Sunday, February 26, 2017

Immigration – Expansion of Expedited Removal – Know Your Rights

From Rich Federico – Staff Attorney (R&W) with the FPD, District of Kansas

A few weeks ago, President Trump signed several Executive Orders that shifted policy on the enforcement of immigration law within the United States. More recently, the Secretary of Homeland Security (DHS) issued memoranda to implement the President’s policies. Much has been already been written and debated concerning the legality and morality of these new policies, and this post will not engage in further debate. Rather, the purpose of this post is to highlight and discuss one potential change from a DHS Memo that will have a significant impact the ability of persons detained to receive due process.

First, it is important to distinguish between removal proceedings, which are civil matters, and criminal prosecutions for immigration offenses (such as illegal entry into the United States). If a person is charged with an immigration criminal offense, the Sixth Amendment guarantees them to right to counsel.  If that person is financially unable to hire a lawyer, one will be appointed by the court to represent them at the government’s expense. However, courts have held the Sixth Amendment does not confer the same right to counsel upon those detained pending removal proceedings who are not charged with a criminal offense.  In some cases, persons subject to removal may have a right to retain counsel under the Due Process of the Fifth Amendment. An analysis of aliens’ right to counsel in removal proceedings is detailed in a Report of the Congressional Research Service

Under the Immigration and Nationality Act, Congress established a comprehensive statutory regime to remove aliens through civil proceedings.  INA Section 235(b)(1)(A)(iii)(I) provided the Attorney General (later shifted to Secretary of DHS) to apply an expedited removal procedure to aliens who were not admitted to the United States and cannot affirmatively show, to the satisfaction of an immigration officer, that the alien has been physically present in the United States for the two-year period immediately prior to the date of the determination of inadmissibility.  Expedited Removal did not apply to certain persons, such as: unaccompanied children, asylum seekers (who get a “credible fear” interview), and those with claims of citizenship or legal status.  Additionally, for over a decade, expedited removal has been limited to persons encountered within 100 air miles of the border and 14 days of entry, and those who arrived by sea or other than a port of entry.

The Secretary of DHS issued a memo stating his intention to exercise his sole discretion, provided by statute, to change the rules regarding expedited removal to expand the traditional 100-mile rule. The Secretary explains his view the need to expand expedited removal due to the “surge of illegal immigration at the southern border” and a backlog of cases before immigration judges. Coming soon to the Federal Register will be a new “Notice Designating Aliens Subject to Expedited Removal.” It is expected that the new Notice will push the expedited removal far beyond the border region, to capture the entirety of the country. Furthermore, the 14-day guideline will be expanded to two years. In other words, those persons arrested and detained on immigration matters in Kansas may be subject to expedited removal if they cannot show that they have been in Kansas for the last two years. 

If DHS does what is expected, this is a major sea change in the enforcement of immigration law and policy. For those not subject to expedited removal but instead go through the regular removal process, the INA confers due process rights, such as: the privilege of being represented by counsel, at their own expense; a reasonable opportunity to examine the evidence; to present their own evidence; and to cross-examine government witnesses. The proceeding occurs before an Article I immigration judge, and a record of the proceeding is kept.  There also may be a right to appeal a removal order to the Board of Immigration Appeals.

Not so for expedited removal. Under expedited removal proceedings, there is no right to a hearing before a judge. The immigration officer acts as the judge to gather facts and make a determination regarding removal. The immigration officer must create a record of the facts and statements made by the alien, using a sworn statement form. The alien shall be given the opportunity to respond to the charges in a sworn statement. The immigration officer and supervisor then sign the order of removal, if they determine grounds for expedited removal have been met. No lawyer, no judge, no appeal.
As noted, there is no Sixth Amendment right to counsel in removal proceedings.  However, there is a Fifth Amendment right, which allows for counsel to appear before an immigration judge under removal proceedings. The Tenth Circuit has not weighed in whether the privilege of retained counsel representation applies to expedited removal proceedings. However, if counsel has been retained, all efforts should be made to contact counsel. 

There are also some additional practical tips that have been passed around regarding what persons can do to plan ahead, if they believe they are at risk of being detained, such as:

1.    Have a plan for children.  If they are citizens, get them passports.  Make sure their documents are in order (e.g. birth certificates) and have copies.  Make arrangements for school pick-up alternatives.  Consider a power-of-attorney and alternative care-givers.

2.    Gather documentation showing more than 2 years of physical presence within the United States (bills, medical records, school records, receipts, leases, etc.).  Keep it with you; make a copy for a spouse or relative.

3.    Memorize phone numbers – family members, neighbors, lawyers.

4.    Most important – Know Your Rights!  Do not sign anything that you don’t understand.  Don’t allow police or ICE agents into your home without a warrant – don’t consent to entry.  Ask for a lawyer.  Ask to call your family.  Exercise the right to remain silent and don’t answer questions.  Request bond.  Ask for a copy of all documents related to your case.  

5.   If an agent tells you that they have found that you are removable or going to be removed and barred from reentering, tell them that you want to contest that finding. Tell them that you do not consent to this removal and do not sign any document related to the removal.

The ACLU’s Know Your Rights Card can be found here.
Also read the New York Times, Trumps Immigration Policies Explained.

Note: Lawyers at the Federal Public Defender are not immigration attorneys and only represent persons charged with criminal immigration offenses, once appointed by the court.  The following is not meant to be, and should not be relied upon, as legal advice regarding immigration matters.  If you are in need of legal advice regarding any immigration matter, we highly recommend you seek counsel from an attorney with subject matter expertise on immigration law.

Thanks to Rich and to Immigration Attorney Angie Williams. 

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