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  • Article: Due Process Implications of Expedited Removal Proceedings: Are Aliens Afforded Procedural Due Process Protection During Their Credible Fear Interview Process Under Section 235(b)(1) of the Immigration and Nationality Act? By Ogochukwu I. Agwai

    Due Process Implications of Expedited Removal Proceedings: Are Aliens Afforded Procedural Due Process Protection During Their Credible Fear Interview Process Under Section 235(b)(1) of the Immigration and Nationality Act?

    by


    I. Introduction

    The terrorist attacks on United States’ soil has “spurred a burst of interest” on our immigration laws.[1] From the 1993 terrorist attack on the World Trade Center to the most recent shooting on December 2, 2015 in San Bernardino, California, the news media has persistently blamed these events in part on lax immigration policies, incompetent border patrols, and careless background checks on the visa applicants.[2] The New York Times published an article shortly after the San Bernardino terrorist attack asserting that carelessness in conducting immigration background checks missed the perpetrators “violent jihad” views on social media weeks before they were admitted into the United States.[3] Many political candidates build their campaign platforms on reforming our immigration laws and as Donald Trump recently stated, he will “ban all Muslim travel to the United States” if he is elected as Commander-in-Chief. [4]

    In response to the 1993 terrorist plot, Congress passed the Illegal Immigration Reform and Immigration Responsibility Act (IIRIRA) “that altered how deportation and exclusion proceedings were conducted”.[5] The removal process became more “structured to render the deportation decision a rigid, mechanical process that leaves no discretion to the factfinder.”[6] IIRIRA added the expedited removalprovision to the Immigration and Nationality Act (INA) and expanded the list of aggravated felonies to include nonviolent offenses.[7] Noncitizens found to have committed certain offenses or who had served prison sentences for at least a year were referred to as aggravated felons and therefore, were placed in expedited removal proceedings.[8] Section 236(c) (2015) of the INA grants the Attorney General “broad discretion” to impose mandatory detention on aliens whose immigration proceedings are predicated on their aggravated felonies.[9] In addition, § 235(b)(1) (2015) grants the Attorney General broad discretionary powers to place aliens who fall under the “arriving aliens” or “certain other aliens” categories in expedited removal proceedings. Aggravated felons, “arriving aliens,” and “certain other aliens,” once apprehended by an immigration officer, are mandatorily detained in immigration cells pending immediate removal from the country unless they express credible fear of persecution or torture if returned to their countries of origin.[10] The United States as a member of the 1951 Refugee Convention and the Convention Against Torture, is mandated to accommodate “refugees” entering the country who express credible fear of persecution or torture on the basis of “race, religion, nationality, membership of a particular social group, or political opinion.”[11]

    As a general matter, the immigration officer makes the final decision to remove an alien who fails to prove that he is a refugee under any of the five categories.[12] However, § 235(b) allows for the alien to request a second review of the removal order from an immigration judge. This second review is not an administrative appeal but rather, more like a “supervisory” review of the officer’s order.[13] If the immigration judge disagrees with the officer’s decision, he may reverse the negative credible fear determination and place the alien in regular removal proceedings to determine eligibility for asylum, withholding of removal, or convention against torture.[14] If the immigration judge however is satisfied with the officer’s negative credible fear determination, he may affirm the officer’s order and order that the alien be immediately removed from the country.[15] The immigration judge’s decision here is final and is not subject to appeal at the Board of Immigration Appeals (Board) or Circuit Courts of Appeals.[16] Section 8 C.F.R. 1003.42(f) asserts that “No appeal shall lie from a review of an adverse credible fear determination made by an immigration judge.”

    As you may imagine, there are several habeas corpus petitions in Article III courts raising constitutional questions on the expedited removal statutes.[17] Several petitioners argue that expedited removal denies them their Fifth Amendment procedural due process protection under the Constitution.[18] Federal courts have struggled to find justification to answer whether aliens deserve any protections at all under the Fifth Amendment.[19] The United States Supreme Court has held in several cases that aliens deserve constitutional protection and at the same time, it has deferred to Congress’ broad powers to regulate immigration proceedings including deportation proceedings.[20] In answering these questions, some federal courts have examined the legislative history of expedited removal proceedings including the significant possibility standard of review.[21] On the other hand, other courts have examined the different categories of aliens IIRIRA created and how each category determines whether the alien should be placed in § 235 expedited removal proceedings or § 240 regular removal proceedings.[22] Under § 235(b), arriving aliens and certain other aliens are noncitizens without lawful immigration status in the country, while aggravated felons include noncitizens without lawful immigration status as well as lawful permanent residents who have committed one of the listed criminal offenses under § 101(a)(43)(f) (2014) of the INA.

    The goal of this paper is to address the various constitutional inquiries relating to the expedited removal proceedings. I will begin my analysis with an overview of the credible fear interview process as well as the standard of review under in the statute. I will then provide explanation of the different classes of aliens placed in expedited removalproceedings and how their various immigration statuses place them in different types of removal proceedings. Lastly, I will be proposing solutions on how to resolve the tension between the courts and legislative intent regarding the expedited removal process.

    II. Overview of Expedited Removal: Congress’ Intent on Credible Fear Interviews and the Significant Possibility Standard of Review.

    As mentioned earlier, Congress enacted IIRIRA that added the expedited removal provision to the INA.[23] Congress “mandated” for expedited removal to remove persons “deemed inadmissible at the border under INA § 212(a)(6)(C) (material misrepresentation) and INA § 212 (a)(7) (lack of IV or NIV documents.)”.[24] Aliens apprehended at a port of entry such as an airport or any of the land borders without proper documentation are placed in a “screening process” called credible fear interview if they express that they will be persecuted or tortured if returned to their home country.[25] Credible fear may be defined as:

    “a significant possibility, taking into account the credibility of the statements made by the alien in support of the alien’s claim and such other facts as are known to the officer, that the alien could establish eligibility for asylum…” § 235(b)(1)(B)(v).

    Although the ordinary meaning of the word significant implies, a heightened standard of review, Congress intended for the standard to be a low screening process, greater than a “mere possibility.”[26] The alien need not establish that his testimony or evidence will “more likely than not” be found credible in a full asylum hearing.[27] In making a credible feardetermination, an immigration officer must consider: (1) trauma the applicant endured; (2) passage of a significant amount of time since the described event occurred; (3) cultural factors and challenges inherent in cross-cultural communication; (4) if the applicant was ever detained; (5) problems with accents, dialect, ethnic or class differences between the interpreter and the applicant; and (6) unfamiliarity with speakerphone technology, the use of an interpreter the applicant cannot see, or the use of an interpreter the applicant.[28] By eliminating “evidentiary hearings” and “strictly limiting judicial review,” Congress reasoned that the credible fear screening process would “quickly identify potentially meritorious claims to protection and resolve frivolous ones with dispatch…”[29] Congress intent of the “screening process” was to reduce immigration backlogs and remove thousands of undocumented aliens from the country.[30] As expressed in the statute and as noted above, an immigration judge’s negative credible fear determination is final and is not subject to an appeal to the Board or an Article III court. § 235(b)(1)(B)(iii) – (C).

    III. The Different Categories of Aliens: Arriving Aliens, Certain Other Aliens, and Aggravated Felons.

    When IIRIRA added the expedited removal provision to the INA, it created three categories of aliens known as: (1) arriving aliens; (2) certain other aliens; and (3) aggravated felons. § 235(b)(1)(A)(i)-(iii); see also § 236(c).

    1. Arriving Aliens:

    The Code of Federal Regulation defines arriving aliens as an:

    “Applicant for admission coming or attempting to come into the United States at a port-of-entry, or an alien seeking transit through the United States at a port-of-entry, or an alien interdicted in international or United States waters and brought into the United States by any means whether or not to a designated port-of-entry, and regardless of the means of transport.” 8 C.F.R. §§ 1.2 and 1001.1(q).

    Courts have adopted the ordinary meaning of the word “arriving” and have interpreted the statute to mean aliens seeking admission into the country at a port of entry. [31] These aliens appear at a land border or airport either with a nonimmigrant visa stamp on their passports, or with fraudulent documentation, or sometimes, with no documentation at all.[32] Arriving aliens who appear without a valid visa on their passport are immediately placed in expedited removal proceedings unless they express credible fear of persecution or torture as stated above.[33] An immigration officer may also put an arriving alien with a valid visa stamp on their passport in expedited removal proceedings if he reasonably believes that the alien does not only intend to visit but to permanently relocate to the United States.[34] Arriving aliens are vulnerable to immediate removability because they do not have any form of immigration status in the country.[35] The immigration officer, in exercising his broad discretionary powers delegated to him under the statute determines whether the alien meets the significant possibility standard of review.[36] Even though international law mandates countries to admit intending refugees, the Supreme Court in Murray v. Schooner Charming Betsy, The,(popularly known as the Charming Betsy Doctrine) heldthat when a statute expressly states Congress’ intent, that statute takes precedence over international law even if it contradicts the international law. 6 U.S. (2 Cranch) 64 (1804). As a result, the Supreme Court has held in several cases including in Matthews, that Congress has broad powers to “regularly make laws that would be unacceptable if applied to citizens.” 426 U.S. at 80. In Demore, the court held thatdeportation proceeding was a “constitutionally valid” area where Congress could regulate and may discriminate aliens from citizens. 538 U.S. at 511. Arriving aliens are more likely to be denied adequate due process protection because they do not have valid immigration status in the country.[37]

    1. Certain Other Aliens

    Certain other aliens may be defined as:

    “Aliens who are inadmissible under sections 212(a)(6)(C) or (7) of the Act, who are physically present in the U.S. without having been admitted or paroled following inspection by an immigration officer at a designated port-of-entry, who are encountered by an immigration officer within 100 air miles of any U.S. international land border, and who have not established to the satisfaction of an immigration officer that they have been physically present in the U.S. continuously for the 14-day period immediately prior to the date of encounter.” See Notice Designating Aliens For Expedited Removal, 69 Fed. Reg. 48,877, 48,880 (Aug. 11, 2004).

    This category was designed to capture all other aliens seeking entry into the United States but were excluded from the arriving alien category.[38] The major difference between certain other aliens and arriving aliens is that certain other aliens are apprehended within the United States because they fraudulently bypassed admission or parole by an immigration officer.[39] Unlike arriving aliens who are confronted at a port of entry or land border, here certain other aliens bypass the immigration officers at the borders by using illegal means such as jumping over our borders fences.[40] These aliens enter the United States from neighboring countries like Canada and Mexico even though they may not always be Canada or Mexico citizens.[41] Sometimes, aliens come from far away countries such as Libya, Yemen, Afghanistan, or Somalia, gain admission into Mexico or Canada, and attempt to enter the United States through Canada or Mexico illegally.[42] Just like arriving aliens, certain other aliens are subject to “immediate removal, without further review” unless they establish that they have credible fear of persecution or torture if returned to their home country.[43] Certain other aliens are just as vulnerable as arriving aliens to be denied procedural due process protection because they do not have lawful immigration status in the country at all.[44]

    1. Aggravated Felons

    The final category of aliens IIRIRA impacted is the aggravated felony category. Aggravated felons include undocumented aliens however the focus here will be on lawful permanent residents because undocumented aliens convicted of aggravated felons are in the same category as certain other aliens.[45] Although the ordinary meaning of the word “aggravated” implies serious crimes, and the word “felony” triggers the criminal justice system, “aggravated felony” is solely an immigration term that was coined for expedited removal proceedings.[46] After IIRIRA, aggravated felony was expanded to include nonviolent criminal offenses such as obstruction of justice, drug offenses, perjury, driving under intoxication, and other minor infractions which the alien may have served at least one year in jail.[47] Because aggravated felony is solely an immigration term, there are instances where the alien may not need a criminal conviction to be treated as an aggravated felon.[48] A police record or citation may be sufficient for an individual to be treated as an aggravated felon and hence, placed in expedited removal proceedings.[49]

    Aggravated felons are not limited to aliens without immigration status but may also include lawful permanent residents who have resided in the United States for many years.[50] In Gayle v. Johnson, the named Plaintiffs in a class action suit had been residing in the United States for an average of thirty years before they committed their offenses. 4 F. Supp. 3d at 698. In Theagene v. Gonzalez, the Plaintiff had been in the United States as a lawful permanent resident since the age of six and had not visited his home country since his arrival. 411 F.3d 1107 (9th Cir. 2005). He served in the military during the first Gulf War and was honorably discharged in the 1990s.[51] In Bailey v. Holder, the Plaintiff entered the United States at the age of six as a lawful permanent resident, and operated a successful trucking business with his wife and two kids. 470 Fed. Appx. 206 (4th Cir. 2012). Unfortunately, Mr. Bailey was ordered removed from the country because he pled guilty to possession of marijuana after a Drug Enforcement officer tracked a marijuana shipment to his home. [52] The shipment was not his but his attorney advised him to plead guilty instead of going for a full trial.[53] His attorney wrongly advised him that his criminal conviction will not incriminate his opportunity to apply for citizenship.[54]

    Aggravated felons who are lawful permanent residents are ineligible for: (1) discretionary waiver of deportability; (2) Asylum; (3) Cancellation of removal; (4) Voluntary departure; (5) Withholding of removal; (6) Re-admission to the United States; and (7) United States citizenship.[55] The primary difference between aliens in this category and arriving aliens or certain other aliens is that as lawful permanent residents, they are placed in regular deportation proceedings instead of expedited removal because of their lawful immigration status.[56] However, the outcome is typically identical because even in regular deportation proceedings, lawful permanent residents lose their immigration status, are treated like undocumented aliens, and are automatically barred from immigration benefits.[57] For instance, § 208(b)(2)(A)(ii), (B)(i) of the INA provides that:

    Asylum shall not be granted if “the alien, having been convicted by a final judgment of a particularly serious crime, [that] constitutes a danger to the community of the United States… For purposes of clause (ii) of subparagraph (A), an alien who has been convicted of an aggravated felony shall be considered to have been convicted of a particularly serious crime.”

    Regardless of how minor the offenses may be, or the number of years aggravated felons may have resided in the United States, they may be in a worse position than arriving aliens or certain other aliens because they are denied immigration benefits even if they may have credible fear that they will be persecuted or tortured in their home countries.[58] Although the legal term is called regular removal proceeding, in practice, lawful permanent residents who are aggravated felons are treated just like they are in expedited removal proceedings.[59]

    IV. Circuit Split on Procedural Due Process Protection on Expedited Removal Proceedings: Are Aliens Afforded “Meaningful Review” in Federal Courts?

    In Hagar v. Reclamation Dist. No. 108, the Supreme Court defined procedural due process as “one which, following the forms of law, is appropriate to the case, and just to the parties to be affected.” 11 U.S. 701 (1884). Procedural due process must be adopted “wherever it is necessary for the protection of the parties,” and it must allow individuals “an opportunity to be heard respecting the justice of the judgment sought.”[60] In Mendoza-Lopez, the court held that procedural due process affords all aliens within our territory rights to “meaningful” judicial review on their expedited removal order. 481 U.S. at 828. In United States ex rel. Knauff v. Shaughnessy, the court ruled that “whatever the procedure authorized by Congress” on removal proceedings are, aliens should be entitled to those procedures as well. 338 U.S. 537, 544 (1950). However, the Supreme Court held in Demore that aliens “residing in the United States… are entitled [to due process] so long as they are permitted by the government of the United States to remain in the country, to the safeguards of the Constitution…” 538 U.S. at 543. On one hand, the court allows judicial review on a contested expedited removal order, while on the other hand, the court defers to Congress’ broad powers to regulate due process protection on aliens admitted or paroled into the country.[61] The opinion of the court tends to sway by the number of liberal and conservative justices voting on each case.[62] In Mendoza-Lopez,Justice Marshall known for his liberal views wrote the majority opinion getting support mainly from the liberal justices while in Demore, Justice Rehnquist a strong conservative wrote the majority’s opinion for the court with support mainly from his conservative colleagues. 481 U.S. at 830; 538 U.S. at 513.

    The division in the Supreme Court has resulted in a split among the circuit courts on expedited removal proceedings. Majority of the circuits tend to follow the Demore ruling by deferring to Congress’ intent to strip federal courts from jurisdiction to hear expedited removal cases.[63] While the minority circuits follow the Mendoza-Lopez ruling by granting limited judicial review on expedited removal proceedings.[64] The Seventh Circuit in Khan held that federal courts “lack[ed] jurisdiction to inquire whether the expedited removal procedure to which the [petitioners] were subjected to was properly invoked.” 608 F.3d at 330. The petitioners here were arriving aliens with a valid visitor visa stamp on their passports seeking entry into the United States.[65] At the Chicago O’Hare airport, the Customs and Border Patrol (CBP) officer revoked their visitor visas because he did not believe that the petitioners intended a short stay in the United States.[66] The officer then placed the aliens in expedited removal proceedings to be immediately removed from the country.[67] The Khans petitioned the federal district court raising due process inquiries on the lack of judicial review on an officer’s negative credible fear determination.[68] On appeal, the Seventh Circuit held that Congress “clearly” intended to strip federal courts on jurisdiction on expedited removal cases.[69] In Brumme, the Fifth Circuit held that the expedited removal statute on its face precluded judicial review. 275 F.3d at 443. The court held that the “plain language” of the statute was clear and that there was an “unexceptional rule that courts must give effect to the clear meaning of statutes as written.”[70] The alien here was an arriving alien witha valid visitor’s visa seeking entry into the United States just like in Khan.[71] However, similar to Khan,the alien was denied entry into the country because the CBP officer believed her to be an intending immigrant.[72] The Fifth Circuit deferred to Congress’ broad powers in stripping federal courts from jurisdiction to hear cases on expedited removal proceedings.[73]

    The Ninth Circuit on the other hand is the only circuit court thus far following Justice Marshall’s liberal interpretation on the expedited removal statutes. In Barajas-Alvarado, the court held that an alien was “entitled to judicial review of a claim that the prior proceeding was fundamentally unfair.” 655 F.3d at 1085. The central question was whether aliens could challenge a prior immigration judge’s expedited removal order used as a predicate to place the alien in a current expedited removal proceeding.[74] The alien here was an arriving alien attempting re-entry into the United States in violation of prior expedited removal order.[75] Section 276 (2015) of the INA, asserts that an alien’s attempt to re-enter the United States in violation of a prior removal order is an aggravated felony. Although the court ruled in favor of the government because the petitioner was unable to meet his burden of proof to show that there were procedural flaws in his prior removal order, the court held that if a prior removal order will play a “critical role in the subsequent imposition of a criminal sanction,” that order may be challenged if there were procedural flaws.[76] In Mendoza-Lopez, the Supreme Court held that an immigration judge failing to inform an alien about his right to counsel in an expedited removal proceeding was a violation of the alien’s procedural due process right and that alien may seek judicial review in federal courts. 481 U.S. at 841.

    V. Solution: More Judicial Oversight on Expedited Removal Proceedings.

    As one commentator asserts, due process “entails a constitutional guarantee that no person shall be deprived of life, liberty, or property, without receiving certain procedural safeguards.”[77] Prior to IIRIRA, the Supreme Court in United States v. Verdugo-Urquidez interpreted “persons” subject to constitutional protection as a “class of persons who are part of a national community or who have otherwise developed sufficient connection with this country to considered part of [the] community.” 494 U.S. 259, 265 (1990). Due process did not depend on an individual’s immigration status but rather, if that individual was within our borders.[78] “Constitutional guarantees” then included minimum due process protection such as the right to “challenge the government’s evidence, and to appeal an immigration judge’s decision.”[79] However, after IIRIRA, expedited removal has stripped federal courts from judicial review on a final agency action.[80] Low level immigration officers can now make final agency actions that can be so fatal on an individual’s life.[81] There is no administrative appeal on an officer’s negative credible fear determination and there is no judicial review on an immigration judge’s final credible determination. § 8 C.F.R. 1003.42(f).

    Although Congress has a legitimate concern about terrorism to enact IIRIRA, I believe however that IIRIRA is overinclusive in advancing Congress’ interest on curbing terrorism.[82] The cases mentioned above have revealed how an alien who has no association with terrorism may become a prey of the IIRIRA statute. An amicable solution will be judicial review on a case by case basis to ensure that aliens who deserve procedural due process are well protected. Judicial review on the executive and legislature is a long standing tradition our Constitution has upheld through our system of checks and balances.[83] Each branch of government is to ensure that the other is not too powerful that it cannot be controlled by the people who have elected the public officials into power.[84] To continue our constitutional structure on checks and balances, the judiciary should be able to check executive and legislature’s powers on expedited removal proceedings through the kinds of cases that enter the courts.[85] By expressly stripping judicial review on these cases, the executive and legislature have limited oversight on how they use their powers.[86] Secondly, we must remember that the aliens who are removed from the country in these proceedings have no power in the “political process”.[87] They are not allowed to vote and the lawful permanent residents who were once on their track to citizenship are stripped from their immigration status because of their aggravated felony offenses.[88] As the Ninth Circuit held in Bajaras-Alvarado that § 235(b) was unconstitutional to the extent that it denied aliens judicial review on a prior removal order that violated procedural due process, there should more input from federal judges who their primary responsibility is to interpret our laws. F.3d at 1086. Judicial review on these cases help ensure that the executive and legislature are operating within the bounds of law.[89]

    Furthermore, assuming that § 235(b) is constitutional, the judiciary should still be able to check on the executive in areas where the executive may have abused its discretion. For instance, the only check on a CBP officer’s credible fear determination is a supervisory review from a superior officer and from an immigration judge.[90] In addition, immigration hearings are not open to the public and the immigration judges’ opinions are not published for public review.[91] So not only is there little to no judicial oversight, there is also no public oversight on expedited removal proceedings.[92] The need for judicial review on the executive is pressing in these cases because there is a high temptation for immigration judges and officers to abuse the powers delegated to them in the statute. This is exactly the type of problem that the system of checks and balances was designed to avoid in the first place.[93]

    Lastly, I believe the penalties associated with aggravated felonies is too harsh. Aggravated felons who were once lawful permanent residents lose their immigration status and are automatically barred from immigration benefits.[94] As stated earlier, aggravated felonies include nonviolent criminal offenses such as perjury, obstruction of justice, drug offenses, etc.[95] Since aggravated felonies in general are predicated on states’ criminal offenses, some federal courts have been forced to conduct analysis on whether an individual’s state crime is a “particularly serious crime” to constitute an aggravated felony.[96] This creates a lack of uniformity among circuits on what state crimes are “particularly serious” to trigger immigration penalties associated with aggravated felonies.[97] There should be an exception to nonviolent offenses and aggravated felons who have resided in the United States for a number of years. Individuals under this category should be afforded statutory waiver of deportability instead of the categorical ban they currently face under the statute.

    While I am not advocating for the whole of IIRIRA to be repealed or that Congress concern on terrorism is attenuated to immigration, I am simply arguing for more judicial review on these proceedings and more leniency to permanent residents who have committed aggravated felonies. As we boast of America as the “strong and the brave,” “land of milk and honey,” may we also remember in James Madison’s words, that “America is indebted to immigration for her settlement and prosperity…”

    Endnotes



    [1] Stock, Margaret, United States Immigration Laws in a World of Terror, The Federalist Society of Law & Public Policy, Dec. 01, 2003, at A1 available at http://www.fed-soc.org/publications/detail/united-states-immigration-law-in-a-world-of-terror.

    [2] See id.

    [3] Apuzzo, Matt, et. al. U.S. Visa Process Missed San Bernardino Wife’s Online Zealotry, N.Y. Times, Dec. 12, 2015, at C1 available at http://www.nytimes.com/2015/12/13/us/san-bernardino-attacks-us-visa-process-tashfeen-maliks-remarks-on-social-media-about-jihad-were-missed.html (Authorities’ lax immigration screening failed to discover Tashfeen Malik’s “online messaging platform” that expressed her “views on violent jihad” weeks before she was admitted into the United States).

    [4] Diamond, Jeremy, Ban all Muslim travel to U.S., CNN Politics, Dec. 8, 2015, available at http://www.cnn.com/2015/12/07/politics/donald-trump-muslim-ban-immigration/.

    [5] Dona, Julia, Making Sense of “Substantially Unlikely”: An Empirical Analysis of the Joseph Standard in Mandatory Detention Custody Hearings, 26 Geo. Immigr. L.J. 65 (2011).

    [6] Reyes, Maritza, Constitutionalizing Immigration Law: The Vital Role of Judicial Discretion in the Removal of Lawful Permanent Residents, 84 Temp. L. Rev. 637 (2012).

    [7] See Asylum Division Officer Training Course, Lesson Plan: Credible Fear of Persecution and Torture Determinations, Memorandum to Asylum Office Directors (Washington, DC: Feb. 28 2014) available at http://cmsny.org/wp-content/uploads/...d-torture.pdf; see also Ecolani, Steve, Why Are Immigrants Being Deported for Minor Crimes, THE ATLANTIC, Nov. 20, 2013, available at http://www.theatlantic.com/national/...crimes/281622/

    [8] See Zadvydas v. Davis, 533 US 678, 697 (2001).

    [9] See also I.N.S. v. St. Cyr, 533 U.S. 289 (2001).

    [10] See United States v. Barajas-Alvarado, 655 F.3d 1077, 1082 (2011).

    [11] See § 2242(b) of the Foreign Affairs Reform and Restructuring Act of 1998 (Pub. L. 105-277, Division G, Oct. 21, 1998). See also Matthews v. Diaz, 426 U.S. 67, 81 (1976) (“(A)ny policy toward aliens is vitally and intricately interwoven with contemporaneous policies in regard to the conduct of foreign relations, the war power, and the maintenance of a republican form of government.”).

    [12] See Barajas-Alvarado, 655 F.3d at 1082.

    [13] 8 C.F.R. 1003.42(f) (2011).

    [14] Id.

    [15] Id.

    [16] See id.

    [17] See Demore v. Kim, 538 U.S. 510 (2003); U.S. v. Mendoza-Lopez, 481 U.S. 828 (1987); Barajas-Alvarado, 655 F.3d at 1080-81.

    [18] See Mendoza-Lopez, 481 U.S. at 828.

    [19] See id.; Demore, 538 U.S. at 540 (Souter, J. concurring).

    [20] See Demore, 538 U.S. at 511.

    [21] See Smith v. U.S. Customs and Border Protection, 785 F. Supp. 2d 962 (W.D. Wash. 2011); Barajas-Alvarado, 655 F.3d at 1083.

    [22] See Khan v. Holder, 608 F.3d 325 (7th Cir. 2010); Brumme v. I.N.S., 275 F.3d 443 (5th Cir. 2001).

    [23] See Kurzban, Ira, Immigration Law Sourcebook: A Comprehensive Outline and Reference Tool, 180 (14th Ed. 2014).

    [24] See id. IV means Immigrant Visas and NIV means Non-Immigration Visas.

    [25] See also Asylum Division Officer Training Course, supra at 14.

    [26] See 142 CONG. REC. H11071, H11081 (daily ed. Sept. 25, 1996) (statement of Rep. Hyde).

    [27] See id.

    [28] See Asylum Division Officer Training Course, supra at 19.

    [29] See Immigration and Naturalization Service, Regulations Concerning the Convention Against Torture, 64 Fed. Reg. 8478, 8479 (Feb. 19, 1999); see also H.R. Rep. No. 104-469, pt. 1, at 158 (1996).

    [30] See id.

    [31] See Alaka v. Elwood, 225 F. Supp. 2d 547, 549 (E.D. Pa 2002).

    [32] Id. at 553.

    [33] See id.

    [34] Khan 608 F.3d at 325.

    [35] See Alaka, 225 F. Supp. 2d at 553-54.

    [36] See Asylum Division Officer Training Course, supra at 24.

    [37] Id. at 521.

    [38] See In re X-K-, 23 I&N Dec. 731 (BIA 2005).

    [39] See id at 732-33.

    [40] See Id.

    [41] Mora, Edwin, Canadian Border Bigger Threat Than Mexican Border, Says Border Patrol Chief, CNSNEWS, May 18, 2011, available at http://cnsnews.com/news/article/canadian-border-bigger-terror-threat-mexican-border-says-border-patrol-chief.

    [42] See id.

    [43] See In re X-K-, 231 I&N Dec. at733.

    [44] See id.

    [45] See In re X-K-, 231 I&N Dec. at733.

    [46] See Constitutionalizing Immigration Law: The Vital Role of Judicial Discretion in the Removal of Lawful Permanent Residents, supra at 662-63.

    [47] Id. at 665.

    [48] See id.

    [49] Id.

    [50] See Gayle v. Johnson, 4 F. Supp. 3d 698 (D.N.J. 2014).

    [51] See id. at 1109.

    [52] Bailey, Howard, I Served my Country. Then it Kicked Me Out, Politico Magazine, Apr. 10, 2014, available at http://www.politico.com/magazine/story/2014/04/howard-dean-bailey-deported-i-served-my-country-and-then-it-kicked-me-out-105606.

    [53] See id.

    [54] See id.

    [55] See Constitutionalizing Immigration Law: The Vital Role of Judicial Discretion in the Removal of Lawful Permanent Residents, supra at 666-667.

    [56] See id. at 665.

    [57] See id. at 666.

    [58] See id. at 639-641.

    [59] Id.

    [60] Id.

    [61] See id at 511; see also Mendoza-Lopez, 481 U.S. at 828.

    [62] Bravin, Jess, & Kendall, Brent, Supreme Court Justices Appear Split on Immigration Case, Wall Str. J. Apr. 18, 2016, available at http://www.wsj.com/articles/supreme-court-focuses-on-states-legal-right-to-question-immigration-policy-1460994167

    [63] See generally Khan, 608 F. 3d at 325.

    [64] See Barajas-Alvarado, 655 F.3d at 1077, 1085 (“Under our case law, a predicate removal order satisfies the condition of being ‘fundamentally unfair’ for purposes of § 1326(d)(3) when the deportation proceeding violated the alien's due process rights and the alien suffered prejudice as a result.”).

    [65] Id.

    [66] See id.

    [67] Id. at 326.

    [68] Id.

    [69] See id. at 329.

    [70] Id. at 448.

    [71] Id at 445.

    [72] Id.

    [73] Id. at 446.

    [74] See id. at 1079.

    [75] Id. at 1081.

    [76] See Barajas-Alvarado, F.3d at 1083, 1086 (“we must conclude that § 1225(b)(1)(D) [§ 235(b)(1)(D) is unconstitutional to the extent it prohibits ‘some meaningful review’ in a § 1326 [§ 276] criminal prosecution of a claim that the proceeding that resulted in the expedited removal order was fundamentally unfair.” (emphasis in original).

    [77] Gebisa, Ebba, Constitutional Concerns with the Enforcement of Expedited Removal, 2007 U. Chi. Legal F. 565 (2007).

    [78] See Yick Wo v. Hopkins, 118 US 356, 368-69, 374 (1886) (holding that the Fourteenth Amendment is not confined to the protection of citizens, and it protects aliens within the jurisdiction of the U.S. from deprivation of life, liberty, or property without due process of law).

    [79] Id. at 577.

    [80] Id.

    [81] Id. at 566.

    [82] See Gebisa, Ebba, Constitutional Concerns with the Enforcement of Expedited Removal, supra at 586-587.

    [83] See Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579 (1952) (Franfurter, J., concurring).

    [84] See id at 593.

    [85] See Constitutionalizing Immigration Law: The Vital Role of Judicial Discretion in the Removal of Lawful Permanent Residents, supra at 641.

    [86] See id.

    [87] See id. at 639.

    [88] See id.

    [89] See Mendoza-Lopez, 481 U.S. at 841.

    [90] Id. at 576. See also 8 C.F.R. 1003.42(f).

    [91] See Press Release, U.S. Dep’t of Justice, Attorney General Alberto R. Gonzales Outlines Reforms for Immigration Courts and Board of Immigration Appeals, Aug. 9, 2006, available at https://www.justice.gov/archive/opa/...06_ag_520.html.

    [92] See id.; see also See Constitutionalizing Immigration Law: The Vital Role of Judicial Discretion in the Removal of Lawful Permanent Residents, supra at 641.

    [93] See Youngstown Sheet & Tube Co, 343 U.S. at 592.

    [94] See Constitutionalizing Immigration Law: The Vital Role of Judicial Discretion in the Removal of Lawful Permanent Residents, supra at 666.

    [95] Id. at 665

    [96] See Evanson v. Attorney General of the United States, 550 F.3d 284, (3rd Cir. 2008); see also § 208(b)(2)(A)(ii), (B)(i).

    [97] See id. at 291.


    About The Author

    Ogochukwu I. Agwai is a third-year law student at The George Washington University Law School focusing on international law and human rights. She has three years of experience working for a member of Congress (Congressman Gregory Meeks) handling immigration matters; has clerked for The U.S. Department of Justice, Executive Office of Immigration Review, Office of General Counsel; and currently works for Perles Law Firm, P.C., a boutique firm in Washington, D.C. handling international human rights litigation.


    The opinions expressed in this article do not necessarily reflect the opinion of ILW.COM.

    Comments 1 Comment
    1. ImmigrationLawBlogs's Avatar
      ImmigrationLawBlogs -
      Ogochukwu, I disagree with you on the congressional intent in establishing expedited removal proceedings. Prior to IIRIRA, aliens were appearing at our border and asking for a hearing before an immigration judge in exclusion proceedings (now lumped together with deportation proceedings as removal proceedings). They would be allowed into the country and then released with instructions to come back when notified of their hearing dates. How many of them do you think came back for hearings? Expedited removal proceedings was intended to summarily turn people around at the border and send them on their way unless there was reason to think they have legitimate asylum claims. If you want more due process, find a way to eliminate the absconding problem and a way to provide them with hearings. I think hearings are backed up now by five years. Not sure. But it's a long time. In other words, I don't think what you are asking for is possible.

      But there is a more basic question. Does the United States have to accept asylum applications from aliens at the border seeking admission? Would it violate the constitution if Congress amended the asylum provisions in the INA to eliminate asylum applications from aliens at our border seeking admission? And would it violate the constitution if the president stopped the acceptance of asylum applications from such aliens with the issuance of an executive order pursuant to his/her authority under section 212(f) of the Immigration and Nationality Act (INA), the pertinent part of which read as follows:

      Whenever the President finds that the entry of any aliens or of any class of aliensinto the United States would be detrimental to the interests of the United States,he may by proclamation, and for such period as he shall deem necessary, suspendthe entry of all aliens or any class of aliens as immigrants or nonimmigrants, orimpose on the entry of aliens any restrictions he may deem to be appropriate.
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