Cite as "AILA InfoNet Doc. No. 99120671 (posted Dec. 6, 1999)"
November 22, 1999
Director, Policy Directives and Instructions Branch
Immigration & Naturalization Service
425 I Street, NW, Room 5307
Washington, DC 20536
RE: COMMENTS ON ADVANCE NOTICE
Advance Notice of Expansion of Expedited Removal to Certain Criminal Aliens
Held in Federal, State, and Local Jails
INS No. 1998-99
In response to the Advance Notice of Expansion of Expedited Removal implementing Immigration and Nationality Act ("INA") §235(b)(1)(A)(iii), following are the comments of the American Immigration Law Foundation ("AILF") and the American Immigration Lawyers Association ("AILA") joined by the additional organizations that have signed on to these comments. AILF is a non-profit organization that educates the public about the benefits of legal immigration through awareness programs, scholarships and services and also mentors attorneys across the country on immigration law issues. AILA is a voluntary bar association of over 6,000 lawyers and law professors practicing and teaching in the field of immigration and nationality law. Its members represent the entire spectrum of those involved with our country's immigration system, and work closely with immigrants and family members who will be affected by these new regulations. We are, therefore, in a unique position to provide preliminary insight on the impact of the proposed rule from this perspective.
Since the passage of the expedited removal provisions contained in the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 ("IIRAIRA"), AILF and AILA have voiced our concerns concerning the system itself, and, more specifically, concerning its application against those persons already present in the United States. We've voiced our concerns and fears regarding the system since well before the passage of IIRAIRA and noted those in comments filed in response to the Proposed Rule Regarding Inspection and Expedited Removal of Aliens; Conduct of Removal Procedures; and Asylum Proceedings, published by the INS on January 3, 1997. AILF, AILA and hundreds of other organizations submitted comments to the Immigration and Naturalization Service ("INS") raising concerns over the constitutionality of the procedures and expressing our fears that application of these procedures would result in the erroneous removal of hundreds or thousands of persons admissible to the United States, and, more importantly, the erroneous removal of those persons seeking refuge from persecution in our country. Many of the same issues we raised previously are implicated by the currently proposed expansion. This comment explains our particular concerns with regard to the proposed expansion of expedited removal to the interior of the country.
We join the Commission for Immigration Reform in its position outlined in its 1997 Refugee Policy Report to Congress relating to the application of expedited removal to asylum seekers. In that report, the Commission, while recognizing that constitutionally-sound expedited procedures may be needed in exceptional circumstances, expressed strong concerns regarding the application of such procedures to asylum seekers. The Commission referred to mass migration emergencies as an example of such exceptional circumstances which might justify its use. During such an emergency, a "credible fear" process is clearly preferable to a policy of direct return of all asylum seekers that has characterized past United States actions in such situations. We agree with the Commission's position that expedited removal procedures, if used at all, should only be used in mass migration emergencies. Even during such emergencies, the use of such procedures must comply with constitutional norms.
According to the Advance Notice of Expansion of Expedited Removal published by the INS on September 20, 1999, the expedited removal procedures contained in INA §235(b)(1) will be applied to certain aliens who have been convicted of illegal entry into the United States[*] under 8 U.S.C. §1325(a)(1) or (2) who have not been admitted or paroled into the United States and who have been physically present for less than two years prior to the date of determination of inadmissibility, and who are serving criminal sentences in the Big Spring Correction Center, the Eden Detention Center, or the Reeves County Bureau of Prisons Contract Facility. These facilities are located in remote areas throughout the state of Texas.
In explaining why it has decided to expand the use of expedited removal against this population inside the country, the INS states that it is implementing this pilot program in order to save immigration court system time, to improve the use of limited detention space, and to reduce detention time for aliens. Conserving costs and improving the use of limited detention space cannot be done at the price of curtailing constitutional rights.
For the reasons listed above and below, AILF, AILA and the organizations that have signed on to this comment, express our deep concern that the application of expedited removal to such a vulnerable population of individuals -- persons of limited economic resources, with little if any access to legal representation, incarcerated in a remote area of Texas-- will result in the erroneous removal of persons eligible for asylum, U.S. citizens, lawful permanent residents ("LPR") and persons eligible for other forms of relief that are unavailable in expedited removal proceedings.
Constitutional Concerns Relating to Application of INA §235(b) to Persons in the US
The elimination of removal hearings for any group of individuals who are physically present in the United States raises serious constitutional questions. The Supreme Court has long recognized that all persons in the United Sates are entitled to due process of the law under the Fifth Amendment, even if their presence in this country is illegal. Wong Wing v. United States, 163 U.S. 228, 238 (1896); Yamataya v. Fisher, 189 U.S. 86, 100 (1903); Wong Yang Sung v. McGrath, 339 U.S. 33, 50 (1950). Thus, the application of expedited removal to persons covered by this pilot program is subject to the due process requirements of the Fifth Amendment.
At a minimum, due process requires procedures to provide individuals with "the right to be heard before being condemned to suffer a grievous loss of any kind." Joint Anti-Fascist Refugee Committee v. McGrath, 341 U.S. 123, 168 (1951). Removal from the United States constitutes such a grievous loss for those persons seeking protection from persecution in the United States and for individuals who have ties to the United States, including close family members from whom they will be separated. Landon v. Placensia, 459 U.S. 21, 34 (1982); Bridges v. Wixon, 326 U.S. 135, 147 (1945).
Once such a deprivation as described above has been identified, one must turn to the balancing test set forth in Mathews v. Eldridge, 424 U.S. 319, 334 (1976), to determine what, if any, additional process is due. Eldridge identifies three factors for consideration:
First, the private interest that will be affected by the official action; second, the risk of an erroneous deprivation of such interest through the procedures used, and the probably value, if any, of additional or substitute procedural safeguards; and finally, the Government's interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail. 424 US. at 335.
Under INA §235(b)(1)(A)(iii) and accompanying regulations under 8 C.F.R. §235.3, there are no provisions for regular removal hearings before immigration judges, except for persons seeking asylum or with claims to certain status. Even in the case of asylum seekers and status claimants, procedures are streamlined and do not initially provide all of the safeguards built into regular INA §240 removal proceedings. Therefore, many individuals who have a right to remain in this country, both U.S. citizens, LPRs, refugees, asylum seekers and those for whom relief from removal is available in regular §240 proceedings, will never receive the procedural protections to which they are entitled.
The government's claimed interest in streamlining removal proceedings and improving the use of detention space must be weighed against the risk that, by eliminating removal hearings, individuals who have claims to asylum or claims to other forms of relief under the Immigration and Nationality Act to remain in this country will be erroneously removed.
The government has an interest in the streamlining procedures in the interests of improving the administration of its duties. However, those persons subject to expedited removal under this pilot program who are present in the United States clearly have due process rights. Many of these persons may be eligible for a wide range of relief from removal. Expedited removal procedures as carried out by the INS provide no opportunity for a determination if persons may be eligible for many different forms of relief from removal set forth in the Immigration and Nationality Act.
As a result of the limited procedures provided under expedited removal, there is a serious and probable risk that many persons will be erroneously removed from the United States, including U.S. citizens, LPRs, asylum seekers and persons eligible for other forms of relief from removal including Suspension of Deportation, Cancellation of Removal, adjustment of status under NACARA, voluntary departure and other possible forms of relief, including waivers of removal.
The high risk of erroneous removal of persons present in the United States with legitimate claims for relief clearly outweighs the government's interest in streamlining procedures in the interests of improving the administration of its duties. Since the potential consequences of an erroneous removal are so severe, expedited removal must not be applied to persons present in the United States.
Inadequate Access to Counsel
The three facilities where implementation of expedited removal is proposed are located in remote areas in Texas. According to local service providers, there is little if any representation provided to detainees currently housed in these facilities. The reasons are obvious. It is difficult for counsel to travel to these areas. Service providers in the El Paso and San Antonio areas are already overburdened with current case loads. Many of those persons incarcerated in the three facilities are of limited economic means and, thus, cannot afford to hire local counsel.
Judges currently travel to the facilities or conduct hearings by video conferencing. Since these proceedings are conducted under INA §240, the immigration judges inform individuals appearing before them of their right to counsel, to free legal services, to present evidence, to cross-examine witnesses, and to appeal. 8 CFR §240.10(a). The immigration judge must also notify the person of relief available to him/her under the Immigration and Nationality Act, if the person has "apparent eligibility for such relief." 8 CFR § 240.11(a)(2).
Under current procedures, detainees have the safeguards provided to them in a removal hearing conducted by an experienced immigration judge. Should they be eligible for any forms of relief from removal, the immigration judge is bound under law to advise them of such. This is especially important when such persons have no legal representation. At a minimum, under current procedures, immigration judges are obligated to safeguard respondents' constitutional rights.
Under expedited removal procedures, an interview by an immigration officer is conducted to determine, first and foremost, whether or not a person is subject to removal under INA §235(b). Once that is determined, the immigration officer questions the person regarding any fear he or she may have of returning to his country of origin. If the person indicates a fear, the officer refers the person to an asylum officer for a "credible fear interview." During these proceedings, there is no right to counsel. The forms used by the INS in processing a person under §235(b) contain no inquiry about alternate forms of relief from removal. Regulations do provide for the presence of counsel or family members during the credible fear interview and subsequent review by the court. However, presence does not necessarily translate into active participation. The practical problems involved in allowing for participation of non-attorneys in the three proposed facilities have not been addressed at all. Moreover, even procedures for participation of counsel in credible fear processing vary at points of entry across the country.
Therefore, even if members of this vulnerable and remote detained population can access counsel or another representative under expedited removal procedures, there is no guarantee that such counsel or representative can participate in the process unlike in regular INA §240 proceedings where respondents have an absolute right to counsel.
Eligibility for Relief from Removal
If a person is issued a Notice to Appear, he or she is placed in proceedings pursuant to INA §240 and advised of all his/her rights under such proceedings, including the right to counsel and the right to apply for relief from removal. Under expedited removal procedures, there is no right to counsel nor right to apply for any relief from removal other than asylum.
The persons proposed for inclusion in this expanded application of expedited removal are physically present in the United States. Some may have been apprehended as first time entrants. Many more may be persons who have resided for years in the United States, left for a brief period of time and upon return were stopped, detained and prosecuted. There may be several forms of relief available for those persons who resided in the United States for many years, and who have significant ties to the United States, including US citizen and LPR family members.
For example, many such persons may be eligible for adjustment of status under NACARA if the break in presence was minimal. Others may be eligible for adjustment of status based on family relationships. At a minimum, persons with significant family ties in the United States who may be eligible to receive an immigrant visa should be permitted to leave voluntarily or to have their applications for admission withdrawn.
Protection of Asylum Seekers
Any person located in any of the three pilot program facilities who indicates a fear of returning to his/her home country should be referred directly to an asylum officer for the normal processing of his or her application. Given the grave and serious risk of erroneous removal of asylum seekers coupled with the fact that such asylum seekers have been already present for sometime in the United States, the INS should not place such persons in expedited removal proceedings.
Given the remoteness of the proposed locations, the lack of adequate counsel and the fact that this is a particularly vulnerable population, procedures established under INA §235(b) are insufficient to guarantee the protection of bona fide refugees.
Monitoring of Procedures
The United States Congress, recognizing the potential for egregious harm to persons seeking admission to the United States (as refugees or otherwise) tasked the Immigration and Naturalization Service with monitoring the implementation of expedited removal.
Pursuant to instructions by Congress, the General Accounting Office (GAO) did conduct a study and published a report in March 1998 on expedited removal. However, while valuable, this study did not evaluate the quality or accuracy of decisions made during the expedited removal process. Congress has requested an additional study of the expedited removal process under the International Religious Freedom Act of 1998. This second Congressionally-mandated study must be completed by September 1, 2000. Unlike the GAO's earlier study, this 1998 Act allows for the possibility of outside experts to collaborate and participate with the GAO in conducting the study.
Congress has expressed its concern and sensitivity to the potential harm involved in the application of expedited removal to persons seeking admission to the United States. As a result of that concern, it has tasked federal agencies with conducting studies of the process. Given expressed Congressional concern and the ongoing studies on implementation of expedited removal, it is premature for the INS to begin expanding the process to persons physically present in the United States before the results of the studies have been received and considered.
AILF, AILA and the groups listed below are deeply concerned and, frankly, afraid that this is the first step by the Immigration and Naturalization Service to expand the use of expedited removal to persons in the interior. Despite previous assurances of INS personnel to the contrary, the proposed application of these procedures to persons detained in the three facilities represents the initiation of a chipping away of the rights of all persons physically present in the United States.
In conclusion, the detainees within the scope of the proposed expansion represent a vulnerable population against whom the new procedures should not be applied. They are persons of limited economic resources. Most do not speak English. The great majority have no understanding of our legal system or of rights they have under that system. They are detained in places far from service providers. In sum, expedited removal should not be applied in remote places to a population who, under current procedures, must struggle against almost insurmountable odds to fight for their statutory and constitutional rights. Under expedited removal, all their rights and remedies would be effectively stripped away.
Anna Marie Gallagher, Deputy Director, American Immigration Law Foundation
Jeanne Butterfield, Executive Director, American Immigration Lawyers Association
Karen Grisez, AILA Member, D.C. Chapter
Hussein Sadruddin, Lawyers' Committee for Civil Rights Under Law of Texas
Josh Bernstein, National Immigration Law Center, Washington, D.C.
Political Asylum Project, Austin, Texas
Houston Immigrant and Refugee Coalition, Houston, Texas
San Antonio Immigrant and Refugee Right Coalition, San Antonio, Texas
Catholic Campaign for Human Development, Houston, Texas
Illinois Coalition for Immigrant and Refugee Rights, Chicago, Illinois
Law Offices of Paul Zoltan, Dallas, Texas
Mexico-US Advocates Network, Heartland Alliance, Chicago
Gulfton Area Neighborhood Organization, Houston, Texas
Barbara Hines, Esq., Austin, Texas
Citizens & Immigrants for Equal Justice, Mesquite, Texas
- As an aside, we note our objection to the criminal prosecution and conviction of any person seeking asylum in the United States for the "crime" of illegal entry under 8 USC 1325(a)(1). Under its international obligations, the United States is prohibited from criminally prosecuting those persons seeking asylum in the United States for illegal entry. 1967 United Nations Protocol relating to the Status of Refugees (Protocol), Jan. 31, 1967, art. 31, 19 U.S.T. 6223 (1967).