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Matthew Kolken on Deportation And Removal

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  1. 9th Circuit to Review Executive Order Injunction En Banc

    by , 02-13-2017 at 07:24 AM (Matthew Kolken on Deportation And Removal)
    Via the order:

    A judge on this Court has made a sua sponte request that a vote be taken as to whether the order issued by the three judge motions panel on February 9, 2017,should be reconsidered en banc. A sua sponte en banc call having been made, the parties are instructed to file simultaneous briefs setting forth their respective positions on whether this matter should be reconsidered en banc. The briefs should be filed on or before 11:00 a.m., Pacific time, on Thursday, February 16. The supplemental briefs shall be filed electronically and consist of no more than 14,000 words.

    I'll keep you posted as new information becomes available.
  2. The Constitution Free Zone

    by , 02-13-2017 at 06:53 AM (Matthew Kolken on Deportation And Removal)

    I've written about this before, but it remains very much applicable given recent events. The majority of people living in the United States live within 100 miles of a border, which is an area that has been dubbed the Constitution Free Zone. The zone is a place where Customs and Border Protection (CBP) claims to maintain "extra-Constitutional" powers to stop individuals they deem to be in violation of U.S. immigration law. The Constitution Free Zone impacts approximately two-thirds of the entire population of the United States, citizen and immigrant alike, which is a population into the hundreds of millions.

    If you are stopped by Border Patrol, it is imperative that you know your rights.

    Via the ACLU:

    The Problem:

    • The Fourth Amendment of the U.S. Constitution protects Americans from random and arbitrary stops and searches.
    • According to the government, however, these basic constitutional principles do not apply fully at our borders. For example, at border crossings (also called "ports of entry"), federal authorities do not need a warrant or even suspicion of wrongdoing to justify conducting what courts have called a "routine search," such as searching luggage or a vehicle.
    • Even in places far removed from the border, deep into the interior of the country, immigration officials enjoy broad—though not limitless—powers. Specifically, federal regulations give U.S. Customs and Border Protection (CBP) authority to operate within 100 miles of any U.S. "external boundary."
    • In this 100-mile zone, Border Patrol agents have certain extra-Constitutional powers. For instance, Border Patrol can operate immigration checkpoints.
    • Border Patrol, nevertheless, cannot pull anyone over without "reasonable suspicion" of an immigration violation or crime (reasonable suspicion is more than just a "hunch"). Similarly, Border Patrol cannot search vehicles in the 100-mile zone without a warrant or "probable cause" (a reasonable belief, based on the circumstances, that an immigration violation or crime has likely occurred).
    • In practice, Border Patrol agents routinely ignore or misunderstand the limits of their legal authority in the course of individual stops, resulting in violations of the constitutional rights of innocent people. These problems are compounded by inadequate training for Border Patrol agents, a lack of oversight by CBP and the U.S. Department of Homeland Security, and the consistent failure of CBP to hold agents accountable for abuse. Thus, although the 100-mile border zone is not literally "Constitution free," the U.S. government frequently acts like it is.


    Click here to read the ACLU's Factsheet.
  3. 9th Circuit Rules No Right to Counsel if Subject to Expedited Removal

    by , 02-09-2017 at 09:47 AM (Matthew Kolken on Deportation And Removal)
    The Ninth Circuit Court of Appeals has ruled in United States v. Rufino Peralta-Sanchez that a noncitizen has no Constitutional right to a lawyer if they are properly subject to expedited removal. This may be ominous foreshadowing with respect to the pending litigation challenging President Trump's immigration executive orders.

    From the decision:

    The panel held that the defendant had no Fifth Amendment due process right to hire counsel in the expedited removal proceeding under 8 U.S.C. § 1225, and that he cannot demonstrate prejudice from the failure to notify himof the right to withdraw his application for admission under 8 U.S.C. § 1225(a)(4).

    II. STATUTORY AND CONSTITUTIONAL FRAMEWORK

    A. 1. Expedited Removal

    Expedited removal proceedings under 8 U.S.C. § 1225 are limited to aliens arriving in the United States, “whether or not at a designated port of arrival”; and aliens “who ha[ve] not been admitted or paroled into the United States” and cannot show that they have been continuously present in the United States for two years “immediately prior to the date of determination of inadmissibility.” 8 U.S.C. § 1225(a)(1),(b)(1)(A)(iii)(II); 8 C.F.R. § 235.3(b)(1)(ii).5 Section 1225 gives the Secretary of Homeland Security “sole and unreviewable discretion” to designate which, if any, aliens described in the latter category—those arriving in the United States who have not been admitted or paroled into the United States and have not been continuously present for the last two years—will be subject to expedited removal. 8 U.S.C.§ 1225(b)(1)(A)(iii)(I). By order, the Secretary of Homeland Security has determined to use the expedited removal procedure for those aliens (1) “who are physically present in the U.S. without having been admitted or paroled,” (2) who are found “within 100 air miles of the U.S. international land border,” and (3) who cannot establish that they have been physically present in the United States for the immediately preceding fourteen days. Designating Aliens for Expedited Removal, 69 Fed. Reg. 48877-01, 48880 (Aug. 11, 2004).

    If an immigration officer, after conducting an inspection,determines that such an alien does not possess valid entry documents, has presented fraudulent documents, or has made a false claim of U.S. citizenship, “the officer shall order the alien removed from the United States without further hearing or review unless the alien indicates either an intention to apply for asylum . . . or a fear of persecution.” 8 U.S.C.§ 1225(b)(1)(A)(i); see also id. § 1182(a)(6)(C), (a)(7).When making a finding of inadmissibility, the officer must create a record of the facts and statements made by the alien,read the statement containing these facts to the alien, explain the charges against the alien, and give the alien a chance to respond to the charges in a sworn statement. 8 C.F.R.§ 235.3(b)(2)(i). In short, the alien is provided with notice of the charges against him or her and given an opportunity to respond. In contrast to the statutes governing formal removal proceedings under § 1229a or the removal of aggravated felons under § 1228, the statutes and regulations governing expedited removal proceedings do not provide that the alien may be represented by counsel.

    Except in a limited category of cases (not applicable here), an alien who is determined to be inadmissible via§ 1225 proceedings is not entitled to administrative or judicial appeal. The Attorney General, however, has discretion to grant withdrawal of the alien’s application for admission.8 U.S.C. § 1225(a)(4); see also id. § 1225(b)(1)(C) (noting that an alien who claims to be an LPR, a refugee, or an asylee may be entitled to appeal). If the Attorney General permits an alien to withdraw his application for admission, the alien must “depart immediately from the United States.” Id.§ 1225(a)(4).

    Click here for the decision.

    Updated 02-09-2017 at 11:10 AM by MKolken

  4. Trump Ends the Rocket Docket for Refugee Children

    by , 02-01-2017 at 04:31 PM (Matthew Kolken on Deportation And Removal)
    By memorandum dated January 31, 2017, President Trump's administration has just put an end to Obama's rocket docket for unaccompanied minors.

    So if you are keeping score, President Trump in two weeks has already done more for unaccompanied refugee children than Obama did in two years.

    Click here for the memo.

    Updated 02-01-2017 at 05:21 PM by MKolken

  5. The Practical Realities of the Immigration Law

    by , 02-01-2017 at 12:23 PM (Matthew Kolken on Deportation And Removal)
    The question I keep getting asked over the past week is whether President Trump's executive actions temporarily suspending immigration from seven predominantly Muslim countries is legal. The short answer, generally, is yes. Practically speaking, the immigration law was designed to give as much discretionary authority to the executive branch as humanly possible, and to preclude the judicial branch from being able to review those decisions.

    Now for the long answer.

    The Department of State (DOS) has been afforded unfettered discretionary decision making power over the issuance of visas, their decisions in most instances are unreviewable in a court of law, and DOS doesn't have to give a reason for a denial to afford due process.

    Furthermore, even if a visa is issued, that does not confer a noncitizen a Constitutional right to entry. Visas may be revoked at any time, which includes at the time of the application for admission in the discretion of the inspecting officer, and very little if any explanation for the revocation is required as the applicant maintains the burden of proof.

    Moreover, at the time of the application for admission at the port-of-entry there is no right to counsel unless and until an immigrant is being charged with a violation of criminal law, and the inspecting officer in most instances is conferred the power to detain and deport you through a process called expedited removal, which is a summary decision by an immigration officer, not an immigration judge. That decision is also unreviewable in a court of law. Any immigrant whose inadmissibility is being questioned or who has become subject to an expedited removal order is detained. If the inspecting officers deem that the applicant for admission is inadmissible under other grounds contained in section 212(a) of the Act, they are required to take the immigrant into custody to institute deportation proceedings.

    Once deportation proceedings are instituted, the Department may add whatever other charges they want, and are not limited by what was alleged in the charging document called a Notice to Appear (NTA). The NTA provides due process to a noncitizen by giving them notice of the charges against them, and the scheduling of the hearing is their opportunity to be heard to assert defenses to removal. Frequently, the charges lodged against an immigrant in the NTA are legally deficient, and must be corrected by government's counsel in the context of the deportation proceeding. Meanwhile, the immigrant arriving at the border generally is detained, and when charged as an arriving alien, or deemed a threat to national security, no immigration judge has the power to set a bond so you may be stuck in deportation detention for the entirety of your immigration court case, which can take months, if not years.

    As for being able to restrict access to the country, INA § 212(f) provides that the President may through proclamation suspend the entry of noncitizens whenever "entry of any aliens or of any class of aliens into the United States would be detrimental to the interests of the United States." The President may also impose restrictions on entry deemed appropriate. Since the Department doesn't have to give the reasons for the basis for the denial of admission it will be very difficult for any Court to assess if the denial of a visa, or refusal of admission is based on a Constitutionally impermissible basis.

    Here's the bottom line. President Trump has the legal, and Constitutional authority to instruct his officers to deny admission to any noncitizen (including Green Card holders) so long as the reason for so doing is related to a threat to national security, although the burden of proof shifts to the Department for Green Card holders, which is likely why the Trump administration clarified the executive orders as applied to lawful permanent residents.

    And I'm not the only one who has come to this conclusion.

    Nolan Rappaport, who previously served as the immigration counsel for the Subcommittee on Immigration, Border Security, and Claims for four years, and who wrote decisions for the Board of Immigration Appeals for 20 years shares my opinion that President Trump's executive order does not exceed his statutory authority.

    Immigration lawyer Scott Hick
    s also surmised that "Most of what the President is doing is in fact within his authority to execute the laws. This means that for real change to occur it must take place in Congress." He further explained that "The President is essentially taking the most aggressive interpretations and approach to enforcing laws that are already in the books." We are not alone in our thinking, although many like minded immigration lawyers are staying silent to avoid the derision of the established partisan groupthink of the private immigration law bar.

    That said, the American Civil Liberties Union (ACLU) disagrees stating that Trump's orders violate the establishment clause. I believe such argument is spurious at best as the three most populous Muslim countries in the world, Indonesia, home to 12.7% of the world's Muslims, Pakistan (11.0%), and India (10.9%), are not banned from admission.

    Lawsuits have already been filed challenging the executive orders, and maybe I'm wrong, but something tells me that with the balance of the Supreme Court soon to be returned to the conservative wing, the likely result will be that Trump's orders will be deemed Constitutional.

    We shall have to wait and see.

    Updated 02-08-2017 at 02:17 PM by MKolken

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