Shoddy Court Process Behind the Record Number of Deportations

Written by on February 15, 2013 in Enforcement, Immigration Courts, Right to Counsel with 3 Comments

shutterstock_90107251The Obama Administration is on record for pursuing the toughest immigration enforcement policies in U.S. history, mostly evidenced by its record numbers of deportations.  These numbers speak volumes:  last year, nearly 400,000 people were deported from the United States.  While these numbers are shockingly high and there has been much discussion about how these actions tear families and communities apart, there has also been an under-reporting of the unfair and often expedited process that leads to the deportation of hundreds of thousands of people each year.  In fact, two-thirds of the individuals removed are done so without ever seeing the inside of an immigration courtroom and are not accorded many other basic due process protections. 

Congress has authorized the Department of Homeland Security (DHS) – which includes Immigration and Customs Enforcement (ICE) officers in the interior and Customs and Border Protection (CBP) officers at and near the border – to initiate regular removal proceedings against noncitizens.  In those cases, the person is brought to immigration court, DHS serves as the prosecutor, and an immigration judge – who must be a lawyer – conducts a hearing, considers the evidence, and renders a decision.  The decision is appealable to the Board of Immigration Appeals, and if the Board upholds the removal order, the person has the right to seek federal court review of the Board’s decision.  This is the normal process.

However, DHS also has authority to side-step the immigration court process in limited situations and unilaterally and summarily order someone removed. These situations are becoming more of the norm than was ever intended and now account for the overwhelming majority of removals.  One type of summary proceeding is called “expedited removal,” which takes place at the border when a noncitizen is seeking admission, but does not have authorization to enter the United States.  The name is apt, as “expedited removal” takes place without any hearing and involves few procedural protections.  In contrast to immigration court proceedings, in the expedited removal process, the DHS officer is both the prosecutor and judge (i.e., decides to initiate proceedings and makes the final determination).  But unlike immigration judges, immigration officers need not be lawyers or have any formal training in the law.  Further, a person subject to expedited removal is not afforded access to legal counsel, even counsel they have privately retained.  There is no right to appeal the decision to the Board of Immigration Appeals, and federal court review is extremely limited.  In essence, it is a summary process with little oversight.

The absence of meaningful federal court oversight is particularly problematic given that there are so few procedural protections in place to ensure a proper decision.  A case now pending in federal court highlights how crucial federal court review is.  Martha Ledesma has been living in the United States since 1991.  She was placed in immigration court proceedings and was contesting her removal.  While her case was pending, she traveled briefly to Mexico.  Upon return, CBP issued an expedited removal order against her.  She maintains that CBP exceeded its authority in issuing the expedited removal order while immigration court proceedings were ongoing.  CBP ignored her claim.  She then brought this claim to federal court, but the government is arguing that she has no right to seek court review of the expedited removal decision, regardless whether CBP’s actions were unlawful.  This month, the American Immigration Council, in collaboration with the National Immigration Project of the National Lawyers Guild and the ACLU Immigrants’ Rights Project submitted an amicus brief to the federal court arguing that that not only did the government exceed its limited authority to issue an expedited removal order against Ms. Ledesma, but the court must have authority to address the issue.

The outcome of this case will have real life consequences for Ms. Ledesma:  unless CBP’s decision is overturned, she will be deprived of an opportunity to challenge her deportation.  She also will be subject to the harsh consequences of removal.  Individuals with expedited removal orders are subject to the same consequences as those who are ordered removed by an immigration judge.  That means that they may be barred from returning to the United States – in some cases, the bar is permanent – and subject to criminal and immigration penalties if they were to attempt re-entry.

Congress understandably made clear that summary removal processes, including expedited removal, are to be used only in limited situations and regular proceedings before an immigration judge should continue to be the norm.  Yet the opposite has proven true.  Hundreds of thousands of individuals are removed without any opportunity to see an immigration judge.  As Congress begins debating immigration reform, it must take a closer look at the process behind the removal numbers.  Even modest steps, such as providing hearings, access to counsel, and federal court review would go a long way to bringing integrity to an enforcement system defined by the numbers and not by any assurances that justice has been done.

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  • It should be pointed out that expedited removal is used only at Ports of Entry, such as airports, and at the borders. Anyone who makes an “entry” — whether legally or illegally, will generally have access to courts.
    The problem is that border patrol agents often abuse their authority and do not ask detainees if they are afraid to return to their home countries, or actively discourage them from seeking asylum. Detainees who express fear of returning have the right to a a “credible fear” interview conducted by an asylum officer. If they “pass,” they will be scheduled before an immigration judge.

  • Joe

    Aside from the existence — and overuse — of the expedited removal procedure, DHS attorneys have to account to the ICE agents for any decisions not to pursue removal (deportation), unless they have special permission from their superiors.

    Immigration is the only legal context that I know of, in which the muscle guys (agents, police officers, etc.) make the decisions, and the lawyers simply carry out their wishes. In any other context, the prosecuting attorney (District Attorney, Federal Attorney, etc., makes the decision whether to prosecute a case.

    “If an ICE attorney decides to exercise prosecutorial discretion to dismiss, suspend, or close a particular case or matter, the attorney should notify the relevant ERO [Enforcement and Removal Operations – a branch of ICE] , HSI, CBP, or USCIS charging official about the decision. In the event there is a dispute between the charging official and the ICE attorney regarding the attorney’s decision to exercise prosecutorial discretion, the ICE Chief Counsel should attempt to resolve the dispute with the local supervisors of the charging official. If local resolution is not possible, the matter should be elevated to the Deputy Director of ICE for resolution.”

    — June 17, 2011 Memorandum by John Morton, Director of ICE.

  • I wrote an in-depth story about this very issue.