It is not easy to convey the magnitude of the ongoing disaster at EOIR, the Executive Office for Immigration Review, the office that oversees our nation’s Immigration Courts. Simply stated, the agency is rescheduling and advancing hundreds–maybe thousands–of cases without notifying attorneys, checking whether we are available to attend the hearings or checking whether we have the capacity to complete the cases.
On its face, this appears to be a mere scheduling problem. But in effect, it is a vicious and unprecedented assault on immigrants, their attorneys, and due process of law. (more…)
The Trump Administration has implemented a new rule to reduce due process protections and make it easier to deport certain aliens who are in the United States unlawfully. Given its questionable legality, clumsy roll-out, and lack of notice, we can expect the new rule–which expands the use of “expedited removal”–to be challenged in court, and so whether it will remain in effect and how it will ultimately be implemented, we do not yet know.
While I don’t share the apocalyptic view of some of my colleagues, I do think there is a real danger that the rule gives too much authority to under-trained immigration agents, and that it will result in some non-citizens (and potentially some citizens) being improperly detained and deported in violation of the law. I also think it will further exacerbate the Asylum Office backlog. Worst of all, I expect the new rule will disproportionately impact and terrorize minority communities.
On the bright side, non-citizens will get some exercise carting around their papers.
Here, we will take a look at the new rule and what it might mean for asylum seekers and others. But first, we have to talk about “expedited removal.” The American Immigration Council describes expedited removal as follows–
Created in 1996, expedited removal is a process by which low-level immigration officers can quickly deport certain non-citizens who are undocumented or have committed fraud or misrepresentation. Since 2004, immigration officials have used expedited removal to deport individuals who arrive at our border, as well as individuals who entered without authorization if they are apprehended within two weeks of arrival and within 100 miles of the Canadian or Mexican border.
Basically, a non-citizen who recently entered the U.S. either without inspection or through fraud, and who is encountered near the border, had less due process protections than someone who has been here for a longer time, who entered lawfully or who is in the interior of the country. People subject to expedited removal do not get to see an Immigration Judge–they are detained and deported quickly (though there are exceptions, discussed below). The new rule expands the use of expedited removal geographically and temporally–
As of July 23, 2019, expedited removal may be applied to individuals who are undocumented, or who have committed fraud or misrepresentation, and who are encountered within the entire United States and who have not been physically present in the United States for two years prior to apprehension
What does this mean in practical terms? If you entered the U.S. lawfully with a visa, and did not commit fraud, expedited removal does not apply to you. Even if you entered unlawfully or without inspection, expedited removal does not apply to you if you have been in the United States for more than two years. These criteria beg the obvious question: How does an immigration agent know whether you entered fraudulently or whether you have been here for less than two years? As I read the rule, it seems that the burden of proof is on the alien. So if you entered legally, keep a copy of your passport, visa, and I-94 with you. If you entered unlawfully more than two years ago, carry evidence showing your length of residency–tax and employment documents, school records, lease agreement, bills, etc. This type of evidence will not protect you from being detained if you are out of status, but it should at least allow you an opportunity to present your case to an Immigration Judge, rather than facing summary removal (for information about what to do if you encounter an ICE agent, click here).
Let’s say you are subject to expedited removal and ICE stops you. Then what? If you have a fear of returning to your country, you can express that fear to the immigration agents and you should be afforded a credible fear interview (“CFI”). The CFI is an initial evaluation of eligibility for asylum; it is conducted by an Asylum Officer. If you “pass” the CFI, your case will be referred to Immigration Court where you can present your full asylum case to a Judge. If you “fail” the CFI, you can request an Immigration Judge to review that decision and potentially reverse the negative determination by the Asylum Officer (unfortunately, the likelihood of success for such cases varies significantly depending on the particular Court that hears your case).
If everything were to work according to the law, the new rule should not be too bad: People with a fear of return can still seek asylum and those here unlawfully would be quickly removed (such people generally do not have any defense to being deported). The problem–which is completely predictable since we have seen it before–is that things often do not work according to the law. ICE agents frequently lie to prevent non-citizens from exercising their legal rights. They also make mistakes, which result in people being denied their rights. Further, ICE often engages in racial profiling, and so we know which communities will bear the brunt of the new rule.
In addition, there is the problem of politicization of our nation’s immigration enforcement. Every time the President puts out a tough tweet about “illegals,” ICE has to scramble to make it come true (or not). The result, of course, is distress and terror in immigrant communities. The new rule seems tailor-made to increase such fears.
Finally, with this new rule, there is the problem of execution. I’ve described the Trump Administration’s approach to immigration as malevolence tempered by incompetence, and this new rule is no different. According to the Migration Policy Institute, there are nearly 300,000 immigrants in the United States who could be subject to expedited removal. When ICE starts detaining these people, we can expect many to ask for a CFI (which is usually their only option). Since CFIs are conducted by Asylum Officers, the new rule will shift resources away from “regular” affirmative asylum cases and will likely exacerbate the backlog (ironically, the whole point of the LIFO system was to deter frivolous cases by making the process faster–the new rule will have the exact opposite effect). Further, people whose CFIs are denied can ask an Immigration Judge to review that decision, thus taking additional resources from the Courts and causing more “aimless docket reshuffling.”
The new expedited removal rule seems to me predicated on two myths: First, that there is a pressing danger from non-citizens living in our country. Empirical data does not support this conclusion; rather, it is based on racist and xenophobic stereotypes perpetrated by the current Administration. Second is the myth that our country would be safer if we traded some of our liberty for more security. And make no mistake, when under-trained immigration officials are given near carte blanche to investigate anyone deemed “foreign,” we are–all of us–giving up some of our liberty. As my favorite Founding Father, Ben Franklin, once wrote, “Those who would give up essential liberty to purchase a little temporary safety deserve neither liberty nor safety.” The new rule reduces our liberty, does nothing to enhance our safety, and sows more fear among our immigrant neighbors. It is another sad step towards the degradation of our great country.
I’ve never been a big fan of the Martin Niemöller poem about the Nazi era, “First they came…” You know the one:
First they came for the Socialists, and I did not speak out – Because I was not a Socialist,
Then they came for the Jews, and I did not speak out – Because I was not a Jew,
…yadda, yadda, yadda…
Then they came for me – And there was no one left to speak for me.
I have two complaints about this poem. First, it implies that the main reason to “speak out” on behalf of others is self-interest: If I don’t help others, no one will help me. That seems a weak foundation for a system of moral behavior. Second, I don’t think Pastor Niemöller’s basic point—that eventually a malicious government will come for everyone—is convincing to the people who need convincing. Nazi supporters certainly did not think that their government would turn against them. And the fact is, Hitler did not persecute most of the people who stood by his side (he caused them great misery, but that is another story).
Due Process of Law…
Fast forward to our own time, and President Trump’s attacks on non-citizens. Last month, the President announced his opposition to due process of law for asylum seekers: “When somebody comes in, we must immediately, with no Judges or Court Cases, bring them back from where they came,” he wrote on Twitter. And a series of new legal, policy, and personnel changes represent clear moves in the direction of weakening due process protections for non-citizens, and making it easier to deny cases—including asylum cases—without a full review of the applicant’s claim.
Why should we be so concerned about due process, you ask? For one thing, due process is a foundational principle of our democracy (and its origins go all the way back to the Magna Charta). The Founding Fathers were rightly concerned about the exercise of government power against individuals. Due process provides a procedural check on that power—the government’s authority cannot be unleashed in a criminal, civil or immigration case without first ensuring that the use of that power is lawful. In the case of non-citizens, the Immigration and Nationality Act (“INA”) provides certain legal rights to non-citizens, including the right to apply for asylum. The Supreme Court has recognized—repeatedly—that aliens are entitled to due process of law before they can be deported.
What does due process look like in the immigration context? The protections afforded to non-citizens vary, depending on many factors, including the type of case, the relief sought, and whether the alien is inside the U.S. or seeking admission at the border. In the asylum context, an alien who is physically present in the United States or at a border has the right to seek asylum. That is the law (specifically INA §208). In most cases, asylum seekers are entitled to a full hearing to evaluate their claims. However, the Trump Administration has been working hard to eliminate due process protections, and reduce the system’s safeguards (for a sobering analysis of the Trump Administration’s degradation of due process for non-citizens, check out this article by the brilliant Jeffrey S. Chase). But thus far, the Trump Administration has not changed the immigration law—that requires an act of Congress.
Assuming that Congress does not act (usually a safe assumption), some measure of due process will remain for all asylum seekers—even those at the border. But of course, reducing due process means increasing the likelihood that legitimate claims will be denied, and that some aliens will be returned to face harm.
Dupe Process of Law.
All this brings us back to Pastor Neimöller. I have little hope that President Trump’s supporters or Republicans in Congress will have a sudden change of heart, or recognize that when due process protections are reduced for some, those protections are reduced for us all. They seem to believe that while the government might come for non-citizens, it will not come for them. Or in the case of our elected officials, they may know better, but are cowed by the President’s Twitter account. Either way, we can’t expect much help here.
So where does that leave us? Who will speak out?
The primary decision-makers in asylum cases—the people on the front line—are Immigration Judges and Asylum Officers. There are other players, of course: The federal courts, the Board of Immigration Appeals, and USCIS Officers, but in most cases, it will be the IJs and Asylum Officers who determine the applicant’s fate. Here, I do have hope. Despite seeming efforts (probably illegal) by the Justice Department to exclude politically undesirable candidates, most IJs and Asylum Officers are serious people who recognize their duty to the rule of law. They were not hired to rubber stamp the President’s agenda, and most will not do so.
And while I can’t say I am a fan of Pastor Neimöller’s famous quote, I do think he is correct in this sense: When we weaken the legal mechanisms and institutions that protect us from excessive government power, we all become more vulnerable. Perhaps non-citizens are the canaries in the coal mine. As the government seeks to reduce due process protections for them, we should all be concerned. Immigration Judges and Asylum Officers stand on the front line of this fight, and when they do their duty, they protect us all.
June 15, 2015 marks the 800th anniversary of the Magna Carta, a document signed by King John, which granted certain rights to English noblemen. Although the Magna Carta was executed under duress and was nullified by the Pope a month later (at John’s request), it has become a foundational document of the American Constitutional system (our system, of course, derives from the English system).
The Magna Carta brought us Due Process of Law, and this lovely commemorative mug. Available wherever finer mugs are sold.
What is important about the Magna Carta is not so much the document itself, with its checkered history and its very limited application. Rather, it is the idea of the document that matters: The idea that even the king himself is subject to law and that the People can assert their rights against the sovereign. Indeed, the Magna Carta states—
No free man shall be seized or imprisoned, or stripped of his rights or possessions, or outlawed or exiled, or deprived of his standing in any way, nor will we proceed with force against him, or send others to do so, except by the lawful judgment of his equals or by the law of the land.
In other words, the sovereign will not act against the subject without due process of law.
While apparently the idea of due process did not gain much traction at the time, it was later elevated to importance in England and the United States, and it is now fundamental to our system of justice. We are all (theoretically) entitled to a fair procedure before the government can assert its power against us.
Of course, it was not always this way. When our country was founded, most people did not enjoy many basic legal rights: Women, minorities, slaves, Native Americans, foreigners, indentured servants, to name the most obvious. Over time, and with much struggle, such individuals gained more legal protections.
But one area where the State retains great power vis-à-vis the individual is in immigration law: The sovereign state determines who will be admitted into the country and who will be excluded. The United States government is allowed to discriminate against arriving aliens. If we don’t want to admit people from China into our country, we don’t have to. If we decide to exclude Muslims, we can do that too. There is no Equal Protection clause for foreigners seeking admission to the U.S.
There are more Constitutional protections available to aliens physically present in the U.S. and in removal (deportation) proceedings, but even these protections are far less than those accorded to criminal defendants. Aliens in removal proceedings do not have a right to an attorney (unless they can afford to hire one). They do not have Miranda rights. They have no right to a jury trial or to see all the evidence against them. They have more limited Fourth Amendment (search and seizure) and Fifth Amendment (self-incrimination) protections than criminal defendants.
But one Constitution right that applies to aliens in removal proceedings is the Due Process clause: Aliens are entitled to a fair procedure, and–if that procedure is violated–they can petition the federal courts for redress. As the Supreme Court has held:
[T]he Due Process Clause applies to all “persons” within the United States, including aliens, whether their presence here is lawful, unlawful, temporary, or permanent.
Because it is one of the few arrows in our quiver, immigration lawyers rely heavily on the Due Process clause, particularly in federal court litigation. The sovereign state has tremendous power to remove non-citizens from U.S. territory, but in doings so, it must comport with due process of law.
In some ways, modern-day immigration law mirrors the early days of domestic law in Great Britain. At the time of the Magna Carta, the king had great power compared to his subjects. Over the centuries, the power of the State has eroded in favor of granting more rights to the People. But this evolution has been far less dramatic in the area of international law and immigration law, where–in the United States–the Executive Branch largely retains plenary power. Perhaps in some more-civilized future, there will exist a system of international law that grants more power to individual immigrants and less power to sovereign nations. I can’t help but think that that would be a good thing.
A case recently argued before the U.S. District Court in Seattle seeks to ensure that every child in removal proceedings is represented by an attorney. The case–styled J.E.F.M., et al. v. Holder–was filed by the Northwest Immigrant Rights Project, and claims that without the assistance of a lawyer, children in Immigration Court cannot receive due process of law.
Some children probably don’t need lawyers.
The Complaint notes that despite the efforts of many non-profit organizations, volunteer lawyers, and the government itself, the majority of children who appear before Immigration Judges go unrepresented. It compares the situation of children in Immigration Court with children in juvenile delinquency proceedings:
[The] Supreme Court recognized that when the Government initiates proceedings against children facing juvenile delinquency charges, the Due Process Clause requires the Government to provide those children with legal representation to ensure that the proceedings are fundamentally fair. In re Gault, 387 U.S. 1, 41 (1967). The Court held that “[t]he juvenile needs the assistance of counsel to cope with problems of law, to make skilled inquiry into the facts, to insist upon regularity of the proceedings, and to ascertain whether he has a defense and to prepare and submit it… The Constitution guarantees children this safeguard notwithstanding the civil, rather than criminal, character of juvenile delinquency proceedings.
Immigrants, including immigrant children, are also entitled to Due Process when facing deportation [and Immigration Court proceedings, like juvenile delinquency proceedings, are civil, not criminal]. Reno v. Flores, 507 U.S. 292, 306 (1993). Both the Constitution and the immigration laws guarantee all children the right to a full and fair removal hearing, including the opportunity to defend against deportation and seek any forms of relief that would enable them to remain in the United States. And just as in juvenile delinquency proceedings, children cannot receive that fair hearing without legal representation.
In terms of the basic legal argument, this seems like a slam dunk: There is no way a child–or even your average non-English-speaking adult–can navigate the Immigration Court system without the assistance of someone who knows what she’s doing (i.e., a lawyer). But of course, the hard realities of life in the immigration world are not so simple, and there are a few policy arguments that may carry more weight than the legal claim.
The first policy argument against providing lawyers to unaccompanied minors is cost. I view this argument as a bit of a red herring because I am not convinced that the cost of paying for lawyers is much different than the cost of not paying for lawyers. In cases where the alien is unrepresented, the Immigration Judge and the Trial Attorney must spend significant extra time on the case, and this time obviously costs the government money. I imagine this problem is particularly acute in cases involving children, who cannot easily articulate their claims. Where the child is represented, her attorney can prepare the case, communicate with DHS counsel, and present the case efficiently. Whether paying for this attorney is much more expensive than making the IJ and DHS sort out the case, I don’t know. But I would imagine that the difference in cost is not as significant as opponents of providing lawyer might have us believe.
The second policy argument concerns the incentives that providing lawyers will create. To me, this is the strongest policy argument against giving lawyers to children. The so-called “surge” of unaccompanied minors does not correlate with a spike in violence–the source countries have been very violent places for years. Rather, it seems likely that the surge was caused by “pull” factors–maybe the belief that immigration reform in the United States would grant benefits to people, if only they could get here before the reforms were implemented. I have little doubt that providing lawyers to unaccompanied minors would further incentivize children (and everyone else) to come here. Whether this is necessarily a bad thing, I am not sure. On the one hand, many of the young people who have come here face real harm in their home countries. On the other hand, more people coming to seek asylum in the U.S. burdens an already overwhelmed system and causes long delays–and great hardship–for everyone in the system. Of course, there are already many incentives for people to come to the United States: Safety, jobs, family reunification. I am not sure that one more incentive–the guaranteed assistance of an attorney–will make much difference.
Finally, there is the issue of public perception. It’s unclear to me where the public stands on asylum in general, and on unaccompanied minors in particular. There are loud voices on both ends of the spectrum: Advocates on one side who essentially believe in open borders and who want to use the asylum system to achieve that goal, versus restrictionists on the other side, like some in Congress who hope to “protect” these children by sending them all home. Frankly, I am not much of a fan of either camp, and I suspect that the general public is also somewhere in the middle. If the asylum system becomes too costly, or too much of an open door, we will likely see a shift in opinion against it, which will be bad for everyone. Whether or not providing lawyers to unaccompanied children will be the straw that breaks the camel’s back, I do not know, but given the current mood in Congress, it is a danger that needs to be considered.
All these policy considerations should (theoretically) not count for much with a court of law, but traditionally, such arguments have impacted decision-making in asylum and immigration cases. As advocates have continually expanded the categories of people eligible for asylum and the protections available to asylum seekers, we run the risk of making asylum a victim of its own success. For the sake of the many people who receive protection in our country, I hope that will not be the case.
