Noncriminal immigrants facing deportation need legalization, not lawyers

by Nolan Rappaport - 04/18/17 3:40 PM ET

New York announced last week that it is allocating $10 million in its fiscal 2018 budget for creating a legal defense fund to provide lawyers for immigrants facing deportation.

Legal defense funds will not stop President Donald Trump from deporting millions of undocumented, noncriminal aliens. Lawyers are needed for removal proceedings before an immigration judge, and he will not be using the immigration court system.

As of the end of January 2017, the immigration court’s backlog was 542,411 cases. Even if no additional cases are filed, that backlog represents more than a two-and-a-half-year workload for the court’s judges.

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His plan for bypassing immigration court proceedings is described in the executive order he issued on Jan. 25, “Border Security and Immigration Enforcement Improvements.” Section 11(c) of the order directs the secretary of Homeland Security to use expedited removal proceedings to the full extent of the law. In expedited removal proceedings, an immigration officer can order the removal of an alien summarily without a hearing before an immigration judge.

Federal court review is available, but it is restricted to cases in which the alien makes a sufficient claim to being a United States citizen or to having lawful permanent resident status, or to having been admitted previously under specified circumstances, such as with refugee status.

Expedited removal proceedings were authorized by the Illegal Immigration Reform and Immigrant Responsibility Act of 1996.

In fiscal 2013, approximately 193,000 persons were deported from the United States through expedited removal proceedings. This is 44 percent of the 438,000 removals that year.

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Immigration officers conduct the expedited removal proceedings. If the immigration officer determines that the alien lacks proper documentation or has committed fraud or a willful misrepresentation to gain admission, he must order the alien’s removal from the United States, unless the alien indicates that he fears persecution.

When a persecution claim is made, an asylum officer determines whether the alien has a credible fear of persecution. The alien is not allowed to have an attorney represent him during the credible fear determination. Also, because detention is mandatory in expedited removal proceedings, the alien does not have an opportunity to gather evidence in support of his persecution claim.

If a credible fear is established, the alien is scheduled for an asylum hearing before an immigration judge.

{mosads}If the credible fear claim is rejected, the alien can request a review by an immigration judge. The review can be conducted in person or by telephonic or video connection. And it is handled as expeditiously as possible, to the maximum extent practicable within 24 hours, but in no case later than seven days after the determination that the alien has failed to establish a credible fear of persecution.

Immigrant advocacy groups have claimed that the lack of procedural safeguards in expedited removal proceedings creates a substantial risk that aliens will be removed erroneously, but they have not suggested a feasible way to move millions of undocumented aliens through proceedings that they would consider acceptable.

The absence of due process protections is permissible because IIRIA “clarified” that aliens who are in the United States without inspection are deemed to be “arriving.” In other words, they are not entitled to the rights enjoyed by aliens who have been admitted to the United States because, technically, they are not in the United States. This legal fiction has been accepted now for more than 20 years.

Previous administrations arbitrarily have limited expedited removal proceedings to aliens at the border and aliens who entered without inspection and were apprehended no more than 100 miles from the border after spending less than 14 days in the country.

But Section 235(b)(1)(A)(iii)(ll) of the Immigration and Nationality Act (INA) authorizes expedited removal proceedings for any alien “who has not been admitted or paroled into the United States, and who has not affirmatively shown, to the satisfaction of an immigration officer, that the alien has been physically present in the United States continuously for the 2-year period immediately prior to the date of the determination of inadmissibility.”

President Trump can use expedited removal proceedings to deport millions of noncriminal aliens without hearings before an immigration judge or the right to appeal removal orders to the Board of Immigration Appeals.

The only way to stop him is to find a way to work with him on a comprehensive immigration reform bill that includes a legalization program. And time is running out.

The Trump administration is quickly identifying ways to assemble the nationwide deportation force that President Trump promised on the campaign trail.

Preparations are being made for U.S. Customs and Border Protection (CBP) to hire 5,000 new officers and for U.S. Immigration and Customs Enforcement (ICE) to hire an additional 10,000. Also, ICE has identified 27 potential locations that could increase its detention space by 21,000 beds, and CBP plans to expand its detention capacity by 12,500 spaces.

But it is not too late to work on a deal that would meet the essential political needs of both parties … yet.

Nolan Rappaport was detailed to the House Judiciary Committee as an Executive Branch Immigration Law Expert for three years; he subsequently served as an immigration counsel for the Subcommittee on Immigration, Border Security, and Claims for four years. Prior to working on the Judiciary Committee, he wrote decisions for the Board of Immigration Appeals for 20 years. He also has been a policy adviser for the DHS Office of Information Sharing and Collaboration under a contract with TKC Communications, and he has been in private practice as an immigration lawyer at Steptoe & Johnson.

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