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| Is this ironic? “Give me your tired, your poor, Your huddled masses yearning to breathe free, The wretched refuse of your teeming shore, Send these, the homeless, tempest-tossed to me, I lift my lamp beside the golden door!" Emma Lazarus, 1849-1887. |
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Summary Removal Orders
The United States Congress passed two (2) major legislations in 1996, with
sweeping changes to the immigration laws of our nation. These legislations were denominated as the Anti-terrorism and Effective Death Penalty
Act of 1996 (AEDPA), and the Illegal Immigration Reform and Immigrant
Responsibility Act of 1996 (IIRIRA). The "summary removal" process
which is the subject of this article was enacted through IIRIRA and became
effective after April 1, 1997.
An order of "summary
removal" refers to an expeditious and simplified decision-making process
for purposes of ordering a noncitizen (e.g., a non-US-citizen) deported (also
referred to as removed) from the United States. This summary removal
process was enacted for the first time in September 30, 1996 and was designed
to first take prospective effect on April 1, 1997. These summary removal orders
can be issued against a noncitizen not by an immigration "judge" in
removal (deportation) proceedings (which are required to take place in an
immigration court, with all of the procedural due process formalities in place,
including the right to administrative and judicial review), but instead, such
orders can be issued against a noncitizen by a low ranking immigration officer
in the regular exercise of his or her delegated duties provided certain
conditions are met.
An order of summary removal (summary
deportation) is permitted by immigration law for example where a
noncitizen comes into contact with an immigration officer (or with a border
patrol agent) at or near a port of entry and the noncitizen cannot prove
to that immigration officer or border patrol agent's satisfaction that he/she
has been paroled (or lawfully admitted) to the United States, and that he/she
has been physically present in the United States for at least two (2) years
immediately preceding the finding of the officer or agent that the noncitizen
is subject to summary removal.
So unless that noncitizen can
convincingly demonstrate upon inquiry by an immigration officer or border
patrol agent that she was admitted (or paroled) into this country, and that she
has been physically present for at least two (2) years, then why should the law
compel the US government to extend to this noncitizen all of the established
due process procedural safeguards that are extended to other noncitizens
mentioned above? You may argue that under the fifth amendment of our
federal constitution "all persons" in the US have the same equal due
process protections under the law, but you would be wrong because under Supreme
Court precedent, noncitizens whom have not made an "entry" to the US
(have not been admitted) do not have the same or equal rights as those who have
made such entry. This concept is well known and commonly referred to as
the "entry-fiction doctrine".
Most courts have found this summary
procedure as objectively reasonable under the circumstances although it has
been controversial since its enactment because of its intended purpose. But to
its credit, the Department of Homeland Security has been measured in not over
employing this procedure to deny otherwise eligible noncitizens whom have been
admitted of the more formal removal proceedings before an immigration judge and
with the panoply of statutory procedural due process otherwise integrated in
all administrative removal proceedings, including but not limited to the right
to present evidence, examine and cross-examine witnesses, the right to legal
representation at the noncitizen's own cost and the right to an impartial
adjudicator.
An order of summary removal (summary
deportation) carries the same severe consequences as does, an order of removal
issued by an immigration judge during removal proceedings. The most significant
difference between the two (2) removal processes (the summary and formal
proceedings) is that a noncitizen in summary removal proceedings before an
officer or agent (as opposed to the same noncitizen in removal proceedings
before an immigration judge) has very limited procedural due process rights,
such as: is not entitled to representation by a lawyer at his own cost—and most important—has
no meaningful administrative or judicial review rights. This means that
if the immigration officer making the determination that the noncitizen will be
subject to summary removal, makes such determination arbitrarily or in error,
the likelihood that it will be reversed on review oscillates between negligible
and non-existent.
In sum, under the new summary
removal provisions, an officer of the Immigration and Customs Enforcement (ICE) has been delegated with the
authority to issue these so called "summary removal" orders against a noncitizen and thereby avoiding the
more comprehensive procedure involving the filing of a charging document before
the immigration court and extending to the noncitizen the panoply of safeguards mentioned elsewhere (in this article), and in part also to prevent the noncitizen from ultimately defeating the government's effort in removing the noncitizen from the United States.
How? Well,
whenever ICE is unable to convince an immigration judge with "clear and convincing" evidence
that the noncitizen is removable (only so, in the very rear iof circumstances) or, when the noncitizen is able
to establish to the satisfaction of the immigration judge that he/she deserves
a grant of legal status based on a series of applications for relief that are made
available by law to non-criminal noncitizens unlawfully present in
the United States. For example, a noncitizen encountered by immigration law enforcement agents whom has resided in the US for a period of at least 10 years, has not been convicted of a list of crimes (mainly crimes involving drugs, crimes of moral turpitude, domestic violence and others), and has been a person of good moral character during the 10 year period, will be given an opportunity to apply for obtaining legal status if the noncitizen can demonstrate to an immigration judge that her removal will result in exceptional and extremely unusual hardships to her spouse, parents, or children if they are lawful permanent residents or US citizens. Certainly a very generous giving in theory, but to obtain legal status in this manner in reality requires the noncitizen to show this very high level of hardship to her qualified family member, which only a handful of applicants ever succeed in satisfying it. But again, in theory at least, such noncitizen may strike gold in the small number of cases that are successful where the facts and circumstances in the case demonstrate the high level of hardships required to the satisfaction of the immigration judge. Also, keep in mind that this relief from removal is only available to a noncitizen if she is encountered by an immigration or customs law enforcement officer and is thereafter placed in formal removal proceedings.
This application process is commonly known as "cancelation of removal for non-permanent residents" and it cannot be granted to a noncitizen by the encountering immigration officer as is only made available in removal proceedings before an immigration judge, if the noncitizen is placed in formal removal proceedings and meets the initial requirements shown above.
And with respect to the intention behind this statutory provision—there are two (2) practical reasons
as to why an ICE officer has been delegated with the authority to issue a
summary order of removal against an alien. One of them (for example) is when the presence of the noncitizen in the United States has come to the attention of ICE after he/she suffered a criminal conviction for certain type of crimes that are
designated as offenses for which the noncitizen can be removed expeditiously.
This occurs for example when the noncitizen is arrested for seemingly common
crimes such as driving under the influence of alcohol, or for domestic
violence, or even yet for a traffic ticket that did not get paid in time and
thereafter turned into a warrant for the arrest of the noncitizen driver.
It more frequently occurs however when the noncitizen is arrested by state or city law enforcement and accused of committing more serious crimes such as certain types of felonies or even misdemeanors that are considered by immigration law a high priority, and thereafter the noncitizen is convicted for such a crime.
Most county jails in a large metropolis
in the United States will require that the person arrested or convicted be
asked about his or her nationality or place of birth. If the person
arrested or convicted informs the inquiring county jail official that he or she
was born in a foreign country, and has not become a naturalized citizen of the
United States, the county jail official must provide that information to the
nearest ICE office, typically by electronic means. In response, the ICE
office will soon thereafter place a "detainer" or "hold"
request, which means in practice that when the noncitizen is about to be
released by the county jail at the conclusion of its term in county custody,
the county jail must hold releasing the noncitizen from jail (during a brief
period of 24 hours) until ICE goes to the jail to take him or her in federal
detention until ICE either issues an order of summary removal, or places the
noncitizen in traditional removal proceedings before an immigration judge, or
allows him to be released on bail, or on his own recognizance depending on the
particular circumstances on a case by case basis.
Noncitizens that are arrested and
held in custody while their criminal prosecutions are pending are subject to
these "detainers" or "holds" irrespective of whether the
noncitizens are legally or illegally present in the United States. Generally,
if a noncitizen who is legally present in the United States (meaning his or her
presence is legally authorized by immigration law) is arrested, the county
official must inquire about their present nationality without regard to the
noncitizen's actual immigration status as the determination of their legal
presence is a matter for the federal agencies to make.
The other practical reason is where
the noncitizen comes to the attention of the ICE agent either attempting to
enter the United States at a port of entry or an alien found in the United
States who cannot establish to the satisfaction of the agent that he/she has
been present in the United States for a period not less than 2 years. In these
instances then, an agent of ICE can effectuate the removal of the alien
expeditiously and making it extremely difficult if not impossible for the alien
to seek any relief. Often, these individuals may be removed to their
country of nationality within a few days and are forced to leave behind in the
United States their sons, daughters, siblings, parents and friends without any
opportunity to consult with a lawyer of their choice.
The officer
is required however to conduct an inquiry from the noncitizen in order to
establish whether the noncitizen expresses a fear of returning to his or her
homeland. This inquiry is known as the
"credible fear determination". If the noncitizen establishes to
the satisfaction of the immigration officer that he possesses a credible fear
of returning to his or her homeland, then, the immigration officer will place
the noncitizen in the formal removal proceedings before an immigration judge
for it to conduct a full evidentiary hearing for purposes of determining
whether the noncitizen may qualify for some form of relief from removal, such
as withholding or restriction of removal.
If however,
the noncitizen does not establish that he or she possesses a credible fear of
returning to the homeland, or worst yet, if the immigration officer erroneously
determines that the claim by the noncitizen is legally insufficient or
deficient, then, the officer’s order of summary removal can be executed against
him or her unless the noncitizen is given the opportunity for a single level of
very limited administrative review before an immigration judge. This limited “review” is most likely
performed via video while the noncitizen is in the custody of the Service
without any right to legal representation by an immigration lawyer and without
comprehensive administrative or judicial review of the decision. For this reason, the summary removal
procedure is controversial and ultimately very dangerous to life and liberty
and—quite possibly—an affirmative affront to the United States’ commitment to
treaty obligations under the Article 33 of the United Nations Protocol Relating
to the Status of Refugees that embodies the principle of “non-refoulment”
stating— No contracting state shall expel or return (“refouler”) a refugee in
any manner whatsoever to the frontiers of territories where his life or freedom
would be threatened on account of his race, religion, nationality, membership of
a particular social group, or political opinion. For this reason, we believe that
the summary removal process defies fairness and recants our moral contractual
obligations to the nations of the world.
In the past 18 months, we have received appellate cases arising from the southern border in Texas where noncitizens have been placed in this summary removal process after being intercepted by border patrol agents near the border. One of these cases involved a 17 year old young woman who was pregnant and had fled her home country because her boyfriend would get drunk every night, forced himself on her at will, and beat her up. She attempted to seek protection from the local police, but they were powerless and unwilling to get involved in "family" quarrels. The immigration officer conducting the "credible fear" examination determined that her claim of persecution was legally invalid because her persecutor was her common law cohabitant and a gang member in Tegucigalpa, Honduras, not a recognized "persecutor" under immigration law. The determination was made in error because the officer was unaware that she was a victim of severe domestic violence that could place her as a viable member of a "particular social group" for purposes of asylum law. When she sought to obtain the little "review" that is available from that decision, the immigration judge conducting the review was also not aware of the validity of her claim and was unable to elicit from the young woman sufficient facts to elucidate the validity of her claim of persecution. The immigration judge then ordered her to be removed to her native Honduras. When she arrived in Tegucigalpa a few months later, she was beaten by her cohabitant and this time she ended up in a hospital nearly comatose. She also lost her baby. We could have prevented her removal had her claim been properly validated by the immigration officer and the immigration judge.
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