A federal appeals court ruled against the petitioners, arguing that Congress could deny review for those who have been denied initial entry into the country who were apprehended close to the border. The court essentially treated the petitioners as equal to those who arrived at the border but had not yet entered.

“We conclude that Congress may, consonant with the Constitution, deny habeas review in federal court of claims relating to an alien’s application for admission to the country, at least as to aliens who have been denied initial entry or who, like Petitioners, were apprehended very near the border and, essentially, immediately after surreptitious entry into the country,” wrote the majority of the Third Circuit Court of Appeals.

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Here’s a link to the Third Circuit’s decision in Castro v. DHS: http://www2.ca3.uscourts.gov/opinarch/161339p.pdf

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This could be the real “sleeper” in the Trump Administration’s “get tough” immigration enforcement plan. Given the 540,000+ backlog in the U.S. Immigration Courts, the Administration appears to be looking for ways to circumvent the court process entirely wherever possible.

DHS could easily change the existing regulations to “max out” so called “Expedited Removal” by DHS enforcement officers by applying it to everyone unable to establish at least two years’ continuous residence in the U.S. (Currently, the cutoff is 14 days if apprehended within 100 miles of the border.)

Even individuals who meet the two-year requirement could be subsumed in the Expedited Removal regime. Without a right to be represented by counsel, to have a full hearing before an impartial decision maker, and to appeal to the Article III Federal Courts, an individual wrongly placed in the expedited process would have little chance of avoiding summary removal without a chance to apply for relief that might be available before the Immigration Court.

While the Supreme Court’s refusal to grant certiorari in Castro is not a decision on the merits, to date no circuit has ruled in favor of the claimants. Unless and until that happens, it is unlikely that the Supremes will even consider the advocates’ arguments for at least some degree of judicial review of Expedited Removal.

PWS

04-17-17

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