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Matthew Kolken on Deportation And Removal

9th Circuit Rules No Right to Counsel if Subject to Expedited Removal

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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).


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.

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


  1. ImmigrationLawBlogs's Avatar
    Some history on expedited removal proceedings.

    Such proceedings were established in 1996 by IIRIRA because aliens were showing up at a port of entry, asking for asylum, and being paroled into the country pending the scheduling of an asylum hearing before an immigration judge. The problem. They absconded. IIRRIRA greatly minimized the problem by limiting asylum hearings to aliens who have apparently genuine persecution claims.

    Nolan Rappaport
  2. leveymg's Avatar
    Now for the potential hellish future by mere agency reinterpretation of procedure, without even the need to publish new regulations. Since by statute the criteria applied to determine whether an EWI who entered within the previous two years is subject to expedited removal is solely up to the discretion of DHS, the present guidelines could be changed by a nod of Mr. Trump's head. Or, whomever is determining immigration policy that day. If the whim is to "be tough," anyone who fits the statutory profile no matter where they may be located in the interior could be immediately detained and removed with no access to counsel. All without any review. I wonder if this 9th Circuit panel understood the implications of this ruling.
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