USA v. Rufino Peralta-Sanchez

Filing

FILED OPINION (HARRY PREGERSON, JAY S. BYBEE and N. RANDY SMITH) AFFIRMED. Judge: HP Dissenting, Judge: JSB Authoring, FILED AND ENTERED JUDGMENT. [10304776] [14-50393, 14-50394]

Download PDF

Case: 14-50393, 02/07/2017, ID: 10304776, DktEntry: 43-2, Page 1 of 203 AMERICAN EXILE Rapid Deportations That Bypass the Courtroom ez anch , 2017 a-S eralt bruary 2 .P SA v d on Fe in U hive ited C arc 393 -50 o. 14 N December 2014 Case: 14-50393, 02/07/2017, ID: 10304776, DktEntry: 43-2, Page 2 of 203 AMERICAN EXILE Rapid Deportations That Bypass the Courtroom © 2014 ACLU Foundation American Civil Liberties Union 125 Broad Street New York, NY 10004 www.aclu.org ez anch , 2017 a-S eralt bruary 2 .P SA v d on Fe in U hive ited C arc 393 -50 o. 14 N Cover, interior, and back photographs: Sam Frost Cover and interior images: Tijuana, Mexico, March 2014. Men standing on the beach look across the border to California as U.S. Border Patrol ofﬁcers arrest two migrants. Back cover image: The U.S. fence separating California and Mexico, expanded and fortiﬁed in 2011 and jutting 30 feet into the Paciﬁc Ocean. Case: 14-50393, 02/07/2017, ID: 10304776, DktEntry: 43-2, Page 3 of 203 CONTENTS Executive Summary Key Recommendations Methodology I. Summary Deportation Procedures: An Introduction A. Expedited Removal B. Reinstatement of Removal C. Administrative Voluntary Departure/Voluntary Return D. Administrative Removal Under INA § 283b E. Stipulated Orders of Removal II. Who Is Getting Deported Without a Hearing? A. Asylum Seekers Returned to Danger 1. Expedited Removal and the Impediments for Asylum Seekers 2. Language and Information Barriers 3. Failure to Refer Asylum Seekers to an Asylum Ofﬁcer 4. Asylum Seekers with Prior Removal Orders B. People Lawfully in the United States Who Are Deported Without a Hearing 1. U.S. Citizens Deported Through Summary Procedures a. U.S. Citizens with Mental Disabilities b. U.S. Residents with Valid Status ez anch , 2017 2. Expedited Removal of Tourists and Business Visitors a-S eralt bruary 2 C. Longtime Residents Removed Without a Hearing v. P n Fe 1. Deportations at the Border USA in ed o 2. Apprehended and Deported in the Interior of the United States ited rchiv C a a. Voluntary Return 0393 5 b. Administrative-Removal Under 238b 14 No.Alone D. Children Arriving 1. Legal Background 2. Accessing the Protections of the System 3. Mexican Children and the TVPRA 4. The TVPRA in Practice III. After Deportation: The Aftermath of an Unfair Removal A. Erroneous Deportations and the Lack of Oversight B. Reinstatement of Removal C. Prosecution for Returning D. American Families Living in the Shadows IV. International Law and Restrictions on Summary Removals A. Access to Justice and the Right to a Fair Hearing B. The Right to Apply for Asylum and Right to Protection from Persecution C. Special Protections for Children D. Limitations on Detention E. The Right to Family Unity Recommendations Glossary of Terms Acknowledgements Endnotes 2 8 9 10 15 19 23 26 29 31 32 33 34 37 40 44 44 48 50 54 59 60 63 63 66 69 69 71 73 73 80 80 83 87 94 97 97 99 100 102 102 104 118 122 123 ........................................................................................................................................................................................ ................................................................................................................................................................................. ...................................................................................................................................................................................................... .............................................................................................................. ................................................................................................................................................................ ................................................................................................................................................ ........................................................................................ ................................................................................................................ ........................................................................................................................................... ........................................................................................................................... ........................................................................................................................... ................................................................ ...................................................................................................................... ................................................................................. ..................................................................................................... ............................................. ............................................................................... .......................................................................................................... .................................................................................................................... .................................................................................. .................................................................................................. ........................................................................................................................................ .............................................................. .................................................................................................................................................... ............................................................................................................ ....................................................................................................................................................... ........................................................................................................................................................ .......................................................................................................... ......................................................................................................................... ............................................................................................................................................... ................................................................................................... ............................................................................................... ................................................................................................................................................ .................................................................................................................................................. .................................................................................................................. ............................................................................................ .................................................................................................. .................................................. .................................................................................................................................. ................................................................................................................................................. ................................................................................................................................................. ..................................................................................................................................................................................... ...................................................................................................................................................................................... ................................................................................................................................................................................... ......................................................................................................................................................................................................... AMERICAN EXILE: Rapid Deportations That Bypass the Courtroom Case: 14-50393, 02/07/2017, ID: 10304776, DktEntry: 43-2, Page 4 of 203 EXECUTIVE SUMMARY H ilda, a 35-year-old woman from Honduras, arrived in Texas in 2013, ﬂeeing gang threats and domestic violence that had just resulted in the miscarriage of her twin babies. She was still bleeding when she was arrested by a Border Patrol ofﬁcer with her two young surviving children. “I was caught crossing the river,” recalls Hilda: It was 8 p.m. at night. They took me and my kids to a cell … They started to ask us to sign a lot of papers. The problem was I didn’t understand anything he was asking me. Since he saw that I didn’t understand, [the ofﬁcer] would just write and write and just tell me, “Sign.” … He would just put [the form] in front of me and say, “Sign, next one, sign.” . . . I was afraid [to ask for help]. Everyone there was afraid. [The ofﬁcers] don’t let you even talk to them. . . . The fear they instill in you doesn’t let you ask for help.1 In FY 2013, 83 percent of deportation orders came from immigration ofﬁcers, not judges. did not have a hearing, never saw an immigration judge, and were deported through cursory administrative processes where the same presiding immigration ofﬁcer acted as the prosecutor, judge, and jailor. Some of those expelled without a hearing had lived in the United States for many years, have U.S. citizen children, and were never afforded the opportunity to say goodbye to relatives or call an attorney before being wrenched from their lives rooted in American communities. Some of those deported were ﬂeeing violence, persecution, or torture and were turned back to danger. Others had lawful status in the United States, including U.S. citizenship, but werehez c erroneously deported. 7 San 201 y 2, alta- has incalculable consequences for the r Deportation ua Per Hilda and her two-year-old and 12-year-old sons were F removed A v. individualebr and the family left behind in the issued deportation orders by an immigration enforcement ed on in US ed she did not hiv United States, so the decision to deport should be arrived agent. Hilda never saw the deportation order; Cit arc 393 at with care by a judge trained in immigration law and know what language it was in. 50 . 14considering the facts and circumstances of each case. No 4 In 2013, the United States conducted 438,421 deportations.2 In more than 363, 2793 of those deportations—approximately 83 percent—the individuals FIGURE 1 FY 2013 Removal Figures by Deportation Process Expedited Removal 44% 17% All other 39% (judicial orders plus stipulated orders and 238b) Reinstatement of Removal Department of Homeland Security, Ofﬁce of Immigration Services, Annual Report, Immigration Enforcement Actions: 2013, September 2014, available at http://www.dhs.gov/ sites/default/ﬁles/publications/ois_enforcement_ar_2013.pdf. Note: Total may not equal 100% because of rounding. 2 AMERICAN CIVIL LIBERTIES UNION Instead, in the current system, U.S. law enforcement ofﬁcers make complicated decisions about a person’s rights, with catastrophic results when they are wrong. In many cases, individuals have been coerced to sign forms they do not understand and were threatened or lied to about their rights. In this coercive environment, it is inevitable that individuals with the right to be in the United States may abandon those rights. They were told to sign a form, and then they were gone. Summary removal procedures5 are a short-circuited path to deportation. At the U.S. border, a Mexican national can be deported almost instantly. The speed of a summary removal may be attractive, but it has also resulted in devastating and predictable errors, leading to the banishment and, in some cases, death of people who had a right to be in the United States. And while these orders, including mistaken ones and their severe penalties, are quickly delivered, they cannot easily be undone. Case: 14-50393, 02/07/2017, ID: 10304776, DktEntry: 43-2, Page 5 of 203 Joe Raedle/Getty United States, despite the notorious complexity of immigration law. Immigration courts frequently reject the charges brought by the Department of Homeland Security (DHS) or ﬁnd the non-citizen eligible for relief from deportation.7 However, in summary deportation procedures, there is no neutral judge to evaluate the legitimacy of the charges or a person’s eligibility for relief or lawful status. Undocumented Guatemalan immigrants are supervised by guards while on a deportation ﬂight from Mesa, Arizona, to Guatemala City, Guatemala, on June 24, 2011. WHAT ARE SUMMARY REMOVAL PROCEDURES? There are several types of summary removal or return processes that bypass the courtroom, although two processes together give rise to the vast majority of these removal orders. The ﬁrst, “expedited removal,” accounts for approximately 44 percent of all deportations. The process permits DHS ofﬁcers to order non-citizens deported, with a ban on readmission ranging from ﬁve years to life, when the ofﬁcer determines that the individual does not have a ez anch , 2017 valid entry document. -S Before 1996, with minor exceptions, every person who received a formal deportation order (and all the consequences that accompany it) was given a full hearing before an independent judge. Individuals whom the government alta ruary 2 sought to deport could make claims about why they should Per v. The Feb be allowed to remain in the United States, retain aSA U lawyer, ed on second, “reinstatement of removal,” issued to in v individuals previously deported who reenter without present evidence, examine witnesses,ited the C and disputearchi 93 denied permission, accounts for the largest single number of charges against them. And, if the immigration judge 503 . 14- individual still had a deportations (39 percent). Reinstatement orders are their claims—rightly or wrongly—the No chance to have that decision reviewed by an administrative used throughout the country and can occur especially appeals body and then by one or more federal courts. quickly at the border, offering virtually no chance to raise or overturn errors in a prior deportation order. Other The Illegal Immigration Reform and Immigrant summary procedures such as “stipulated orders removal” Responsibility Act of 1996 (IIRIRA)6 dramatically changed and “administrative removal” also apply nationwide and that system. In creating new and dramatically expanding preallow DHS to divert people away from immigration courts, existing summary removal procedures, IIRIRA established an where constitutional and statutory rights established over a administrative system that replaced judges with immigration century govern the proceedings. ofﬁcers—the same ofﬁcers who arrest, detain, charge, and deport. IIRIRA allowed these ofﬁcers to issue deportation These summary procedures invite, and guarantee, error. orders (called “removal orders”) without the kind of hearing And yet erroneous—even illegal—summary removal that had always been afforded before. The removal orders orders are difﬁcult to challenge because of the speed of the issued in these summary removal procedures come with the process, the limited “evidence” required, and the absence same signiﬁcant penalties as deportation orders issued by a of a complete record of the proceeding. These procedures judge after a full hearing, but the processes that lead to these might need more review, as they lack many courtroom orders could not be more different. safeguards; instead, most summary procedures are subject to strict jurisdictional limits that severely limit the In a summary removal process, immigration ofﬁcers possibility of any judicial review. and agents determine who can enter or remain in the AMERICAN EXILE: Rapid Deportations That Bypass the Courtroom 3 Case: 14-50393, 02/07/2017, ID: 10304776, DktEntry: 43-2, Page 6 of 203 Asylum seekers, longtime residents, and others with rights to be in the United States can be deported without a hearing in a matter of minutes. WHO IS GETTING DEPORTED WITHOUT A HEARING? In practice, these statutory safeguards have proven illusory for many bona ﬁde asylum seekers, as the U.S. government recognized in a study commissioned by Congress and published in 2005.10 Almost a decade later, border ofﬁcials still fail to adequately screen all asylum seekers for fear of return before ordering them deported—and the consequences are severe. Of the 89 individuals interviewed by the ACLU who received a summary removal order (expedited removal or reinstatement or, in the case of unaccompanied children, voluntary return) within the broad U.S. border zone,11 55 percent said they were never asked about their fear of persecution or that they were not asked anything in a language they understood. Only 28 percent said they were asked about their fear of returning to their country of origin by a border ofﬁcer or agent; 40 percent of those asked about fear said they told the agent they were afraid of returning to their country but were nevertheless not referred to an asylum ofﬁcer before being summarily deported. Summary expulsion processes like expedited removal were introduced in 1996 to combat what was perceived to be an abuse of the asylum system by unauthorized migrants coming to the United States for the ﬁrst time.8 But today, The failure to follow these limited but essential safeguards DHS ofﬁcials use these procedures not only to rapidly has had catastrophic consequences. Braulia A.12 and ez deport genuine asylum seekers arriving at our borders, but Hermalinda L. were gang-raped17 shot after being anch , 20 and a-S also to remove longtime residents with U.S. citizen family; deported to Guatemala; Braulia’s son, who joined her in eralt bruary 2 children; individuals with valid work and tourist visas; A v. P Fe Guatemala after her deportation, was murdered by the US d on that raped and shot her. Nydia R., a transgender in and others with signiﬁcant ties or legal claims to be in the ivesame gang c Cited 9 throughh woman who actually had asylum status when she was United States. Some individuals quickly deported3 ar 3 these processes are eligible for relief 14-50 from deportation (twice) deported without a hearing, was attacked by men No. in the United States and would win the right to remain who raped her and tried to cut out her breast implants; she if brought before an immigration judge. But hasty, was then kidnapped and sex-trafﬁcked in Mexico. Laura non-judicial procedures deprive these individuals of that S. told border ofﬁcials that she was afraid of her abusive opportunity and rely on DHS’s equivalent of police ofﬁcers ex-partner; her pleas ignored, she was deported and was to identify and adjudicate a person’s rights, sometimes in a murdered by him within days of her removal to Mexico. matter of minutes. Asylum Seekers People Lawfully in the United States, Including U.S. Citizens Individuals ﬂeeing persecution in their home countries have been deported through expedited removal when they arrive at the U.S. border seeking protection. Congress recognized this potential danger early on, and so it required in IIRIRA that border ofﬁcials processing an individual for expedited removal refer individuals who claim fear to an asylum ofﬁcer with specialized training so that those individuals are not rapidly deported without the chance to seek protection.9 In summary removal proceedings, which can be a single quick encounter with an ofﬁcer, immigration ofﬁcers have erroneously identiﬁed individuals as having no legal status in the United States and have ordered them removed. Determining who is and is not “removable” is far from straight-forward and can involve complex legal determinations.13 But even individuals whose lawful status can be easily veriﬁed have been quickly removed without the chance to procure or consult with an attorney. 4 AMERICAN CIVIL LIBERTIES UNION Case: 14-50393, 02/07/2017, ID: 10304776, DktEntry: 43-2, Page 7 of 203 Maria, a U.S. citizen, was issued an expedited removal order by a Border Patrol ofﬁcer who did not believe a U.S. citizen would speak only Spanish. She spent years in Mexico trying to return to the United States and did so successfully only after ﬁnding an attorney and many months of litigation. Francisco, who had lived most of his life in the United States and had a valid U visa,14 was erroneously arrested and deported by immigration ofﬁcers. He was able to return to the United States and his family only after facing threats and harassment in Mexico, asking for help from U.S. border ofﬁcers, and being arrested, detained, and ﬂown to a detention facility far from his family. Longtime Residents At the border and well into the interior, expedited removal and many other summary deportation processes are used against people whose lives and family are rooted in the United States. Some individuals interviewed by the ACLU had lived in the United States since childhood and left only brieﬂy (to see a dying relative, for example); upon their return, they were deported, their time in and ties to the United States effectively erased. Inocencia C., for example, had lived in the United States for almost 15 years and was the mother of three young U.S. citizen children when she was deported through expedited removal after The risk of an unfair removal order increases with the returning home to California from Mexico. Braulia A. had expansion of “border”15 enforcement. For many people, gone to Tijuana for the day and was issued an expedited crossing the U.S. border is their daily commute to work, to removal order when she tried to return to the United States, school, or to see friends and family. Expedited removal, in separating her from her ﬁve children. Veronica V., a mother practice, gives immigration ofﬁcers virtually unreviewable of three U.S. citizen children, had been living in the United power to determine that someone with a valid visitor or States for almost 20 years when police stopped the car her business visa is not complying with the terms of that visa. husband was driving. Taken into immigration detention, One company, Yolo Medical, cancelled its plans to expand Veronica was prevented from speaking with her attorney and its business in the United States and closed a distribution z coerced into accepting voluntary return. Although she would nche 20 for astrong candidate 17discretionary relief, she is center in Washington State, laying off U.S. citizen have a-Sa tbeen ary 2, employees, due to the expedited removal of one employee Peral in Mexico, separated from her young children. now . bru and the continuing difﬁculties employees facedUSA v with border n Fe do in ofﬁcials at ports of entry. ited chive C ar 393 -50 o. 14 N Children Arriving Alone Chip Somodevilla/Getty Born in Russia, a nine-year-old cheers while sitting in the lap of his adoptive father during the children’s citizenship ceremony. For unaccompanied children arriving in the United States, the experience of being arrested, detained, and processed by a U.S. immigration agent can be particularly harrowing. Through the Trafﬁcking Victims Protection Reauthorization Act (TVPRA), Congress attempted to ensure that children were given the opportunity to be heard by a judge. Under the TVPRA, Mexican unaccompanied children are to be screened for asylum or trafﬁcking claims and cannot be turned back without seeing a judge unless they have the capacity to “choose” voluntary return. As applied by U.S. Customs and Border Protection (CBP), however, this has not offered AMERICAN EXILE: Rapid Deportations That Bypass the Courtroom 5 Case: 14-50393, 02/07/2017, ID: 10304776, DktEntry: 43-2, Page 8 of 203 Reuters In 2014, thousands of young children ﬂed violence in Central America and arrived alone in the United States. protection to Mexican children. An estimated 95 percent sanctuary in the United z States but was repeatedly turned 7 nche away attthe Sa and accused by CBP ofﬁcers of lying of Mexican unaccompanied children are turned back - border y 2, 201 a r ral about to Mexico without seeing a judge.16 Only one of the 11 ushe v. Pe nthe danger a faced. Febr A Mexican children traveling alone who were interviewed by o in US The edreturningrchived Obama administration has recognized the rising the ACLU said he was asked about his fear of to it C 3a number of children ﬂeeing violence in Central America Mexico. Most did not recall being asked anything and said 5039 1 “some as a humanitarian situation,18 one which has been well .sign4- form.” All they were yelled at and ordered to No documented by the United Nations High Commissioner were returned without a hearing. And yet, children seeking for Refugees (UNHCR) and others.19 Nonetheless, the protection will continue to come alone to escape violence U.S. government’s response to date has been to expand or reunite with family. Arturo, a 15-year-old abandoned detention and accelerate the deportation process, as though by his father and hoping to reunite with his mother, was the push factors of extreme violence and poverty that have left in limbo in a Mexican shelter after his deportation: driven these children to seek protection in the United “There is no reason for me to stay [in Mexico] if my dad States can be addressed through a more punitive response. doesn’t want me here.”17 M.E., a young girl whose brother Statutory changes suggested by Obama administration was “disappeared” by a gang in Mexico and who was herself ofﬁcials and some lawmakers would place Central threatened with kidnapping, made multiple efforts to seek American children in the same reﬂexive removal system that is applied to unaccompanied Mexican children; as a result, more children are likely to be removed to countries where they are in danger and left vulnerable to trafﬁcking and other exploitation, in violation of U.S. obligations under international and domestic law. An estimated 95 percent of Mexican unaccompanied children are turned back to Mexico without seeing a judge. 6 AMERICAN CIVIL LIBERTIES UNION Case: 14-50393, 02/07/2017, ID: 10304776, DktEntry: 43-2, Page 9 of 203 AFTER DEPORTATION: THE CONSEQUENCES OF UNFAIR SUMMARY REMOVAL PROCESSES another removal order or time in prison to be reunited with their families. For these individuals, the penalties of DHS’s strategy are felt by their entire families for years to come. While summary removal processes are, by design, much quicker and more truncated than a full hearing,20 the rights adjudicated and penalties imposed through these procedures are no less signiﬁcant. In a matter of minutes, a person whose entire life is in the United States can be deported with a removal order that makes returning lawfully (if even a possibility) extremely difﬁcult or that may permanently exclude him or her from future immigration beneﬁts. WHAT SHOULD BE DONE? Since 1997, summary removal procedures have been applied to millions of people, not only along the border, but also throughout the United States. The U.S. government has attempted to justify the expansion (and the corresponding retrenchment of rights) by stating that these processes are for people with no right to enter or remain in the United States.23 But as this ACLU report based on over 135 cases demonstrates, that simply is not true. Given the incredible danger in many places to which non-citizens are deported, those summarily deported are The use of summary deportation procedures has become often unwilling to uproot (and endanger) their families the default. Yet their use is neither wise nor mandated living in the United States. Therefore, some deported under current law. DHS ofﬁcers, who have great power to parents return without applying for authorization. If they expel non-citizens with limited review, also have discretion are not apprehended, they and their families—which often to refer an individual for a hearing in front of a judge. ez Allowing someone to present his or her case does not include U.S. citizen children—face an uncertain future with anch , 2017 a-S ability to enforce the law; rather, it 2 impede no way, under the current immigration laws, to ﬁx their eralt to DHS’sathe law more fairly and accurately,allows P DHS ebru ry ensuring immigration status and give security to their families. v. F enforce USA ed on individuals with rights and claims to be in the United that in ite individuals can v States can have those rights respected. Cthesed 3 archi If apprehended, on the other hand, 039 face criminal prosecution and lengthy5 14- incarceration, and No. can also have their prior order “reinstated.” For individuals who never got a fair hearing and a chance to defend their rights the ﬁrst time, this punitive system recycles old errors and offers virtually no way for individuals unjustly deported to have their orders reviewed and expunged. Such a strict and harsh aftermath is not accidental, but rather is part of a larger DHS strategy to reduce returns without authorization by increasing the difﬁculty and consequences of returning.21 The success of this strategy in deterring unlawful migration is questionable.22 But what is apparent is that these stacked penalties disproportionately hurt people with ties to and potential legal rights to stay in the United States. Asylum seekers who face real threats in their countries of origin will continue to look for protection in the United States; many told the ACLU that they would rather be in jail in the United States than dead in their homelands. Individuals with family obligations, particularly parents of young U.S. citizen children, will brave the threat of There are people living productive lives in the United States who are alive today because a Border Patrol agent followed the law, took the essential step to ensure someone understood their rights, and referred them to help. But there are also many cases where immigration ofﬁcers pressure an individual to sign a deportation order that he or she does not understand, one that simultaneously obliterates critical rights and opportunities. Wrongful deportations are hard to set right. And for some, a later court challenge would be too late: people have been deported to their death after receiving a summary deportation order. The U.S. government has the responsibility and the ability to prevent unlawful deportations. To that end, the United States must provide individuals with a fair and independent hearing, the chance to defend against deportation and seek review of an unjust order. These are basic safeguards in line with core American values of due process and justice and in keeping with our obligations to respect and promote human rights. AMERICAN EXILE: Rapid Deportations That Bypass the Courtroom 7 Case: 14-50393, 02/07/2017, ID: 10304776, DktEntry: 43-2, Page 10 of 203 KEY RECOMMENDATIONS T o ensure that individuals facing deportation have the opportunity to be heard and defend their rights, the U.S. government should do the following: 1. Provide a full removal hearing and a chance to be heard before an immigration judge to individuals with claims to be in the United States—for example, asylum seekers or individuals with strong equities such as close U.S. citizen family, strong community ties, or long residence in the United States. 2. Continuously train and retrain immigration enforcement ofﬁcers not to use coercion, threats, or misinformation to convince individuals to give up the right to see a judge and to accept deportation. 3. Recognize and expand the rights of individuals deported without a hearing to seek review of their deportation order. 4. Reduce the use of criminal prosecution for illegal entry or reentry andez ensure that individuals with claims to be in the United States, such as asylum seekers, have the7 anch , 201 a-S 2 opportunity to present their claims before being referred for prosecution. eralt uary P 5. . br SA v d on Fe in U e Make sure that all people ed deportationv it facing archi through a summary removal procedure C 3 3 with are given the chance to consult 9 a lawyer before they are ordered removed, and 4-50 individuals such as children and people with mental 1 provide lawyers o.vulnerable N to disabilities who are facing deportation or repatriation. 6. Ensure that all individuals detained by immigration enforcement agencies are treated with respect and dignity, that detention conditions are humane, and that detention is used only as a last resort and for the shortest time possible. A complete list of recommendations is set forth at the end of this report. 8 AMERICAN CIVIL LIBERTIES UNION Case: 14-50393, 02/07/2017, ID: 10304776, DktEntry: 43-2, Page 11 of 203 METHODOLOGY T those individuals were subsequently removed from the United States by a summary removal procedure. Many individuals interviewed for this report were still in immigration proceedings at the time of their interview; others were contemplating an attempt to rejoin their families in the United States after being deported. To protect the anonymity of these individuals, only ﬁrst names are used in the report. For unaccompanied children, all names have been changed to pseudonyms. For all individuals with attorneys, we were able to obtain and review the immigration and, where relevant, federal prosecution records. In some cases where an unrepresented individual still had their removal documents, we were able to review those documents as well. his report is a qualitative study on deportations without hearings that aims to illustrate who is deported without seeing a judge and to identify the shortcomings of the summary removal proceedings that lead to deportations in violation of U.S. obligations under international and domestic law. The report is based on 136 cases of individuals removed from the United States, without seeing an immigration judge, through a summary removal proceeding such as expedited removal, voluntary return, administrative removal, or a stipulated order of removal. Of the stories included in this report, 94 are from individuals interviewed in person or by phone; 6 cases were The ACLU also interviewed 69 attorneys and advocates— documented based on interviews with family members including immigration attorneys, defense attorneys where the individual had been deported and could not be working on illegal entry or illegal reentry cases, Mexican reached (and, in at least one case, murdered). The ACLU migrant shelter staff, Mexican lawyers and advocates, and documented the remaining 36 cases by reviewing case community organizers and activists in the United States— ﬁles, wherever available, and publicly available pleadings. about summary hez practices and processes and their removal Attorneys were asked to obtain consent from their clients 17 anc effects on the individuals removed, their families, and the ta-S ary 2, 20 before providing case documents to the ACLU; in a few eral bru also met with Mexican immigration and community. We cases where the individuals had either been removedA v. P or S consular staff who interview Mexican nationals before and n Fe could no longer be located, attorneys provided U redacted ved o in after their removal to the United States. h C ted 93 ar the i copies of the individuals’ cases to thei ACLU without c 503 individuals’ names or other identifying information. In addition to information obtained from the individuals . 14No and their attorneys, the ACLU submitted six requests In the United States, the ACLU conducted interviews for information under the Freedom of Information Act. in person and by phone with individuals in Arizona, These requests were submitted to the Department of California, Florida, New Mexico, and Texas. In Mexico, Homeland Security, including Immigration and Customs the ACLU conducted in-person interviews with recent Enforcement and Customs and Border Protection, and to deportees and advocates in Agua Prieta, Ciudad Juárez, the Department of Justice, including the Executive Ofﬁce Matamoros, Nogales, Reynosa, and Tijuana. In addition to of Immigration Review and the Ofﬁce of Immigration these in-person interviews, we interviewed some migrants Litigation. Some of these requests have not been yet at shelters in southern Mexico by phone. Finally, the answered, and other requests are currently being litigated. ACLU conducted several additional interviews by phone Where responses were provided, the ACLU analyzed the with individuals who had been deported to, and were information for this report. Requests and responses are still in, England, Canada, and India. All interviews were provided online at www.aclu.org. conducted by Sarah Mehta, Human Rights Researcher for the ACLU, and, where necessary, with an interpreter. All Some of these ﬁndings were informally shared with federal individuals were informed that their interviews were to be government agency staff while the report was being drafted. used in a public report on deportations without hearings. In this report, we have included only the interviews with individuals who were deported without seeing a judge but have excluded individuals with in absentia orders unless AMERICAN EXILE: Rapid Deportations That Bypass the Courtroom 9 Case: 14-50393, 02/07/2017, ID: 10304776, DktEntry: 43-2, Page 12 of 203 I. SUMMARY DEPORTATION PROCEDURES: AN INTRODUCTION Where Did This Come From? I n a country built on immigration, U.S. law has historically recognized the importance of fair hearings for those whom the U.S. government wants to remove. In 1903, the Supreme Court of the United States recognized that the Due Process Clause of the Fifth Amendment to the U.S. Constitution applies in cases where the government seeks to deport those who have already entered the United States.24 Similarly, the Supreme Court has repeatedly recognized that deportation often carries grave consequences, and therefore implicates v. the rights to life, liberty, and property, “or of all that makes life worth living.”25 This recognition of deportation as a “drastic deprivation”26 with severe, reverberating consequences both for the individual and his or her family in the United States is not reﬂected in the procedures used to deport. In immigration court, despite the well-known complexity of immigration law,27 there is no established right to a lawyer provided by the government, and the majority of immigration detainees are consequently alone and unrepresented in extremely complex immigration proceedings where the government is represented by an attorney.28 Even children as young as ﬁve years old go forward in confusing and intricate legal proceedings without a lawyer.29 But increasingly, those who actually get a hearing before an immigration judge are the exception. In 1996, Congress passed a series of sweeping and restrictive immigration laws, including the Illegal Immigration Reform and Immigrant Responsibility Act ez (IIRIRA), which established summary removal procedures anch enforcement ofﬁcers could 017 by which immigration 2, 2 ta-S ary al Peronly arrestrand detain non-citizens but could also not eb u F A in US hived on Cited 93 arc Undocumented Guatemalan immigrants are searched before boarding a deportation ﬂight to Guatemala City, Guatemala. 503 . 14No John Moore/Getty 10 AMERICAN CIVIL LIBERTIES UNION Case: 14-50393, 02/07/2017, ID: 10304776, DktEntry: 43-2, Page 13 of 203 adjudicate their claims, with limited review by courts.30 As a result, the majority of people deported from the United States—approximately 83 percent in 2013—are removed without seeing a judge, with limited procedural safeguards, with few opportunities to make claims to remain in the United States, and yet with signiﬁcant consequences. The procedures created and expanded, and now used to remove people without a hearing, include expedited removal, reinstatement of removal, administrative removal, stipulated orders of removal, and administrative voluntary departure (known as voluntary return). The 1996 laws that created these removal mechanisms assumed they would be applied to “arriving” immigrants who had no rights to be in the United States; today, most individuals apprehended at the border are considered priorities for removal as “recent border crossers” although many such individuals are apprehended in the interior of the United States. In fact, the individuals processed through these rapid, truncated procedures include individuals who have lived most of their lives in the United States, asylum seekers, people with valid business and tourist visas, and sometimes, even U.S. citizens.31 criminal charges against them.”33 MPI estimates that 84 percent of the growth in deportations stems from the use of a summary removal procedure where the individual is deported without seeing a judge.34 Previously, some non-citizens arriving at the border without authorization to be admitted were referred to an immigration judge; others were allowed to “withdraw” their application. Individuals who are “informally” returned and allowed to withdraw their applications do not have a removal order and may be able to apply for visas and apply for relief in the United States in the future. While individuals may still withdraw their applications at the border, CBP increasingly issues formal deportation orders to these individuals. As discussed at length in this report, a formal removal order—even one issued by a law enforcement ofﬁcer and not a judge—has signiﬁcant immediate and long-term FIGURE 2 The Growth of Expedited Orders of Removal and Reinstated z Orders of Removale 2008–FY7 anch FY 01 2013 a-S 2, 2 The total rua of eralt number ryremovals each year includes expedited . P removal, b SA v d on Fereinstatement, administrative removal, stipulated in U hive orders, and judicial orders (issued by an immigration judge). ited Who Is Deported ThroughC 503Processes? These 93 arc Expedited Removal 14No. Today, approximately 83 percent of people deported from Reinstatement the United States are removed without a hearing or a chance to present their claims to an immigration judge. Around 44 percent of all those deported in ﬁscal year (FY) 2013 were deported through expedited removal, a procedure where there is virtually no opportunity (and very restricted rights) to consult with a lawyer and submit defenses, and very limited right to judicial review. A recent report from the Migration Policy Institute (MPI) observed that at the border, the number of apprehensions (i.e., people coming into the United States) is declining: in FY 2000, the number of apprehensions was 1.7 million people, whereas in FY 2013, it was 421,000.32 Nevertheless, deportation numbers are rising because Customs and Border Protection (CBP), which is the primary immigration enforcement agency at U.S. international borders, now “places a larger share of those it apprehends in formal removal proceedings and/or brings Total Removals 500,000 375,000 250,000 125,000 0 2008 2009 2010 2011 2012 2013 Source: Department of Homeland Security, Ofﬁce of Immigration Statistics, Annual Report, Immigration Enforcement Actions: 2010, available at http://www.dhs.gov/xlibrary/assets/ statistics/publications/enforcement-ar-2010.pdf; Id., Immigration Enforcement Actions: 2011, available at http://www.dhs.gov/sites/default/ﬁles/publications/immigration-statistics/ enforcement_ar_2011.pdf; Id., Immigration Enforcement Actions: 2012, available at http://www. dhs.gov/sites/default/ﬁles/publications/ois_enforcement_ar_2012_1.pdf; Id., Immigration Enforcement Actions: 2013, available at Immigration Enforcement Actions: 2013. AMERICAN EXILE: Rapid Deportations That Bypass the Courtroom 11 Case: 14-50393, 02/07/2017, ID: 10304776, DktEntry: 43-2, Page 14 of 203 consequences and makes returning to the United States in the future very difﬁcult. At the same time, simply allowing individuals to withdraw their claims is not always the most rights-protective path, particularly for asylum seekers. Refusing to allow a person into the United States to apply for asylum and returning him or her to a country where he or she faces danger violates domestic and international human rights law.35 But the current practice of deporting asylum seekers with a formal deportation order and without the opportunity to present their claims not only denies an individual his or her right to seek asylum, but also comes with increasingly harsh and punitive consequences, as discussed in this report. The immigration courts are notoriously under-resourced. Nevertheless, they offer critical procedural and substantive protections utterly absent from summary removal processes. maintain a complete record of all testimony and evidence produced at the proceeding.41 Perhaps most critically, given the absence of appointed counsel for immigrants facing deportation, an immigration judge is obligated to tell a person facing removal of his or her eligibility for Removal proceedings under Section 240 of the relief from deportation and his or her ability to apply for Immigration and Nationality Act (INA) are conducted it. If an individual is ordered removed by an immigration 36 in court and presided over by an immigration judge. judge, that individual ez appeal that decision to the A removal proceeding starts with the service of a Notice ch can 7 Board of Immigration Appeals (another entity within -San y 2, 201 to Appear (NTA), which informs the non-citizen of the ta a e al br of r ther immigration charges against him or her (i.e., the grounds v. P Departmentu Justice); if unsuccessful on appeal, the Fe further petition for review of the decision to A individual can on US upon which he or she is believed to be removable from ed in archivedfederal court of appeals. a Cit the United States). The NTA also triggers Miranda-like 393 protections: once the NTA has been ﬁled,50 person Undoubtedly, the current immigration court system is . 14- the charged must be informed of No right to be represented their far from perfect. The immigration courts are notoriously at their own expense by a lawyer and that any statements under-resourced,42 and, in the absence of appointed made during interrogation can be used against them in the (government-funded) lawyers, many people (including removal proceedings.37 children and people with mental disabilities) represent themselves in complicated legal proceedings.43 Immigration In charging a person (through the NTA), immigration court hearings are often very quick, and the results vary ofﬁcers are also supposed to use prosecutorial discretion to drastically by courtroom and location, and depending on determine whether or not to initiate removal proceedings.38 whether the individual has a lawyer.44 Nevertheless, they Some of the factors immigration ofﬁcers should consider offer critical procedural and substantive protections that include length of residence in the United States and family are utterly absent in summary removal processes: a judge is ties and relationships.39 trained in immigration law and part of a different agency from the one detaining and seeking to deport the nonWhen a non-citizen appears before an immigration judge, citizen; a court hearing provides the opportunity to collect he or she is entitled to certain procedural protections and present evidence and to retain counsel; and certainly so that the hearing is fair. For example, a person in compared with a Border Patrol station, a courtroom is a immigration court facing removal has the right to present, more public and less coercive space. challenge, and examine evidence and has the right to a lawyer (currently at his or her own expense, except in limited circumstances).40 Immigration courts must also Why an Immigration Hearing Matters 12 AMERICAN CIVIL LIBERTIES UNION Case: 14-50393, 02/07/2017, ID: 10304776, DktEntry: 43-2, Page 15 of 203 The Limitations of Deportation Procedures without Hearings Update Summary deportation procedures that bypass the courtroom are hazardous because they offer little to no opportunity for individuals to advocate for their rights; rather, these processes rely on immigration ofﬁcers to be the prosecutor, judge, and jailor. And while review may be even more important for individuals ordered deported in a summary process by someone untrained in immigration law, judicial review and the opportunity to appeal and correct an unfair or illegal removal order is considerably circumscribed. In recent years, DHS has favored the use of formal removal orders as part of its package of penalties under the “Consequence Delivery System.” This program is intended to deter unlawful entries through more punitive measures such as the use of formal removal orders; “lateral” deportations, where people are deported far from where they entered the United States; and criminal prosecution of immigration offenses such as illegal entry and illegal reentry. On November 20, 2014, DHS issued a new memorandum on prosecutorial discretion that applies to all its agencies, including CBP. This memorandum continues to prioritize noncitizens apprehended at the border “unless they qualify for asylum or another form of relief.” How this is memorandum will be implemented and qualifying individuals identiﬁed at the border remains to be seen. http://www.dhs.gov/sites/default/ﬁles/publications/14_1120_memo_prosecutorial_ discretion.pdf non-lawyers, inundated with other law enforcement responsibilities, to evaluate a person’s legal claim with limited opportunities for review of an erroneous order is predictably high. As the MPI report observed, while deportation procedures that do not require a hearing may be speedy, “these gains in ‘efﬁciency’ comeeza cost in terms of the ability of the at 7 nch system -Sa to identify people201 strong equities in the United 2, with ta ry ral When processes like expedited removal were ﬁrst b ua v. Pe States who,rprior to IIRIRA, might have been able to 46 ean immigration judge for relief from removal.” F A introduced and then expanded across the border, agency petition in US hived on and congressional ofﬁcials applaudedtthis move to bypass Immigration and Customs Enforcement (ICE), which Ci ed 93 arc the courtroom as an efﬁcient way to accelerate deportations 3 largely operates in the interior of the United States, applies -50 and save costs.45 However, the costs4 those wrongfully . 1 to prosecutorial discretion in determining whom to deport No removed through summary deportation processes are and to place in deportation proceedings, but CBP has not developed any similar guidance.47 Thus, when the mother extreme. And the risk of error in a system that expects FIGURE 3 Summary and Judicial Removal Orders FY 2003–2013 — Border and Interior Arrest Location Removal Type Border Interior Unknown Total Judicial 331,385 (16%) 804,319 (61%) 148,859 (65%) 1,284,563 (35%) Expedited Removal 1,119,770 (53%) 37,473 (3%) 13,159 (6%) 1,170,402 (32%) Reinstatement 662,331 (31%) 385,164 (29%) 46,323 (20%) 1,093,818 (30%) Administrative Removal 9,330 (0%) 96,087 (7%) 21,959 (10%) 127,376 (3%) Source: Marc R. Rosenblum & Kristen McCabe, Migration Policy Institute, Deportation and Discretion: Reviewing the Record and Options for Change (2014) (based on ICE data analyzed by Migration Policy Institute), available at http://www.migrationpolicy.org/research/deportation-and-discretion-reviewing-record-and-options-change. AMERICAN EXILE: Rapid Deportations That Bypass the Courtroom 13 Case: 14-50393, 02/07/2017, ID: 10304776, DktEntry: 43-2, Page 16 of 203 DHS ofﬁcers have the option to refer a person to a full hearing in immigration court; in practice, this discretion appears to be rarely used. of U.S. citizen children who has lived in the United States for a decade arrives at the border after a short trip to see a dying relative, she is treated the same as a person arriving in the United States for the ﬁrst time—even though CBP could refer her to a judge who could weigh the equities of her case. less protective forms of relief, as shall be subsequently discussed. A father who had lived in the United States for over a decade might be eligible for non-LPR (non-lawful permanent resident) cancellation of removal based on family ties and other favorable factors, but if he is arrested at a port of entry, he can instead be quickly deported through expedited removal. These differences are signiﬁcant and can mean very different outcomes for an individual, not based on their individual circumstances but based on who is weighing their rights. And yet, compared with someone who had a full immigration hearing resulting in his or her deportation, the penalties are just as severe: a person ordered deported by a DHS ofﬁcer is generally subject to the same requirements to remain outside of the United States and accrues the same signiﬁcant penalties if he or she tries to return without authorization. Although the numbers suggest that these non-judicial As discussed in the following sections, there are two procedures are the default, in fact, an immigration principal differences between a hearing in immigration enforcement ofﬁcerhezhave the option to refer a nondoes court and a removal procedure run by a DHS ofﬁcial; one nc 17 ahearing in,an immigration court even citizen to a S is procedural and the other substantive. First, procedurally, ta-full ary 2 20 ral non-citizen is eligible where a person in immigration court has more rights and v. Pe nthe ebru referral wouldfor a summary removal F A procedure. Such a be advisable in several opportunities to inspect and present evidence, iget US n a lawyer, ived o edrights and ch circumstances: for example, where the person may have a and be informed by a neutral arbiter Cit of their ar claim to remain in the United States or requires additional 393 to eligibility for relief. Immigration judges -50 14 are required assistance due to his or her age or a disability. But it appears .of any relief they may inform unrepresented immigrants No that most DHS ofﬁcers are not using their discretion to be eligible for. A similar responsibility does not exist in refer a person to immigration court and all the beneﬁts summary removal proceedings (and indeed, given that the that come with it; instead, most people deported today are ofﬁcer conducting the process is generally not a lawyer, it expelled through these quick but deﬁcient proceedings. is unlikely that he or she will even know those options). In some processes like expedited removal, the individual has These procedures are short-circuited on their face but a very limited right to a lawyer and is held in mandatory even more problematic in practice, when administered detention throughout the process. by ofﬁcers who may have insufﬁcient training and (at the border in particular) may feel pressured to accelerate Second, substantively, people who are diverted from the their processing responsibilities. The procedures courtroom and instead processed through a summary themselves—expedited removal, reinstatement of removal, removal procedure are barred from applying for some voluntary return, administrative removal, and stipulated forms of relief from removal that would be available to removal—are, in practice, coupled with intimidation, them in immigration court. Individuals in administrative misinformation, and coercion so that while they may be removal or whose prior deportation orders are “reinstated,” successful in boosting the number of people deported, for example, are barred from seeking asylum and can they cannot be relied upon to guarantee a fair process or to generally apply only for “withholding of removal” or deliver justice. relief under the Convention Against Torture (CAT) if they fear returning to their country of origin, which are 14 AMERICAN CIVIL LIBERTIES UNION Case: 14-50393, 02/07/2017, ID: 10304776, DktEntry: 43-2, Page 17 of 203 A. EXPEDITED REMOVAL The Expedited Removal Statute and Its History Aside from reinstatement orders, expedited removal orders account for the largest number of deportations in the United States. In FY 2013, almost 200,000 individuals (44 percent of all deportations) were deported through the expedited removal process.48 In expedited removal, a non-citizen is ordered deported by an immigration ofﬁcer (not a judge) while detained, with a very limited right to a lawyer and with very limited opportunities to seek review of the order even if it was unlawful. The only statutory exceptions to expedited removal are individuals who express a fear of persecution and/ or the intent to apply for asylum, as well as people who claim to be U.S. citizens, lawful permanent residents (LPRs), or refugees.55 If a DHS ofﬁcer cannot determine a person’s status, an immigration judge is supposed to review the decision to place the individual in expedited removal.56 Individuals claiming a fear of persecution or intent to apply for asylum must be referred for an interview with an asylum ofﬁcer known as a “credible fear interview”(discussed at greater length later in this report).57 The statutory scheme has been interpreted by some courts to provide only very limited judicial review of an expedited removal order. For example, according to those courts, U.S. citizens, LPRs, and individuals with refugee or asylum status, along with people claiming they were not deported through expedited removal, are the only individuals who can get judicial review of an expedited removal order. 58 So, for example, individuals attempting to apply for asylum but denied that opportunity have no recourse in federal court. The expedited removal statute applies to certain “inadmissible” individuals who arrive without valid travel documents or who attempt to enter through fraud or misrepresentation.49 The law states that an ofﬁcer who ez encounters such a person “shall order the alien removed anch was, initially—and explicitly—created 017 from the United States without further hearing or review.”50 Expedited removal 2 2 ta-S ary ral Moreover, an “inadmissible” individual in expedited v. Pe to facilitateru rapid removal of individuals considered Feb the A removal “is not entitled to a hearing before in immigration d on “arriving” immigrants without a judicial hearing.59 an US ve to be judge . . . or to an appeal of the expedited removal order Cited 93 archi The procedure, which became mandatory at ports of entry to the Board of Immigration Appeals.”5103 other 4-5 Unlike in 1997, was expanded ﬁrst in 2002 to some non-citizens 1 summary removal procedures discussed in this report, No. arriving by sea,60 and then more dramatically in August expedited removal is geographically limited and is used 2004 to some non-citizens found within the United States. at (1) ports of entry, such as an airport; (2) for people Speciﬁcally, the 2004 expansion applied to non-citizens arriving by sea; or (3) against a non-citizen apprehended who meet the other criteria for expedited removal if they: within 100 miles of any land border who has not been admitted or paroled and who cannot prove that he or she has been in the country for at least two weeks.52 Those issued an expedited removal order are barred from returning to the United States for a minimum of ﬁve years.53 Individuals with a prior removal order are subject to a 20-year ban on readmission; individuals ordered removed with a ﬁnding of fraud face a potentially permanent, unwaivable bar on return to the United States.54 Individuals with an expedited removal order can be criminally prosecuted for reentering the United States without permission and are also frequently placed in reinstatement proceedings, discussed later in this report, where their opportunities for relief are extremely limited. “Expedited removal as it exists today takes place in a black box, with unchecked deportation authority by gunwielding Border Patrol agents and immigration inspectors.” — Mark Hetﬁeld, Hebrew Immigrant Aid Society (HIAS)61 AMERICAN EXILE: Rapid Deportations That Bypass the Courtroom 15 Case: 14-50393, 02/07/2017, ID: 10304776, DktEntry: 43-2, Page 18 of 203 Are present in the United States without having been admitted or paroled following inspection by an immigration ofﬁcer at a port of entry; Are encountered by an immigration ofﬁcer within 100 miles of the U.S. international (land) border; and Cannot establish to the satisfaction of an immigration ofﬁcer that he or she has been continuously and physically present in the United States during the 14 days prior to the encounter with immigration authorities.62 Expedited removal applies to individuals encountered at the U.S. border, deﬁned by the U.S. government as within 100 miles of the U.S. land border. ez The notice announcing this anchfrom,the017 States without removal, is S a-deported y 2 2 United expansion stated that DHS could r eraltreviewror ahearing.66 further eb ua use prosecutorial discretion in expedited removal so that v. P F A S on the geographic expansion would apply “only to n U ed i (1) third- hived c Expedited removal was controversial from the outset, and Cit country nationals [not from Mexico or Canada] andar to 393 (2) 0 previous attempts to introduce it (as “summary exclusion”) Mexican and Canadian nationals with4-5 1 histories o.smugglers orof criminal had been rejected.67 It continues to be a contentious N or immigration violations, such as aliens who and problematic procedure that short-circuits justice to 63 have made numerous illegal entries.” advance expediency. At its core, it is a process that assumes a border ofﬁcial can easily identify people arriving in the Even before expedited removal’s expansion, lawmakers United States for the ﬁrst time who have no right to enter and advocates were concerned about its impact on asylum and for whom all a judicial hearing would accomplish seekers, who generally do not have proper documentation would be an extended detention. And yet, even when with them or prior authorization to enter the United States expedited removal was ﬁrst implemented, the Immigration when they arrive seeking protection. As noted before, and Naturalization Service (INS)68 acknowledged that and as discussed in greater detail later in this report, in expanding the procedure beyond individuals arriving at the recognition of this risk, the expedited removal statute states border to non-citizens already in the United States would that if an immigrant “indicates either an intention to apply “involve more complex determinations of fact and [be] for asylum . . . or a fear of persecution, the ofﬁcer shall more difﬁcult to manage.”69 64 refer the alien for an interview by an asylum ofﬁcer.” If an asylum ofﬁcer ﬁnds the individual does not have a “credible The expansion of expedited removal beyond ports of entry fear” of persecution in his or her country of origin, the and across the entire border zone dramatically changed asylum seeker may appeal that ﬁnding to an immigration the landscape of immigration enforcement. Explaining the 65 judge. But if the immigration judge also ﬁnds against signiﬁcance of this expansion, the American Immigration him or her, the non-citizen, like others subject to expedited Law Foundation observed, 16 AMERICAN CIVIL LIBERTIES UNION Case: 14-50393, 02/07/2017, ID: 10304776, DktEntry: 43-2, Page 19 of 203 and historical commitments.”75 Although the amendment passed the Senate with bipartisan support, it was subsequently removed.76 For the ﬁrst time, a non-citizen who has made a land entry into the United States can be removed without the procedural safeguards of a removal hearing, including the right to counsel, right to cross-examine the government’s witnesses and examine the government’s evidence, and signiﬁcantly, the right to an impartial adjudicator.70 Although expedited removal is used almost reﬂexively along the border, its use is not actually mandatory. The Board of Immigration Appeals, analyzing the expedited removal statute, has held that DHS retains discretion to put non-citizens subject to expedited removal in formal removal proceedings in front of an immigration judge.71 Similarly, supplemental information in the notice to expand expedited removal suggests that DHS has discretion to exempt someone from the procedure and to instead afford them a hearing or allow them to voluntarily return to their home country.72 As commentators observed, the notice providing DHS ofﬁcials with discretion not to place a person in expedited removal included no guidance on how to make this decision.73 The version of expedited removal that became law in 1996 eliminated the opportunity for a hearing before an immigration judge for most people arriving in the United States; however, some explicit protections were provided for asylum seekers. These statutory safeguards were intended to ensure that asylum seekers—who frequently arrive without prior authorization or valid travel documents (particularly when ﬂeeing persecution by the government that issues those documents)—were not deported through expedited removal and also to safeguard their opportunity to claim asylum in the United States. Under the expedited removal statute, individuals who express a fear of returning to their home country and/or an intention of applying for asylum cannot simply be deported; rather, the immigration ofﬁcer must refer these individuals for a credible fear interview conducted z by asylum ofﬁcers e United7 anchwith, 201 States Citizenship and a-S Immigration Services.77 Individuals found to have eralt bruary 2 referred to an immigrationajudge . P “credible e SA v d on Fthefear” are then for Immigration Review (EOIR) U under Executive Ofﬁce in e ited rchiv for a hearing. If a person is found not to have a credible C 3a 5039 fear, he or she may contest that ﬁnding and request a 4In 1996, although the U.S.No. 1 Representatives House of hearing in front of an immigration judge.78 overwhelmingly approved IIRIRA, the U.S. Senate rejected some of its provisions, including one limiting protections Despite these requirements, even in its initial years, when for asylum seekers.74 That same year, Senators Patrick Leahy expedited removal was conﬁned to ports of entry, the and Mike DeWine introduced an amendment to restrict expedited removal process failed to adequately identify the use of expedited removal “to times of immigration and protect arriving asylum seekers. In 2001, after several emergencies” certiﬁed by the U.S. Attorney General; as documented stories of legitimate asylum seekers being Senator Leahy observed, “This more limited authority deported through expedited removal emerged, Senators was all that the Administration had requested in the ﬁrst Samuel Brownback, Edward Kennedy, and Patrick Leahy place, and it was far more in line with our international attempted to correct expedited removal and provide more protection for asylum seekers through the Refugee Protection Act of 2001, which never passed.79 In 2004, Congress commissioned a study from the U.S. Commission on International Religious Freedom (USCIRF), which similarly found that immigration enforcement ofﬁcers failed to refer asylum seekers to an asylum ofﬁcer, even when they explicitly stated their fears of persecution or torture.80 USCIRF’s suggested reforms, discussed later in this report, were not adopted. Instead, in 2005 after the Expedited Removal and Asylum Most people with an expedited removal order—even an unlawful one—can never get it reviewed by a judge. AMERICAN EXILE: Rapid Deportations That Bypass the Courtroom 17 Case: 14-50393, 02/07/2017, ID: 10304776, DktEntry: 43-2, Page 20 of 203 report was published, the expedited removal system was expanded and now accounts for 44 percent of deportation orders from the United States. In Practice Today Expedited removal is used extensively not only at ports of entry but also in border communities within 100 miles of the international border. It is not a targeted program that is applied only to individuals with no claims for relief or with signiﬁcant criminal history; rather, it is a procedure used almost as a default all along the U.S. border.81 At ports of entry, as this report documents, expedited removal orders have been issued against longtime residents who left the United States brieﬂy; people with status, including U.S. citizens; individuals traveling on valid business and tourist visas; and asylum seekers who were never given the opportunity to request asylum. In these cases, a border ofﬁcial made the decision that the individual was misrepresenting him or herself or intended to immigrate and, often without providing any evidence to support his or her ﬁnding, issued a removal order that led to separation from family, and which in some cases had life-threatening . v consequences. USA with an expedited removal order can never get a judge to review the circumstances of that order, even when it was unlawful. Whereas U.S. citizens, LPRs, and asylees may at least be able to get judicial review, many people erroneously removed will not and yet live with the consequences of a formal removal order.82 Rosalba, a 56-year-old Mexican woman who never overstayed her tourist visa, was issued an expedited removal order at a port of entry in Texas when driving to visit her husband, who has lung cancer and lives in the United States. Although the U.S. Consulate in Mexico agrees that the order was unfair and that Rosalba never overstayed her visa, it has no authority to remove or ignore the order. She is saving money to apply for a waiver so she can see her husband again. Maria, a U.S. citizen, was issued an expedited removal order and deported to Mexico because the immigration ofﬁcer did not believe a U.S. citizen would speak only Spanish. She has only recently returned to the United States after over a decade in limbo in Mexico and two failed attempts to ez anch , 2017 return and be recognized as a U.S. citizen at the U.S. border. a-S 2 lt Pera ebruary Nydia R., a transgender woman from Mexico, not only nF in ed ostatus as an asylee when she was issued an expedited v Cited 93 archi had removal order but had also recently been attacked by a Advocates interviewed for this report said it is incredibly 503 gang in Mexico. CBP ofﬁcers wrote on her sworn statement rare to get an order rescinded by border ofﬁcials; however, . 14No for the expedited removal order that she had no fear of given the limitations of judicial review, most individuals The sole procedure for judicial review of expedited removal—habeas corpus— is narrow and onerous. Unsurprisingly, between 2009 and 2014, only 27 such petitions were ﬁled. Source: Response from Department of Justice to ACLU Freedom of Information Act, Ofﬁce of Immigration Litigation (OIL) Cases Received During Fiscal Years 2009 through 2014 (Received October 16, 2014), available at www.aclu.org. 18 AMERICAN CIVIL LIBERTIES UNION removal, despite recording her account of the violence she had just suffered. She was attacked and repeatedly sexually assaulted after her unlawful deportation to Mexico. As courts have recognized, expedited removal gives immigration ofﬁcers incredible power and discretion; not only do ofﬁcers refuse entry to someone based in many cases on subjective assumptions and with little supporting evidence, but an expedited removal order comes with signiﬁcant penalties and almost no opportunity for review.83 And yet, despite these consequences, the processes and protections associated with expedited removal are, facially and in practice, disturbingly circumscribed. 84 Case: 14-50393, 02/07/2017, ID: 10304776, DktEntry: 43-2, Page 21 of 203 B. REINSTATEMENT OF REMOVAL Over the last several years, the largest number of removal orders have been “reinstatement orders,” which are issued by DHS ofﬁcers against individuals who illegally reentered the United States after departure under a prior order.85 In FY 2013, DHS deported 159,634 people through reinstatement.86 Prior to 1997, individuals who had previously been deported and returned illegally had the right to a hearing before an immigration judge in which they could apply for any relief for which they were eligible. After 1997, however, such individuals face summary removal without an immigration judge hearing, a bar to relief from removal and other statutory obstacles. With limited exceptions, once a removal order is reinstated, the person is not eligible and cannot apply for relief from deportation. United States for over a decade since their deportation, raised U.S. citizen kids, and built a life in the United States are cut off from virtually all avenues of remaining in the United States due to the prior order. And unlike Although DHS has the discretion to place an individual in expedited removal, reinstatement proceedings take place regular removal proceedings before a judge,87 individuals everywhere in the country.94 A person with a reinstated who reenter after their deportation—unless they ﬁt within order is barred from reentering the United States for up to certain statutory exceptions88—frequently have their prior 20 years—unless they have an aggravated felony conviction, removal orders “reinstated” by DHS ofﬁcers without a in which case they are barred for life.95 Individuals who hearing and without a meaningful chance to raise defects in ez reentered illegally after April 17 1, 1997, after a the prior order or explain why a reentry may be lawful. As anch are 20 eligible to applyprioraorder arelinadmissible ry 2, not for waiver ta-S a and with other summary removal processes, in the reinstatement era P to reenterbruUnited States for another 10 years after their . e the process, the DHS ofﬁcers act as the prosecutor, judge,A v US and ed on F 96 In addition to these “civil” penalties, a person deportation. jailor and can issue a reinstatement orderd inquickly. hiv very Cite 93 arc who reenters the United States after being deported can 503 ofﬁcer be federally prosecuted for illegal reentry.97 In fact, federal In reviewing an order for reinstatement, a DHS o. 14 prosecutions for these crimes (illegal entry and reentry) must conﬁrm the identity N the non-citizen, the prior of account for the vast majority of federal prosecutions order of deportation, and that the individual reentered 89 today.98 the United States unlawfully. As part of this proceeding, a DHS ofﬁcer will conduct an interview, generally under oath, resulting in a written sworn statement signed by the non-citizen and a second ofﬁcer.90 The ofﬁcer must provide non-citizens with written notice that they are removable and inform them that they may make a statement contesting this determination.91 An individual whose order is reinstated can appeal the determination to the appropriate circuit court of appeals within 30 days of the order.92 The record for this review is limited, as a court of appeals can only review the administrative record on which the reinstated order was based.93 Immigration law does not have a statute of limitations for old removal orders; thus, individuals who have lived in the Moreover, with limited exceptions, the statute holds that once a removal order has been reinstated, “the [person] is not eligible and may not apply for any relief under this Act.”99 For many individuals facing reinstatement of a prior order, the only relief they can apply for—assuming they are made aware of it—is mandatory protection for individuals who can demonstrate a reasonable fear of torture or persecution in their country of origin.100 Again, DHS has the option of using its discretion to terminate the reinstatement process (and either cancel the reinstatement order, refer the person to a full immigration court hearing, or defer the deportation). Doing so allows individuals access to stronger procedural rights to develop and pursue their case and opens up other forms of relief AMERICAN EXILE: Rapid Deportations That Bypass the Courtroom 19 Case: 14-50393, 02/07/2017, ID: 10304776, DktEntry: 43-2, Page 22 of 203 Seeking Refuge: Credible Fear vs. Reasonable Fear N on-citizens who arrive in the United States and hope to seek asylum may do so if they have suffered or fear they will suffer persecution on the basis of their race, religion, nationality, membership in a particular social group, or political opinion. As discussed earlier, these individuals must pass a credible fear interview, administered by an asylum ofﬁcer from USCIS (United States Citizenship and Immigration Services), and will then see an immigration judge who evaluates their claim. Asylum includes many critical beneﬁts, such as the right to stay and work in the United States, a path to applying for lawful permanent residence in the United States (and eventually citizenship), and the ability to bring family members to join them in the United States. To be eligible, individuals Spencer Platt/Getty must demonstrate a “credible fear” of persecution Police patrol a gang-dominated neighborhood in Honduras. Many or torture—deﬁned as “a signiﬁcant possibility” Hondurans are ﬂeeing the extreme violence in search of protection in ez the United States. that the individual (1) is eligible for asylum under anch , 2017 a-S INA § 208 because of past persecution or has a eralt bruary 2 .P Fe “well-founded fear” of future persecution101 or (2) is SA v U d on while the U.S. Supreme Court has observed that eligible for withholding of removal or deferral iof removalhive Moreover, ed n C§it208.17.102 arc a 10 percent risk of future persecution might be sufﬁcient under CAT, under 8 C.F.R. § 208.16 or 393 4-50 to show a well-founded fear of persecution to support a 1 No. grant of asylum,106 courts have required immigrants seeking But individuals with prior removal orders (or those who have certain convictions) are not eligible for asylum withholding to demonstrate at least a 51 percent likelihood of suffering future persecution.107 Thus, individuals who and must meet a higher standard of proof by showing a “reasonable fear” of persecution or torture. These might meet the lower threshold in a credible fear interview individuals must demonstrate a “reasonable possibility” of may have more difﬁculty passing a reasonable fear interview 103 future persecution or torture. Withholding of removal based on identical facts. Moreover, immigrants seeking protection while in reinstatement proceedings are likely to be (under CAT and the Refugee Convention) and deferral of detained for a long period of time. For years, advocates have removal (under CAT) are important protections available been concerned about the delays applicants face in getting for individuals with reinstated orders of removal, as they the interview with an asylum ofﬁcer; although delays for the must be in order to comply with U.S. obligations under credible fear interview appear to be declining, individuals international human rights law. But these processes and subject to reinstatement awaiting a reasonable fear interview their beneﬁts are not equivalent. First, as indicated by the will wait in detention an average of 111 days.108 Finally, Asylum Ofﬁce of USCIS, the standard for “reasonable fear” is higher than the standard of proof required to establish a for a person who wins withholding of removal or deferral “credible fear” of persecution.104 For example, for a person of removal, the full beneﬁts of asylum are foreclosed; for example, he or she will not have the right to petition to bring in reinstatement proceedings, it is not enough to show past his or her family to the United States. He or she can never persecution “regardless of the severity of that persecution,”105 travel internationally and cannot petition for derivative even though such evidence would sufﬁce for a person to (lawful immigration) status for his or her children.109 show credible fear of persecution. 20 AMERICAN CIVIL LIBERTIES UNION Case: 14-50393, 02/07/2017, ID: 10304776, DktEntry: 43-2, Page 23 of 203 * * * from deportation. In practice, it is unclear how often DHS ofﬁcers utilize this discretion, given the speed with which reinstatement can be accomplished. Underlying the reinstatement statute and its short-circuited procedures is an assumption that non-citizens who were previously deported have had their day in court. As the Second Circuit stated, without analysis, in Garcia-Villeda v. Mukasey, “[T]he reinstatement of removal statute expressly prohibits us from giving petitioner a second bite at the apple.”112 But many people never had a ﬁrst bite at justice, and these abbreviated reinstatement proceedings do not provide a real opportunity for the governmental agency or the courts to hear or correct mistakes in prior orders. In Practice Many individuals interviewed by the ACLU reported being told by immigration ofﬁcers that because they had a prior deportation order, they had no chance to stay in the United States and would be deported. Some individuals were not actually aware they had a prior deportation order, either because they never received the paperwork or had their order explained; in some cases, individuals interviewed for this report had in absentia orders from an immigration judge but said they never received notice of the hearing where their deportation order was issued, which is a statutory ground for rescinding that order. For all these individuals, however, the near-automatic nature of the reinstatement process leaves little opportunity to explain the circumstances in which the prior removal order was issued—or to challenge it. The reinstatement process is particularly harsh when applied to people who previously were deported in summary proceedings where they did not have a hearing before an immigration judge, and thus, had no opportunity to present evidence, receive legal assistance, or have a meaningful opportunity to appeal the prior removal order. The ACLU has documented several cases in this report where a person was erroneously deported by an immigration ofﬁcer, z never had their day in court or he has 017 been able to nc acorrect the original error, and still is not given ta-S a to 2, 2 the eralopportunity ryhave a hearing with meaningful review. u P Some claims for relief may still be raised in the v. USA e reinstatement process. If an individual facing reinstatement d d in origin,iv claims a fear of returning to his orCite her country ofarch 93 the DHS ofﬁcer is required to refer4-503 to an asylum him or her 1 ofﬁcer to determine whethero. alien has a “reasonable N the fear” of persecution or torture.110 Should the asylum ofﬁcer determine that the non-citizen has a reasonable fear of being removed to their country, the non-citizen must be referred to an immigration judge to apply for withholding of removal or relief under CAT.111 Courts have held that the reinstatement statute prohibits a “second bite” to challenge their deportation. But many people never got a ﬁrst bite at justice. br n Fe o Narcisco G., who came to the United States in 2002, was given voluntary departure in 2009, but sick with cancer and concerned about leaving his three U.S. citizen children, he never left. He was subsequently detained by ICE after being arrested for an alleged ﬁght (he believes he was never charged or convicted), and although he hired an attorney, he was not allowed to meet with him. Narcisco said all the forms were in English, which he does not read, and he was not asked about his fear of returning to southern Mexico or given the chance to call his family before he was deported to Reynosa: “The ICE agent said sign the order, and I said no, my attorney is looking into it. He said, ‘Whether you want to sign or not, you’re going to be deported.’”113 Hermalinda L., an indigenous asylum seeker from Guatemala, was placed in reinstatement proceedings because she had previously been issued an expedited removal order but returned to the United States after her deportation. At the time CBP issued an expedited removal order, she had claimed fear of being removed but was not referred for a credible fear interview prior to her removal. Once deported to Guatemala, Hermalinda was AMERICAN EXILE: Rapid Deportations That Bypass the Courtroom 21 Case: 14-50393, 02/07/2017, ID: 10304776, DktEntry: 43-2, Page 24 of 203 gang-raped by police and shot because of her oppositional politics. She left her daughter with family in Guatemala and once again make the dangerous journey to the United States. Fortunately, Hermalinda, who was represented by an attorney, expressed her fear of being deported to ICE ofﬁcers and was given a reasonable fear interview. Even though she had previously claimed fear at the border and suffered harm after being deported back to Guatemala, she cannot bring her daughter from Guatemala to join her even if she wins her claim to withholding of removal in immigration court. Some immigrants subject to reinstatement may also be able to adjust their status in certain limited circumstances.114 In reality, however, even individuals who are not subject to removal or are eligible to have their orders cancelled likely will ﬁnd it difﬁcult to learn about and present these arguments, given the speed of these proceedings, the absence of legal assistance, and the lack of a neutral arbiter such as a judge. A reinstatement order can be entered immediately after the interview so that the person is quickly deported, and most individuals are unlikely to have a lawyer or the opportunity to consult with legal services prior to their deportation. ez anch , 2017 a-S eralt bruary 2 .P SA v d on Fe in U hive ited C arc 393 -50 o. 14 N 22 AMERICAN CIVIL LIBERTIES UNION Case: 14-50393, 02/07/2017, ID: 10304776, DktEntry: 43-2, Page 25 of 203 C. ADMINISTRATIVE VOLUNTARY DEPARTURE/VOLUNTARY RETURN The Statute Administrative voluntary departure, also known as “voluntary return,” is a summary deportation procedure by which a non-citizen “accepts” removal from the United States without a formal removal order. This is not to be confused with the form of voluntary departure that is granted by an immigration judge during or after a formal hearing. Instead, voluntary return is issued by an immigration ofﬁcer and bypasses the immigration court system completely. According to December 2013 statistics from ICE, 23,455 voluntary returns took place in FY 2013.115 Voluntary return, which is reserved for non-citizens with a limited or no criminal history, is often considered to be an immigration “beneﬁt” because the recipient does not receive a formal removal order. That does not mean there are no consequences that accompany voluntary departure. For example, a person who has been unlawfully present in the United States for one year or more and takes voluntary departure is thereafter “inadmissible” for a period of ten years.122 A person unlawfully present for over 180 days but less than one year is inadmissible for a period of three years if he or she takes voluntary departure.123 It is possible for some individuals to get a waiver of this inadmissibility bar, but such waivers are entirely discretionary and available only to individuals who can demonstrate “extreme hardship” to a U.S. citizen or lawful permanent resident spouse or parent.124 If the waiver is denied, there is no way to appeal or have that denial reviewed.125 A person who reenters the United States before the time bar has run will be subject to an even more severe ground of inadmissibility and will be disqualiﬁed from most forms of relief from deportation.126 The administrative voluntary departure statute reads, in part: “The Attorney General may permit an alien voluntarily to depart the United States at the alien’s own expense … ez in lieu of being subject to [removal proceedings before an anch , 2017 a-S immigration judge]….”116 The accompanying regulations 2 eraltrelativerinformality of voluntary return has led to a P The eb uary make clear that this process must be voluntary: “Voluntary. v nF USA common misconception that there are no penalties for departure may not be granted unless the alien requests such ed o in hiv reentry. Similarly, the lack of formal process in expedited Cited 9 conditions” voluntary departure and agrees to its terms and3 arc 3 removal leads many immigrants to assume they have been [emphasis added].117 Federal courts4-50 . 1 have similarly conﬁrmed granted voluntary departure when, in fact, they have an oreturn may do so only if the N that a person taking voluntary expedited removal order (which acts just like a judge-issued decision is “voluntary and knowing.”118 removal order). In Practice Under the statute, an individual who accepts voluntary return has up to 120 days to leave the United States.119 The actual amount of time allotted may vary, as the implementing federal regulations permit an “authorized ofﬁcer” to set the time frame for departure, so long as it is within 120 days of the non-citizen’s acceptance of voluntary departure.120 For many non-citizens, having some period of time to arrange their affairs in the United States—for example, to make child care and housing arrangements for family members who stay behind, spend time with family, close bank accounts, or prepare a place to live in the country to which they are being deported—is a key beneﬁt of voluntary return, since deportation is such a signiﬁcant rupture in a family’s life. In practice, however, the ACLU has found that a voluntary return is executed “as rapidly as logistically possible.”121 Voluntary return may act as a beneﬁt for some individuals, but for immigrants with strong claims to relief from removal, voluntary departure is not a rights-protective process. As in other forms of summary proceedings that bypass the courtroom, voluntary return denies an individual the opportunity to apply for relief from deportation, i.e., for ways to remain in the United States. For example, a person who takes voluntary return cannot apply for cancellation of removal, and once he or she has been returned to Mexico cannot apply for programs like Deferred Action for Childhood Arrivals (DACA) that require an individual be in the United States at the time of the application. Unlike expedited removal, voluntary departure is not conﬁned to the (already broadly interpreted) border AMERICAN EXILE: Rapid Deportations That Bypass the Courtroom 23 Case: 14-50393, 02/07/2017, ID: 10304776, DktEntry: 43-2, Page 26 of 203 zone, nor is it applied only to recent border crossers. Moreover, advocates interviewed for this report expressed their concerns that people eligible for relief from removal and/or eligible to adjust status and remain in the United States are instead being coerced to take voluntary return by immigration ofﬁcers without knowing the rights they are waiving or penalties they will incur. As immigration enforcement ofﬁcers are generally not trained to screen for and evaluate a person’s immigration claims—which often requires sophisticated legal analysis—they are not in a position (nor should they be) to advise immigrants whether voluntary departure is a beneﬁt. Given the speed of this process and the fact that most people are not represented by—or even able to contact—an attorney and by default rely on the arresting or interrogating ofﬁcer to explain their rights, there is a signiﬁcant risk that individuals with strong claims to remain in the United States will and have been coerced to give those rights up. individuals who lived unlawfully in the United States for different time periods.128 In June 2013, the ACLU ﬁled a class action lawsuit challenging both the adequacy of the form and the abusive practices used to coerce individuals with rights to remain in the United States into signing voluntary departure.129 One of the named plaintiffs in the lawsuit, Isidora LopezVenegas, is the mother of an 11-year-old U.S. citizen son with Asperger’s syndrome. Immigration ofﬁcers coerced her to accept voluntary departure, claiming she would otherwise be detained and separated from her son for several months, and incorrectly stating that it would be easy for her to apply for legal status from Mexico.130 Isidora’s son joined her in Mexico but has not been able to receive the necessary educational services he needs given his disability. The ACLU reached a settlement with DHS in August 2014, under which DHS will be required to do the following: The administrative voluntary departure process is supposed Provide detailed information—in writing, orally, to include procedural protections to ensure that the person and throughhez hotline—regarding the who agrees to voluntary departure—and waives the right to c a 1-800 17 -San y 2, 20“voluntary return” to a go to court and defend their claims—is making a truly volltconsequences of taking ua Pera non-citizensrasked to choose between “voluntary untary decision. For example, federal regulations governing v. Febr A S on return” and a hearing before a judge; voluntary departure require that “every decisionin U d regarding ein writingarchived Cit voluntary departure shall be communicated 3 on Cease “pre-checking” the box selecting “voluntary 5039 and Form I-210, Notice of Action—voluntary-departure” 4 return” on the forms that DHS ofﬁcers provide to .1 authorize a grant of voluntaryNo departure only when the non-citizens; non-citizen has requested it and accepted its terms.127 In Permit non-citizens to use a working phone, practice, however, these procedural requirements are not provide them with a list of legal service providers, always fulﬁlled and, indeed, this form is not even used. and allow them two hours to reach someone before deciding whether to accept “voluntary return”; In Southern California, local attorneys and the ACLU of San Diego & Imperial Counties documented numerous examples of coercion and misinformation used by immigration ofﬁcers to secure a voluntary departure and the ofﬁcers’ failure to comply with the regulations’ procedural safeguards. In particular, the ACLU found that the form immigration ofﬁcers were actually using for voluntary return, Form I-826, was legally deﬁcient in signiﬁcant ways. For example, the form is silent on the legal consequences of taking voluntary departure, such as the loss of signiﬁcant procedural rights that apply in immigration court, the relinquishment of forms of relief that a person cannot apply for outside of the United States, and the bars on readmission to the United States for 24 AMERICAN CIVIL LIBERTIES UNION People eligible to remain in the United States are coerced to take voluntary return without knowing the rights they waive or the penalties incurred. Case: 14-50393, 02/07/2017, ID: 10304776, DktEntry: 43-2, Page 27 of 203 Isidora Lopez-Venegas (pictured above with her family in San Diego, California) was picked up by CBP and coerced into signing a voluntary departure form. Both Veronica chez Lopez-Venegas would have nV. and Isidora17 20 been a-Sa for cancellation of removal if they had gone eligible 2, lt before immigration Pera anbruary judge, given their strong family and v e Cease pressuring or coercing individuals to accept. community USA ed on F ties, their long presence in the United States, in “voluntary return”; and v and their lack of criminal history. But because they took Cited 93 archi are Allow ACLU attorneys to monitor 3 50 compliance with voluntary return, they lost that opportunity and theysubject to the 10-year unlawful presence bar—although may . 14- years.131 the settlement agreement for three No wait much longer, as they will need to wait until their The misconduct and abuses challenged in this lawsuit are children (as the “qualifying relatives”) are 21 years old so that they can apply to adjust status. not unique to California, however. This report documents similar stories in other parts of the United States. For Isidora Lopez-Venegas, however, will ﬁnally have a fair example, in May 2013, Veronica V., a mother of three opportunity to present her claims. As previously noted, young U.S. citizen children who had been living in the in August 2014, the ACLU settled its lawsuit against DHS, United States for 19 years, was apprehended by police in a which has agreed to signiﬁcant reforms of the voluntary trafﬁc stop near San Antonio, Texas, referred to ICE, and return system in Southern California and to bring back pressured to sign a voluntary departure form, which was in ACLU plaintiffs who were unjustly removed through this English, a language she does not read ﬂuently. Although her practice.133 As this landmark settlement demonstrates, husband secured a lawyer and brought paperwork showing even the U.S. government recognizes the deﬁciencies of she was in the process of applying for status, immigration the voluntary return system—but these practices are not ofﬁcers refused to let her speak to an attorney or her family unique to California and need to be addressed nationally. and deported her, 24 hours later, to Mexico. Although Veronica repeatedly told the ofﬁcers that she wanted to see While voluntary departure may help some people, its a judge, she recalls that during several hours of questioning coercive application can violate due process and result in the ofﬁcers continually told her that if she did not sign, she severe consequences for people who, if they had seen a judge, would today be lawfully in the United States with would go to jail. She has been separated from her husband their families. and children for a year.132 Provide lawyers meaningful access to clients detained by Border Patrol or ICE; AMERICAN EXILE: Rapid Deportations That Bypass the Courtroom 25 Case: 14-50393, 02/07/2017, ID: 10304776, DktEntry: 43-2, Page 28 of 203 D. ADMINISTRATIVE REMOVAL UNDER INA § 238b The Statute that the non-citizen bypass the courtroom; in fact, it permits DHS144 to exercise discretion either to process the individual through a summary 238b process or to initiate regular removal proceedings before an immigration judge.145 If there is doubt as to whether the conviction is an aggravated felony, DHS could issue a Notice to Appear (NTA) before an immigration judge. Nonetheless, the statute and its implementing regulations contain no guidance for the charging ofﬁcer as to whether a person should be processed through 238b or referred to immigration court. Consequently, the decision to place someone in a summary removal proceeding instead of a formal court hearing may be arbitrary—but also decisive.146 DHS has an additional expedited removal tool that can be used anywhere in the United States against certain non-citizens based on their criminal history. Under INA § 238(b), DHS has discretion to place non-citizens who are not lawful permanent residents134 and who have been convicted of certain criminal offenses (including “aggravated felonies,”135 which are not necessarily felonies under criminal laws, and “crimes involving moral The difference between a 238b removal procedure turpitude”136) in administrative proceedings where they conducted by a DHS ofﬁcer and a full hearing before a can be deported without seeing a judge.137 In some cases, judge is considerable. A non-citizen’s options for relief these proceedings (known as “238b”) take place while (and, consequently, the outcome of the case) and his or her the individual is still serving their criminal sentence such procedural rights differ dramatically depending on which that he or she never enters immigration detention but is process he or she is referred into. Notably, individuals deported directly from criminal custody.138 However, the ez individual generally cannot be deported for 14 calendar anch , 2017 a-S days after the date the 238b order was issued, “in order era4lt bruary 2 FIGURE that the alien has an opportunity to apply for judicial A v. P Fe US 139 d on review.” This temporary waiting period can be waived iveAdministrative Removal (238b) Cases FY 2008–Present in Cited 93 arch by the non-citizen.140 503 . 14-given reasonable N must be Individuals in 238b proceedingso notice of the charges and an opportunity to review the charges and the evidence against them, and they may be represented by a lawyer, at their own expense.141 A record of the proceeding must be maintained for judicial review, and the ofﬁcer who adjudicates the order cannot be the charging ofﬁcer.142 If the individual’s conviction does not meet the aggravated felony deﬁnition or if DHS does not have adequate proof of the conviction, DHS must terminate proceedings but can nonetheless initiate formal removal proceedings in immigration court.143 Although the determination that a conviction is an aggravated felony is often very complicated, in 238b proceedings, it is a DHS ofﬁcer— who need not be a lawyer, let alone a judge—who makes that determination. The administrative removal statute does not require 26 AMERICAN CIVIL LIBERTIES UNION Number of 238b cases where the individual was granted relief Number of 238b Cases 14,000 10,500 7,000 3,500 0 2008 2009 2010 2011 2012 2013 2014 Between FY 2008 and FY 2013, ICE issued 67,275 administrative “238b” removal orders. In only 0.85 percent of those cases was relief from deportation granted. Very few individuals in 238b proceedings are able to claim relief due in part to the substantive and procedural limitations of those processes. Source: Department of Homeland Security, Immigration and Customs Enforcement, Response to ACLU Freedom of Information Act Request, FOIA #14-11764, available at www.aclu.org. Case: 14-50393, 02/07/2017, ID: 10304776, DktEntry: 43-2, Page 29 of 203 processed through 238b are barred from receiving any discretionary relief from deportation—for example, the ability to adjust status or apply for cancellation of removal—even if they would be eligible for these forms of relief in immigration court. In Practice The decision to place someone in a summary removal proceeding instead of a formal court hearing may be arbitrary—but also decisive. Individuals who may not be deportable based on their conviction and should not even be in these proceedings may never be made aware of that fact because the only person they speak with in 238b proceedings is likely to be the charging ofﬁcer. Once in 238b proceedings, even for more substantial rights that apply in immigration court. individuals who may be eligible for relief, the options for Unlike a full immigration hearing, 238b proceedings relief are more restricted than they are in immigration provide no opportunity for the individual to present court. For example, a person who is afraid to return to their claims for relief or other equitable factors before a neutral country of origin might be eligible for non-discretionary decision-maker, no meaningful opportunity to provide relief such as withholding of removal or relief under 147 evidence or question witnesses, and no verbatim recording CAT. They may also qualify for a U visa as a crime 148 of the proceeding.152 These proceedings often take place victim. But in many cases, individuals are never made while the personhezcriminal 7 is in custody or immigration aware of these opportunities. Although the 238b process anc 2 more -Sand may appear 01 like an interrogation than detention is not always as accelerated as that of expedited removal, 2, lta Pera ebruary a judicial hearing. Critically, the presiding DHS ofﬁcer, which can be effectuated within 24 hours, it nonethelessv. SA nF unlike an immigration judge, is not required to inform takes place quickly, behind closed doors,d in U little ved o and with the non-citizen if he or she is eligible for relief (and, Cite 93 In chi opportunity for the non-citizen to get assistance. arsome indeed, may not know whether a person is eligible for any 503 cases, the proceeding takes place 14- the individual is still while o. their sentence; in those relief). As these ofﬁcers are not required to be lawyers, N in criminal custody completing they may fail to recognize that the person cannot actually cases in particular, it may be difﬁcult to ﬁnd immigration be placed in 238b proceedings, for example, because the resources or relevant legal orientation services that could individual was not convicted of a crime that is considered explain the various forms of relief from deportation and an aggravated felony. The determination that a person claims they could make. has been convicted not just of a crime, but of a crime that constitutes an aggravated felony or other designated offense The procedural protections in a 238b proceeding are under immigration law (such as a crime involving moral limited to providing the non-citizen with a notice of intent turpitude), generally requires signiﬁcant legal analysis that that states the basis for his or her “deportability” as an these ofﬁcers are not qualiﬁed to undertake. Advocates aggravated felon; the right to counsel at the non-citizen’s and federal public defenders interviewed for this report own expense; and the right to examine the government’s observed that this legal analysis is highly complicated and evidence.149 The individual then has the chance to respond that untrained immigration ofﬁcers, who are not legal in writing, within 10 days of receiving the notice, to dispute professionals, are likely to make mistakes. Indeed, U.S. the designation of their crime as an aggravated felony or 150 Supreme Court Justice Samuel Alito, concurring in Padilla other designated offense. If the individual does choose to v. Kennedy (the U.S. Supreme Court case recognizing appeal the removal order, he or she can ﬁle an appeal to the 151 the responsibility of criminal defense counsel to inform relevant federal circuit court of appeals. defendants of possible immigration consequences from a guilty plea), observed that even for lawyers untrained These procedural protections are no substitute for the AMERICAN EXILE: Rapid Deportations That Bypass the Courtroom 27 Case: 14-50393, 02/07/2017, ID: 10304776, DktEntry: 43-2, Page 30 of 203 Identifying an “aggravated felony” requires signiﬁcant legal analysis that DHS ofﬁcers are not qualiﬁed to undertake. in immigration law, “determining whether a particular crime is an ‘aggravated felony’ or a ‘crime involving moral turpitude [(CIMT)]’ is not an easy task.”153 ofﬁcer conducting his 238b proceeding convinced him that there was no point in appealing. Ricardo withdrew his request for an appeal and was deported to Mexico, leaving his parents and U.S. citizen ﬁancée in the United States. He later returned to the United States and was prosecuted for illegal reentry in a federal court, which agreed that his earlier deportation violated due process and that he should not have been deported for an aggravated felony.154 As in all these proceedings that bypass the courtroom, individuals with disabilities are at a signiﬁcant disadvantage in defending their rights in the absence of both legal assistance and any neutral arbiter to help identify their rights and ensure the person is actually removable. Deolinda Smith-Willmore, a partially blind U.S. citizen born in New York who also had diabetes and schizophrenia, was misidentiﬁed as a citizen of the Dominican Republic while serving a sentence for assault and deported through 238b. Ms. Smith-Willmore, who was 71 at the time, remained in a nursing home in the Dominican Republic for four months while her lawyer fought to have her returned.155 Ricardo S., who came to the United States from Mexico when he was eight months old, was incorrectly processed through 238b based on a misdemeanor conviction for conspiracy to commit burglary, his ﬁrst offense, which was not an aggravated felony and for which he spent z only two days in jail. Ricardo—who was 20 at the time, nche 201 orders for individuals asummary ,removal7 Although these lta-S felonies may without a lawyer, and in jail at the time of his interview er aggravateduary 2 appear to be an efﬁcient witha .P br with ICE—nevertheless asked to see a judge and wanted v means of deporting those who ﬁt within DHS’s stated SA n Fe nU h do to appeal ICE’s decision to remove him.iHowever, the ICE ive priorities, they sacriﬁce fairness and ted i c C ar 393 -50 o. 14 N accuracy, and their use incorrectly presumes that all these individuals are both deportable and ineligible for relief. John Moore/Getty An Arizona National Guardsman watches over the U.S. border with Mexico at an observation post on December 7, 2010, in Nogales, Arizona. 28 AMERICAN CIVIL LIBERTIES UNION Case: 14-50393, 02/07/2017, ID: 10304776, DktEntry: 43-2, Page 31 of 203 7. A statement that the alien will accept a written order for his or her deportation, exclusion, or removal as a ﬁnal disposition of the proceedings; and E. STIPULATED ORDERS OF REMOVAL 8. A waiver of appeal of the written order of deportation or removal.159 The Statute Like anyone accepting pre-hearing voluntary departure A stipulated order of removal is another deportation order or receiving an expedited removal order, a non-citizen that is entered without an immigration hearing but is who signs a stipulated order is not given the opportunity signed by an immigration judge.156 Unlike other orders in to present claims for relief and defenses to deportation. this report, however, stipulated orders of removal can be Rather, when the person “stipulates” or agrees to accept used against any non-citizens, including lawful permanent deportation, they admit to the factual allegations against residents as well as undocumented immigrants, and them and that they are removable;160 the immigration are technically issued by immigration judges. However, judge’s role is conﬁned to determining whether the the only person who actually speaks to the individual is individual’s decision to sign the order was made knowingly, generally a deportation ofﬁcer from DHS. An immigration voluntarily, and intelligently.161 judge must sign off on stipulated orders and may require that the individual be brought into court before approving ICE describes stipulated orders as beneﬁcial for both the the order, particularly where the stipulated order suggests “interested aliens” and the government: “[A] stipulated 157 removal order helps ensure swift justice, reduces their time due process problems. However, federal regulations in detention and expedites their return to their homeland. appear to permit the immigration judge (IJ) to “enter such ez Furthermore, stipulated 2017 orders are a good avenue an order without a hearing and in the absence of the parties anch , removal a-S economy2 for lt based on a review of the charging document, the written Pera judicial ruary in that they create operational v. efﬁciencies for both the immigration and criminal 158 Feb and stipulation, and supporting documents, if any,”USAin d on 162 Certainly, by circumventing a full hearing at in several cases, that has been the practice in the past. rchive courts.” Cited 93 a which a non-citizen has the opportunity to present claims - 03 4by5the judge becomes a and defenses, stipulated orders may speed up deportation, The stipulation, which wheno. 1 N signed but the beneﬁts to those individuals who are otherwise ﬁnal order of removal, must include the following: eligible to see a judge are less obvious. 1. An admission that all factual allegations contained in the charging document are true and correct as written; 2. A concession of deportability or inadmissibility as charged; 3. A statement that the alien makes no application for relief under the Act; 4. A designation of a country for deportation or removal under section 241(b)(2)(A)(i) of the Act; 5. A concession to the introduction of the alien’s written stipulation as an exhibit to the Record of Proceeding; 6. A statement that the alien understands the stipulated request’s consequences and that the alien enters the request voluntarily, knowingly, and intelligently; In Practice Without a hearing and the opportunity to actually question the non-citizen, immigration judges are not truly able to assess whether the decision to sign a stipulated order—thereby waiving signiﬁcant rights—was a “knowing, intelligent, and voluntary” decision. While several immigration judges refuse to sign stipulated orders or require that the individual be brought before them ﬁrst, this is not required or standard practice.163 The absence of a meaningful opportunity to check whether the individual understands the consequences of a stipulated removal is particularly problematic given the coercive detention setting in which these deportation orders are explained and signed. The overwhelming majority—96 percent—of AMERICAN EXILE: Rapid Deportations That Bypass the Courtroom 29 Case: 14-50393, 02/07/2017, ID: 10304776, DktEntry: 43-2, Page 32 of 203 “ICE has very signiﬁcant leverage over a pro se detained alien. I believe EOIR was created as a safety measure to ensure fairness.” individuals who signed stipulated orders between 2004 and 2011 did not have a lawyer,164 and as in other summary removal proceedings, might not understand that they have a deportation order if they never saw a judge.165 Even immigration judges reviewing the orders appear to understand that individuals who take these orders have been coerced into signing rather than requesting a stipulated order.166 ICE ofﬁcers, who are generally the only people presenting information about stipulated removal to immigration detainees, have “routinely given misleading, confusing, and downright inaccurate information to . detainees about the law.”167 SA v for Immigration Review] was created as a safety measure to ensure fairness.”171 Before 2003, stipulated orders were very rare; but in 2008, more than 30,000 individuals were removed through stipulated orders, and between 2004 and 2010, over 160,000 individuals were deported through stipulated orders of removal.172 Although DHS has not made public the most recent ﬁgures for stipulated orders, it appears that reliance on those orders has declined since 2010: in FY 2012, approximately 15,000 non-citizens were removed through stipulated removals.173 Immigration attorneys and federal public defenders consulted for this report anecdotally report that use of these orders has dramatically declined, perhaps due to public and agency awareness that these orders frequently violate due process.174 Advocates also credited a 2010 decision from the Court of Appeals for the Ninth Circuit, which found a stipulated order of removal violated due process because the non-citizen, who did not speak English and was not presented with forms in Spanish, could ez 7 anch his rights to an attorney and an not havea-S waived , 201 t validly ary 2 l appeal. Pera 175 According to Judge Dana Leigh Marks, President bru n Fe of the National Association of Immigration Judges, “The in U hived omade judges think about the process for stipulated case ited rc C Deportation Without Due Process, a 2011 report 93 a on orders of removal. There are just not enough safeguards.”176 -503 4government records Nonetheless, these orders are still legal, and as such they stipulated removals based on extensive 1 No. obtained through FOIA requests, demonstrated that in the may be the basis for a reinstated order of removal or early/mid-2000s local ICE ofﬁces and some immigration prosecution for illegal reentry.177 courts were “encouraged, and given incentives, to increase the number of stipulated removals entered against non-citizens in their jurisdictions.”168 The incentive was explicit: to increase the number of removal orders. Local ICE ofﬁces were given quotas, and immigration judges, who often grapple with heavy caseloads, were encouraged to utilize stipulated orders as a means to increase the case completion and removal ﬁgures.169 The released government records also suggested that these orders might have been used against children and noncitizens in psychiatric institutions.170 As one immigration judge observed, “the major weakness I see is that we are essentially handing over to ICE the duty of determining whether an alien has relief available. . . . In reality, ICE has very signiﬁcant leverage over a pro se [unrepresented by counsel] detained alien. I believe EOIR [Executive Ofﬁce 30 AMERICAN CIVIL LIBERTIES UNION Case: 14-50393, 02/07/2017, ID: 10304776, DktEntry: 43-2, Page 33 of 203 II. WHO IS GETTING DEPORTED WITHOUT A HEARING? O r rather, who isn’t? The overwhelming majority—83 percent—of people deported from the United States today never saw a judge, did not get a hearing, and never had the chance to be heard. But that does not mean that 83 percent of the people deported had no rights to enter and remain in the United States; rather, the summary removal infrastructure rapidly and reﬂexively deported hundreds of thousands of people, including people who are eligible for relief from deportation or who were already in or entering the United States lawfully. in years or decades, separated from young U.S. citizen children or other relatives they were supporting in the United States, and deported without the chance to say goodbye, without money or the opportunity to plan their next steps, and now face years of separation from loved ones. Young children arriving alone and ﬂeeing violence or trafﬁcking have been quickly removed without any inquiry into their situation or concern for what will happen to them. And these are only the stories of people who survived deportation to share their ordeal or eventually returned to the United States and found help. Immigration law is notoriously complex, and a system that requires immigration enforcement ofﬁcers to make complicated legal determinations about an individual’s rights within minutes or hours and without legal training will inevitably allow the deportation of people with rights to enter and remain in the United States. Indeed, we know that it already has, and that U.S. citizens have been deported through these summary processes. Not every case is complicated, however; and in some cases, people In the 136 cases documented by the ACLU through are unjustly deported not because of a misunderstanding interviews and case ﬁle review, the majority were not simply chez coercion, anbut due to2017 intimidation, and about the law , a-S economic migrants coming to the United States for the ﬁrst eralt bruary 2immigration ofﬁcers whose focus P misinformation from v time with no connection to the country. Those deported . e on F USA ed onaccelerating and multiplying deportations comes at the (sometimes repeatedly) without a hearing include longtime in h v expense of basic fairness and people’s lives. Cited 9 children, i residents of the United States with U.S. citizen3 arc 3 asylum seekers escaping—and being -50 returned to—violence, . 14United States on No and people who were lawfully in the visas or working with valid authorization. U.S. citizens have been deported when misidentiﬁed as undocumented individuals and quickly removed without the opportunity to get assistance and prove their citizenship. Families are torn apart when parents or their children are coerced into signing a deportation order despite having claims to be in the United States or when they are automatically expelled at the border after a short trip abroad. Asylum seekers, ﬂeeing immediate persecution and often unable to procure travel documents (not that they would necessarily help them), arrive at the U.S. border seeking sanctuary but instead ﬁnd a detention cell, an expedited removal order, and deportation back to danger. Several individuals interviewed by the ACLU, including but not limited to asylum seekers, were attacked, kidnapped, raped, or robbed after their deportation from the United States. Many were returned to countries they had not seen AMERICAN EXILE: Rapid Deportations That Bypass the Courtroom 31 Case: 14-50393, 02/07/2017, ID: 10304776, DktEntry: 43-2, Page 34 of 203 A. ASYLUM SEEKERS RETURNED TO DANGER “I think it ennobles us as a country, and it also speaks volumes to the rest of the world, when we open our country up to help those in the worst of circumstances. … [O]ur Nation has a long and noble tradition of being a country of refuge. We are the world’s leader in the protection of refugees and asylum seekers, and I am pleased that we are and I want us to continue to be that.” —Former Senator Samuel Brownback178 The United States has a long tradition of providing protection to individuals ﬂeeing persecution and violence. Even contemporary critics of the U.S. asylum system accept this narrative as a valuable American tradition to be preserved.179 Under human rights law, every person has the right to seek asylum from persecution.180 Moreover, international law recognizes the obligation of receiving countries not to return an asylum seeker to a place where they are likely to be persecuted or tortured. The United States ratiﬁed both the Convention Against Torture and the Convention Relating to the Status of Refugees (“Refugee Convention”) and adopted them into domestic law, so that both federal and international human rights law prohibit the expulsion of asylum seekers to places where they face persecution.181 The Refugee Convention further provides that a non-citizen should not be penalized for attempting to enter, without authorization, in order to seek protection,182 and when expedited removal was introduced, in recognition of the U.S. obligation to protect asylum seekers, the statute included a carve-out for asylum seekers who would be referred to an asylum ofﬁcer to be interviewed instead of deported if they claimed fear. Of the 136 cases in this report (which include 11 unaccompanied children), 89 of the individuals interviewed by the ACLU received a summary removal order (expedited removal or reinstatement or voluntary return in the case of unaccompanied minors) within the broad U.S. border zone (i.e., at a port of entry or within 100 miles of thenchez U.S. border).183 Of those individuals, 49 017 -Sa they were never asked about their fear (55rpercent) said ry 2, 2 ta al ua Pe A v. on Febr US ive ed in beenracsymbol d hope and freedom for individuals ﬂeeing persecution and New York, NY. The Statue of Liberty hasCit traditionally a h ofare returned to danger before they have had the opportunity seeking sanctuary in the United States. Today, many3 39 asylum seekers to ask for protection. 4-50 1 No. Spencer Platt/Getty 32 AMERICAN CIVIL LIBERTIES UNION M Case: 14-50393, 02/07/2017, ID: 10304776, DktEntry: 43-2, Page 35 of 203 get review and a second chance. Rather, often they must put themselves in danger and at risk of prosecution and imprisonment by seeking to reenter the United States. This danger is more than theoretical. While some of the individuals interviewed by the ACLU did eventually return and win withholding of removal or CAT (mandatory relief that is more limited than asylum), often they ﬁrst had to experience additional violence in their home country, followed by detention and, in some circumstances, prosecution when they returned to the United States. Fifty-ﬁve percent said they were not asked about fear or persecution of torture. Forty percent who were asked and said they were afraid were ordered deported without seeing an asylum ofﬁcer. of persecution, or that they were not asked anything in a language they understood. 1. Expedited Removal and the Impediments for Asylum Seekers Expedited removal requires that DHS ofﬁcers refer a noncitizen who claims to be afraid of persecution in his or her country of origin for an interview by an asylum ofﬁcer.184 To ensure that individuals are aware of their right to seek asylum, federal regulations require that interviewing ofﬁcers read the following script, in full, at the outset of ez the interview, and state that interpreters shall be used if anch , 2017 a-S necessary185: ary 2 eralt Only 25 (or 28 percent) said they were asked about fear of returning to their country of origin by a border ofﬁcer or agent, and 10 of those individuals (40 percent) said they told the ofﬁcer they were afraid of returning to their country but were nevertheless not referred to an asylumv. P A ofﬁcer. Of the 25 individuals who said they in US were asked d ited on other hive rc about fear, four said they had not C asked 3 a been 9 attempts to come to the United States.503 4- 1 No. Only one of the 11 unaccompanied children (all Mexican) interviewed by the ACLU was asked about fear of returning to his country of origin, and all were quickly returned to Mexico. The remaining 15 individuals (17 percent of the 89 individuals) did not recall speciﬁcally being asked or not asked; in the majority of these cases, their primary reason for coming to the United States was not to seek protection but because of family ties, claims to U.S. citizenship, to visit friends or work on valid visas, or in search of economic opportunities. Two individuals said they did tell border ofﬁcials, of their own initiative, of their fear of returning to their countries. One was referred to an asylum ofﬁcer; the other was not. There is no formal mechanism for an individual unjustly denied a credible fear interview (CFI) and deported to u Febr n Except as I will explain to you, you are not o entitled to a hearing or review. U.S. law provides protection to certain persons who face persecution, harm or torture upon return to their home country. If you fear or have a concern about being removed from the United States or about being sent home, you should tell me so during this interview because you may not have another chance. You will have the opportunity to speak privately and conﬁdentially to another ofﬁcer about your fear or concern. That ofﬁcer will determine if you should remain in the United States and not be removed because of that fear.186 This rights recital, signiﬁcantly, says nothing about the source of the fear—i.e., whether it comes from a governmental or non-governmental actor—nor does it ask DHS ofﬁcers to screen for speciﬁc facts that would trigger an asylum claim. What triggers a referral is intentionally broad and was intended to ensure that asylum seekers could claim and explain their fear to a trained asylum ofﬁcer with specialized knowledge of asylum law.187 AMERICAN EXILE: Rapid Deportations That Bypass the Courtroom 33 Case: 14-50393, 02/07/2017, ID: 10304776, DktEntry: 43-2, Page 36 of 203 2. Language and Information Barriers Yazan S., a 19-year-old from Syria with a congenital heart defect, tried to request asylum but was deported at the airport instead. It is essential that this language is read to all arriving immigrants because most asylum seekers arriving in the United States are unlikely to have a sophisticated or even rudimentary understanding of U.S. asylum law and procedures, and may not even know they exist. As attorney Kaveena Singh observes, “A lot of our clients don’t know they are eligible for asylum when they arrive; they are just trying to escape danger. Some—probably the most deserving—are so traumatized they are reluctant to share their stories, even with us. They aren’t getting an orientation at the border about their rights.”188 Most of the individuals interviewed by the ACLU stated that they were given forms to sign in English, which most did not speak or read, and often were not interviewed by an immigration ofﬁcer who ﬂuently spoke their language or through an interpreter. The asylum protections in place can be activated only when a person is informed of those rights, and the consequences if they waive them, in a language they understand. Because many ofﬁcers may not speak languages other than English ﬂuently, there is a fundamental breakdown in their ability to communicate with individuals about their rights and ask the critical questions about fear of returning. Yazan S., a 19-year-old Syrian with a congenitalPlatt/Gettydefect Spencer heart Images and attention deﬁcit hyperactivity disorder, speaks Arabic and very little English. He came to the United States alone in October 2013 after shelling devastated his neighborhood in Damascus. Shortly after the conﬂict started, his family says, Yazan—who is Christian—was stabbed on the street z his pacemaker; he came to by Islamic extremists, e anch severing017 S 2 theralta-States tory 2, medical care and protection e United brua seek both his uncle in California, . P theFe from violence. En route to SA v d ontransferred through Detroit, where CBP ofﬁcers U Asylum seekers are dependent upon the border n e i ofﬁcials veYazan Citto d 93 archi interrogated him for hours and detained him at a local who arrest, detain, and interrogate them also explain 503 police department overnight. Although Yazan’s uncle their rights and refer them to an asylum. 14 ofﬁcer. In many No others, border ofﬁcers Manaf hired a lawyer, DHS ofﬁcials refused to let either the cases documented by the ACLU and attorney or Manaf speak with Yazan. A CBP ofﬁcer did call are not providing necessary information in the language Manaf to conﬁrm Yazan’s identity: “I repeatedly asked to spoken by the asylum seeker—if at all—and sometimes fail speak to my nephew. Finally the agent just hung up on me. to refer individuals for a CFI even when those individuals I called back [and] I told them, this guy has been through are able to articulate a fear of returning to danger.189 For a lot of trauma. . . . The ofﬁcer said to me, ‘You guys come asylum seekers who may be traumatized from the harm here and take advantage of our system.’” Yazan told his they ﬂed, their dangerous journey, and ﬁnally, arrival into a uncle that six ofﬁcers were standing around him, telling detention center, claiming and adequately communicating him to sign a form and that they would not provide him that fear of being removed may be extremely challenging. with an interpreter or the chance to call his uncle until he But it is not only reticence or post-traumatic stress signed. In his limited English, Yazan tried to tell ofﬁcers that prevents individuals who risked their lives to seek that he was afraid to return to Syria but was nevertheless protection from asking for asylum: systemic failures and, in deported through expedited removal.190 some instances, abuse and coercion by the screening border ofﬁcer prevent some asylum seekers from ever requesting Hilda, a 35-year-old from Honduras, ﬂed death threats assistance when they reach the United States. from gangs and domestic violence perpetrated by her husband. In 2013, after a severe beating, Hilda miscarried the twins she was pregnant with and ﬂed to the United States, still bleeding daily. “We never want to return,” says 34 AMERICAN CIVIL LIBERTIES UNION Case: 14-50393, 02/07/2017, ID: 10304776, DktEntry: 43-2, Page 37 of 203 Hilda and both her children were given expedited removal orders, and Hilda says they were never asked about fear of returning to Honduras.192 Spencer Platt/Getty A woman and her child walk past gang grafﬁti in a neighborhood with heavy gang violence on July 20, 2012, in Tegucigalpa, Honduras. Honduras now has the highest per capita murder rate in the world and its capital city, Tegucigalpa, is plagued by violence, poverty, homelessness, and sexual assaults. Ana N. R., a 47-year-old from El Salvador with two U.S. citizen kids, had gone back to El Salvador to see family when a gang burned down her family’s beauty salon and raped an employee. Her children were going to petition for her to join them in the United States, but given the danger, she could not wait. Arriving in McAllen, Texas, in March 2014, Ana said the ofﬁcers asked about her fear of being returned but said if she claimed fear, she would be detained for a year: I said I would prefer one year ez Hilda. “All you’re going to ﬁnd in Honduras is death.” She in jail alivechdeath. They 7 an to , 201wanted me to sign a-S after ry 2 took her two-year-old and 14-year-old children with her, a I The ofﬁcer said “Sign or I’m eraltpapers rusign.told them about my fear. But Igoing P wouldn’t v. arriving in Texas in November 2013. “I was caught crossing Feb USA ed on to sign for you.” They slammed the door in my in the river,” recalls Hilda: v Cited 93 archi face because I wouldn’t sign. The papers were 503 my kids in English. I asked what they were for and said I It was 8 p.m. at night. They took- and 14 me No. would sign if they were in Spanish. I saw people to a cell. . . . They started to ask us to sign a lot of papers. The problem was I didn’t understand anything he was asking me. Since he saw that I didn’t understand, [the ofﬁcer] would just write and write and just tell me, “Sign.” … He would just put [the form] in front of me and say “Sign, next one, sign.” . . . I was bleeding when I arrived. I was afraid [to ask for help]. Everyone there was afraid. [The ofﬁcers] don’t let you even talk to them. . . . The fear they instill in you doesn’t let you ask for help. . . . I needed help and it just felt horrible to be rejected like that.191 “All you’re going to ﬁnd in Honduras is death.” saying no, they wouldn’t sign, and the ofﬁcers just signed for them. They called us pigs and said we smelled like ﬁsh. There were 10 kids lying on the ﬂoor. They would insult us all the time. I thought, maybe this isn’t the U.S. Maybe this is Cuba. After all the years I spent in the U.S., I had such a good impression of it. I was really shocked.193 Carlos C. Z., an asylum seeker from El Salvador, was moved from hielera (“icebox,” a term commonly used to refer to CBP holding cells) to hielera when he ﬁrst arrived in the United States. He came to the United States ﬂeeing violence from the Mara Salvatrucha gang (“MS-13”), which left him with scarring and deformed ﬁngers. Although he told a Spanish-speaking ofﬁcer by phone at the ﬁrst holding facility that he was afraid to go back to El Salvador, Carlos says that another ofﬁcer who spoke very little Spanish then came into the room and gave him forms to sign. Carlos does AMERICAN EXILE: Rapid Deportations That Bypass the Courtroom 35 Case: 14-50393, 02/07/2017, ID: 10304776, DktEntry: 43-2, Page 38 of 203 Hieleras—“Ice Boxes” I n many cases, individuals are afraid to talk to CBP ofﬁcers because of the conditions in which they are held. An investigation by Americans for Immigrant Justice found that individuals apprehended by CBP were held for up to 13 days in freezing cells with no blankets, little food, no showers, no privacy for using the restroom, and little space.197 Almost everyone interviewed by the ACLU described inhumane detention conditions while in CBP custody, citing verbal abuse, freezing conditions, inadequate food, lack of adequate medical care, and overcrowding. For some individuals ﬂeeing violence, the experience of being detained and in inhumane conditions is traumatizing, and as a result, some individuals with strong asylum claims nevertheless decide to abandon them and accept deportation rather than remain in detention. For individuals who do not know about the asylum process, it may not occur to them to raise their fear if they are never asked. Ponchita, a 33-year-old woman from Mexico, said she was not asked and did not mention the domestic violence she was ﬂeeing because “in Mexico we are just used to no one asking about it.”199 Many asylum seekers interviewed for this report said they were unaware of the existence of asylum; generally, the only individuals who were aware of the right to apply for asylum were persons who, after receiving an expedited removal order from CBP, were taken to an ICE facility to await a plane to take them back to their country of origin. While in detention, they learned for the ﬁrst time from ICE ofﬁcers, legal services organizations, and sometimes other detainees about the existence of the asylum process. Many individuals told the ACLU that the only information CBP ofﬁcers gave them was that they would be detained a long time—and probably deported anyway—unless they immediately signed a removal order. Moreover, many said z the environment in he they were detained suggested anc which, 2017 S that alta- no rights. 2 ry r they had not read or speak English and refused to sign the forms.194 At that point, as detailed in Carlos’s declaration, the ofﬁcer ua Pe A v. on Febr became angry and “slapped [Carlos] across the faceUS the with Few in to ed people recalled CBP ever telling them of the existence forms. At that point, [Carlos] asked toCited a judge, rchiv speak to of asylum, but several were given misinformation by CBP 3a which he recalls the ofﬁcer replied, ‘Here, I’m the judge, the 5039 ofﬁcials. Nydia R., a transgender woman from Mexico, 4attorney, and the one who is going . 1 No to deport you.’ A different said she told border ofﬁcials that she had been attacked ofﬁcer then wrote on every page of the forms that [Carlos] in Mexico and wanted help, but she was not referred for a refused to sign. [Carlos] did not learn what the form stated CFI; she later successfully entered the United States without until another immigrant translated it for him at a different being apprehended, applied for and was granted asylum. 195 “I didn’t know the immigration agents could have helped detention facility in Pennsylvania weeks later.” me,” Nydia said, recalling her previous attempts to enter the United States. “They had known all the reasons I was trying At seven years old, Karen R. L., now a 21-year-old from El to come back to the U.S. and even knowing them, they sent Salvador, was coerced into joining the gang that murdered me back.”200 her mother; the gang members, Karen said, “told me I had to ﬁnish paying the accounts of my mom.”196 When she tried to leave the gang, she says, she was sexually assaulted by gang members and threatened with death. Arriving in South Texas, Karen recalls, the ofﬁcers initially gave her forms to sign in English: “I started asking what they were but [the ofﬁcers] just said, ‘Sign here, sign here,’ really loudly. When I found out what I was signing, I said, ‘But I’m afraid and I can’t go back to my country.’”198 Karen was ﬁnally given a CFI, which she passed. 36 AMERICAN CIVIL LIBERTIES UNION Cesar, who had been in the United States for 14 years when he was arrested by CBP, says he was not asked anything about his fear of returning to Mexico: “They didn’t ask me anything. They were just mocking me. They asked why would I come into their land. I was trying to explain that there is a lot of violence in Mexico, and I don’t want to die. . . . I asked to call my family, my sister or my wife, but they said they only give Central Americans, the elderly and kids that privilege.” Cesar was deported to Reynosa, where he Case: 14-50393, 02/07/2017, ID: 10304776, DktEntry: 43-2, Page 39 of 203 still has some family: “I didn’t last long because there were a lot of shootings.”201 Felipe R., a 32-year-old Mexican, left the United States and his two U.S. citizen children to attend his father’s funeral in Michoacán, Mexico, where he was kidnapped and held for ransom. He escaped and was caught by border ofﬁcers when he attempted to reenter the United States in Laredo, Texas. Although he told the ofﬁcers what had happened, Felipe said, “Border Patrol said I didn’t have the right to claim asylum because the U.S. doesn’t give asylum to Mexicans.” He has tried multiple times to return to his children but says he has never been asked about fear of returning to Mexico.202 the United States, was issued an expedited removal order when she arrived at the U.S. border after being attacked and raped by a gang; the gang had also tried to cut out her breast implants, and the wounds were fresh when she explained her story to CBP. CBP nevertheless deported her. Nydia returned, and although DHS records available to and in fact procured by the ofﬁcers showed she had asylum status, DHS ofﬁcers reinstated her removal order and deported her once again. In Mexico, she was raped, kidnapped by Los Zetas, and repeatedly attacked by gangs and other men because of her transgender status until she could return, without inspection, to the United States.205 Roberto Lopez-Gutierrez, a Mexican national, was kidnapped in Mexico and held for ransom in caves on the U.S.-Mexico border; when he escaped, he was arrested by CBP and referred for illegal entry prosecution. Although the CBP agent did ask if he was afraid of returning to Mexico and he said yes, the agent wrote that he said no, While the majority of individuals interviewed by the explaining in subsequent testimony that she wrote he ACLU said they were never asked about their fear of being had no fear because “he was afraid of kidnappers, not of deported, some did attempt to tell border ofﬁcials that they government nchez 206 17 agent later admitted in apersecution.” The were in danger and needed assistance, but they were still courta-S that she was t testimony ry 2, 20 not trained in asylum law l not referred to an asylum ofﬁcer. Pera that the ua r regulation was silent on whether the violence v. and eb USA ed on F to come from the government for a person to needed in The regulation requiring border Cited rchiv a ofﬁcers to refer a person to an asylum 0393 5 ofﬁcer if they fear persecution . 14 Noor torture if returned to their country says nothing about the identity of the perpetrator; however, our interviews and a recently leaked UNHCR report indicate some border ofﬁcers incorrectly think that violence from non-state actors, such as gangs or a family member, can never be the basis of an asylum claim and refuse to refer these asylum seekers for an interview.203 In fact, if a government is unable or unwilling to protect an individual who otherwise satisﬁes the eligibility requirements for asylum, a perpetrator’s non-state identity does not foreclose asylum.204 3. Failure to Refer Asylum Seekers to an Asylum Ofﬁcer Nydia R., a transgender woman who had already been granted asylum in After being attacked by a gang in Mexico, Nydia returned to the United States, where she had asylum status. Immigration ofﬁcers ordered her deported. AMERICAN EXILE: Rapid Deportations That Bypass the Courtroom 37 Case: 14-50393, 02/07/2017, ID: 10304776, DktEntry: 43-2, Page 40 of 203 be referred for an asylum interview;207 nevertheless, she excluded all of Mr. Lopez-Gutierrez’s statements about the kidnapping from his sworn statement.208 Similarly, Telma M. did explain her fear of being deported, which was recorded by CBP ofﬁcers in her sworn statement, but the question she recalls being asked was, “Are you afraid of your government?” to which she says she responded, “No, not the government, but I am afraid of my husband back in El Salvador.”209 Although she may be eligible for asylum based on domestic violence,210 Telma was issued an expedited removal order and transferred from Texas to the Broward Transitional Center in Florida to be deported. “The ofﬁcer ﬁlled out a form and asked me to sign, but I refused. … They grabbed my ﬁngers and pushed them on the paper.” detention facility in Taylor, Texas, Bessy says she felt she had made a mistake.213 Lucila O. ﬂed domestic violence in Nicaragua and was arrested by Border Patrol agents in Texas: “I told them I was afraid. . . . [The agent] just told me, ‘You are getting deported. . . . Even if you are afraid you are going to get deported.”214 Ericka E. F., a 33-year-old woman from Honduras, ﬂed gang violence and sexual and physical violence from her chez and was arrested in Texas: “I Juan Manuel C., from El Salvador, says he told CBP ofﬁcers 1 an partner them7 a Laredo and I 2, 20 I needed asylum. I crossedtin -S he was afraid to return to El Salvador, where he had been y told al ar er needed to ebru to protect myself. . . . I told him I was a victim of gang extortion, but they did not refer him for a v. P Fstay here A n CFI: “They didn’t care; they said it was my country, I had ved o for protection because of the violence. They said n US ed iexpedited hi ﬂeeing always come here with lies. I told them it was true. Cit women to go.” Instead, they told him he had to sign an 3 arc 39 50a judge: “I [The ofﬁcer] just laughed and laughed.”215 removal order even though he wanted4- see to o. 1 me I would be in N didn’t want to sign. But then they told Braulia A., a Guatemalan national and mother of four U.S. jail from 18 months to 5 years.” After his deportation to El citizen children, was arrested by CBP ofﬁcers at San Ysidro Salvador, gangs began to demand money from him: “The after she brieﬂy left the United States. She told ofﬁcers that Mara Salvatrucha were charging me $500 a month; they she was afraid to be deported to Guatemala, where her took $7,000. They send you three notes and on the third father had been murdered and her mother was the target time they kill you or your family. People have been killed 211 of extortion by gangs. According to Braulia, “The ofﬁcers right in front of my house.” said, ‘We don’t care if you are killed there. Don’t even think Bessy M., a 34-year-old woman from Honduras, came about coming back or we will put you in jail for a long time.’ to the United States after her husband was murdered by They just said, ‘You don’t have a right to anything, you are her brother-in-law. She tried repeatedly to tell the border a criminal, you are worthless.’” Although Braulia told them ofﬁcers she was afraid to return to Honduras, but she was she was illiterate, they forced her to initial that she had read issued an expedited removal order. By the time she was the interview, which incorrectly stated that Braulia did not transferred to Port Isabel, a detention center in South claim fear. She refused to sign the expedited removal order Texas, Bessy said, she retracted her statements, even though but was deported to Guatemala, where she was subsequently she was ﬁnally referred for a CFI: “I said I wasn’t afraid raped and shot by a gang; her son, who joined her in because I was scared of saying yes. Everyone said I would be Guatemala, was murdered by the same gang.216 in jail for a long time.”212 But while waiting for deportation at the T. Don Hutto Residential Center, an immigration The experience of being interrogated can be intimidating, In other circumstances, CBP ofﬁcers simply reject individuals’ statements regarding fear, perhaps because they do not believe the individuals, but CBP ofﬁcers are not trained to determine credibility or to assess whether a speciﬁc experience meets international protection standards. 38 AMERICAN CIVIL LIBERTIES UNION Case: 14-50393, 02/07/2017, ID: 10304776, DktEntry: 43-2, Page 41 of 203 and the environment in which these interviews are conducted suggests to the asylum seeker that he or she has no rights. In its recent report, Human Rights First observed that CBP interviews with asylum seekers were sometimes conducted in crowded and loud rooms with no privacy.217 Wendy, a 26-year-old woman from Honduras who had lived in the United States for almost a decade, recalled, “There were a lot of ofﬁcers in a big line with all the ofﬁcers around you. They did ask about fear but when I said yes, they said, ‘You all say the same thing. I don’t know why you guys say you are afraid. That is your country. This is not your home.’”218 Rosa, a 22-year-old woman, ﬂed domestic violence in El Salvador and was arrested by border ofﬁcials when crossing into Texas. Although she was asked about fear, she was never referred to an asylum ofﬁcer: ICE said I had no reason to complain because I was already being deported. I was asked to sign forms my ﬁrst day. I found out later it was my deportation order. The form was in English. … At that time, they didn’t give us the opportunity to ask any questions.219 A Maria, Marian, Rosemarie, and their brother. ez 17 anch , Although all three were caught by Border Patrol agents. 20 ta-S ary 2 ral day and v. Pe the same bru came with the same claim, they had very Fe different US d on experiences. Maria was the only one asked about in h ve her fear of being deported and referred for a credible fear Cited 93 ar andi After her deportation, Rosa’s ex-boyfriend found her, c 3 interview: “I said yes [I was afraid], and he was just writing. the harassment and abuse continued. -50 4 She returned . 1asked about fearto the onot He asked me to sign if I wanted to sign. I said no. The United States and says she N was when she was caught by CBP again in South Texas. “They just gave me some forms to sign, but I refused.”220 She was eventually allowed to get a credible fear interview, which she passed. Too often, whether an asylum seeker is given a credible fear interview or, instead, deported with an expedited removal order is a matter of chance that depends on the particular ofﬁcer. Because expedited removal orders are often issued quickly, with limited internal review and with little supporting evidence required, an asylum seeker can be erroneously deported without any opportunity—in the moment or later on—to challenge this deportation order. Maria, Marian, and Rosemarie, three sisters from El Salvador, ﬂed extortion and threats by gangs in El Salvador and came to the United States to join their brother (who has Temporary Protected Status) in May 2013. After crossing the Rio Grande into Texas, the sisters were caught form was in English but I think it was to throw me back to El Salvador.”221 Her sisters had very different experiences. Marian recalls, “They did not ask me any questions. They just took my ID. The ofﬁcer ﬁlled out a form and asked me to sign, but I refused. He was very angry because I wouldn’t sign. He stood up, pulled me up, and they grabbed my ﬁngers and pushed them on the paper.”222 Rosemarie spoke with a Border Patrol agent who spoke Spanish, and she tried to ask for help, but when she explained why she was afraid, she was told “those are old stories”: They didn’t ask me any questions, just my name and where I was from. I said to the ofﬁcial, “What are the possibilities for us to stay if we hire an attorney because I was afraid of going back.” He said that’s what everyone says and there is no possibility for us because there are already too many people inside the U.S. He said they don’t AMERICAN EXILE: Rapid Deportations That Bypass the Courtroom 39 Case: 14-50393, 02/07/2017, ID: 10304776, DktEntry: 43-2, Page 42 of 203 give permits anymore—they used to but no longer… I asked to make a call to my brother because I was afraid of going back and he said no because we were going to be deported. . . . They said if I didn’t sign [the expedited removal order] they would grab me and make me sign. I just put one ﬁngerprint down then.223 Even Maria was not told at ﬁrst that she would be allowed to seek asylum, so all three spent days in detention, sleeping Reynosa, Mexico, April 2014. A migrant shelter providing services primarily to Central American migrants heading on the ﬂoor in a crowded cell and certain they would toward or being deported from the United States. Migrants and be deported. Ultimately, Maria was issued a Notice to recent deportees are targets for kidnapping and theft by local Appear and released on an order of supervision to report drug cartels and gangs. to ICE near her brothers’ home in Florida. Maria has since won her immigration case before a judge. Marian would be deported.226 Through advocacy with DHS, his and Rosemarie were also given orders of supervision attorney, Jacqueline Bradley Chacon, was ﬁnally able to get and allowed to join their brother. However, Marian and him referred for a credible fear interview, which he passed. Rosemarie currently have no way of afﬁrmatively applying Had he been deported to Honduras, Ms. Bradley Chacon for asylum, as they were issued deportation orders and not says, “He [would] be killed, I have no doubt.”227 referred for an asylum interview. For now, they are hoping they will not be deported back to danger and can stay ez together. If deported back to El Salvador, Rosemarie said, anch , 2017 a-S they would be in even more danger than when they left and eralt bruary 2 would try to return to safety in the United States: “SinceA v. P Fe For asylum US d on seekers whom the system fails, and who receive they made us pay that ‘rent,’ if we were to go back, we in ve Cited 93 archi an expedited removal order instead of a credible fear would have a bill. Since we left, they don’t like it. Whoever interview, the consequences are immense: these individuals 03 doesn’t pay, they kill them. We know people who’ve been 14-5 .that the gangs were o can be deported to danger,228 and if they try again to get N killed. One girl said [to the police] protection in the United States, they can be prosecuted for threatening her, and 10 minutes after telling the police she illegal reentry and placed in reinstatement proceedings. was dead.”224 Several of the individuals interviewed by the ACLU experienced all three. Milton, a government electrician in Honduras, came to the 4. Asylum Seekers with Prior Removal Orders United States after gang members repeatedly threatened to kill him and his family in revenge for a motor accident he was in that left the other individual, who was associated with the gang, disabled. Although he moved repeatedly within Honduras, nevertheless the gang repeatedly found him. Milton was not referred for a CFI by border ofﬁcials but was issued an expedited removal order and released into the United States on an order of supervision; his attorney believes this is because he was with his young daughter.225 When he checked in with ICE, he once again expressed his fear of returning to Honduras; the ICE ofﬁcer, instead of referring him to an asylum ofﬁcer, incorrectly told him that it was his responsibility to get proof that he had had a credible fear interview or else he 40 AMERICAN CIVIL LIBERTIES UNION For individuals who are able to eventually get before an immigration judge, the impact of the prior removal order and CBP’s written recording that they had no fear continues to have consequences. Although the concern over border ofﬁcials not asking about fear or misrecording the answer is not new and was documented in the 2005 USCIRF report, some judges and asylum ofﬁcers nevertheless assume that these ofﬁcers are asking the required questions in a way the asylum seeker understands. As one attorney noted, when an asylum seeker’s sworn statement records that he or she has no fear, it can be used against him or her in court: “In one such case, I had a client with a strong gender-based claim for relief. Both the DHS Case: 14-50393, 02/07/2017, ID: 10304776, DktEntry: 43-2, Page 43 of 203 trial attorney and the immigration judge raised insistent concerns over my client’s credibility, largely based on her alleged statements in her border interview that she was not afraid of returning to her home country. She stated that she had never been asked by authorities if she had a fear of return. These comments seemed to have been added into her ﬁle without her knowledge or consent, yet they plagued her for the rest of her case.”229 Before winning relief under the Convention Against Torture, Braulia A. struggled to explain to the judge why she would sign a statement claiming she had no fear if that was incorrect, and the court was resistant to ﬁnding that the Border Patrol agent had lied. Eventually, given the weight of the evidence that Braulia had experienced extreme violence in Guatemala, the judge found in her favor without opining on whether she or the border ofﬁcial was more credible. Similarly, Ana D. eventually got an interview with an asylum ofﬁcer while waiting for her removal—after CBP had already issued an expedited removal order and written that she had no fear. The asylum ofﬁcer questioned her as to why CBP would say that: Moreover, immigrants seeking protection while in reinstatement proceedings (i.e., because they have a prior removal order) are likely to be detained for a long period of time. For years, advocates have been concerned about the delays immigrants face in getting an interview with an asylum ofﬁcer and then getting their decision, and in April 2014, the ACLU and partners ﬁled a lawsuit challenging the extensive delays in receiving a “reasonable fear” interview, delays resulting in many months of detention for asylum seekers with a prior removal order or a particular criminal conviction.232 Under federal regulations, individuals with a “reasonable fear” of persecution or torture must be referred to an asylum ofﬁcer to be interviewed and receive a decision within 10 days.233 In fact, however, individuals subject to reinstatement awaiting a reasonable fear interview will wait in detention an average of 111 days.234 Alejandro ﬁrst came to the United States in 1995, when he was a teenager, ﬂeeing gang violence in El Salvador. He was twice summarily deported without the chance to apply for asylum. Once back in El Salvador, he says he was threatened ez by gang members constantly,17 anch , 20 despite moving to different a-S locations. Finally, y threats to his wife and eralt toormuch:the2 said, ‘We are going daughter uar “They to hit you Q: “Did you ever tell an immigration ofﬁcer A v. P becameeb F US d on it hurts and take what you value.’”235 The family ﬂed in anything different?” ve where Cited 93 archi and settled in New Jersey. Eight years later, he was arrested 03 5telling you now.” by police when having an argument with his wife; ICE A: “I told him the same thing I41 am No. arrived and picked him up from jail. While in immigration Q: “Why did you think he wrote that you had no detention, Alejandro asked to see a judge: “The ofﬁcer fear?” tried to force me to sign a deportation order but because I understood English, I refused to sign it. When I refused to A: “I don’t know.”230 sign it, the ofﬁcer tried to force me to put my ﬁngerprint. He said, ‘You have no chance, you’re getting deported.’”236 At a substantive level, the same beneﬁts and protections Fortunately, he was referred to an asylum ofﬁcer prior are simply not available for an asylum seeker with a prior to being deported, but he then spent four months in deportation order who has been removed. This is true detention before he was able to see a judge and be released even if the only reason they have a deportation order on bond; his case is ongoing.237 is the failure of CBP to inquire into fear or to refer an individual who claims fear for an asylum interview. As Luis B. R., a 28-year-old gay man from Guatemala, acknowledged by the Asylum Ofﬁce of USCIS, the standard experienced sexual and physical violence throughout his for “reasonable fear” is higher than the standard of proof childhood, including from a police ofﬁcer, because of his 231 required to establish a “credible fear” of persecution, sexual orientation. He eventually ﬂed to the United States so individuals who might have met the lower threshold but was arrested, detained for three months, and given showing in a credible fear interview may have more some papers to sign (which appear to be an expedited difﬁculty passing a reasonable fear interview—even when removal order) before being deported back to Guatemala; the facts (on which the claim is based) are identical. he does not recall ever being asked about his fear of AMERICAN EXILE: Rapid Deportations That Bypass the Courtroom 41 Case: 14-50393, 02/07/2017, ID: 10304776, DktEntry: 43-2, Page 44 of 203 because Hermalinda’s mother was ill. Thinking the security situation had improved, Hermalinda decided to stay in Guatemala, and she and her husband had a second daughter. Hermalinda and her husband were both politically active in the opposition party and, in particular, in challenging mining companies’ extraction activities. Their activism put them in danger, however. Hermalinda recalls, “On the 5th of March, 2011, about four men came to our house and beat us. Two were police ofﬁcers and two were dressed in civilian clothes. They beat us and took us 30 minutes by car. Then they made us get out of the car and they beat us more. They took off my clothes and they raped me.”241 Hermalinda and her husband again ﬂed to the United States, but were caught by Border Patrol at returning to Guatemala. After his deportation, the fear, San Ysidro. The ofﬁcers did not ask if she was afraid of threats, and attacks continued, so he returned to the United returning to Guatemala: “They didn’t give me any papers States and was able to enter without inspection. A few years [to sign]. They just put my ﬁnger down like this,” said later, however, after being assaulted by his then-boyfriend, Hermalinda, motioning to show her thumb being pushed Luis was arrested by the police, even though he was not on a table.242 Hermalinda did not know that the papers the perpetrator. The police then turned Luis over to ICE. were an expedited removal order; she found out what they Luis then spent six months in detention before eventually were years later, when she applied for asylum in the United winning his case with the assistance of pro bono counsel. z States and went nche 17 a to her interview, where she was met by ICE. ta-S wasrnot2, 20 but because she is in Fortunately, she y detained, Finally, a person who wins withholding of removal or CAT ral v. Pe n Februa reinstatement proceedings, even if she wins her case when relief will not receive the same beneﬁts as a person who A o US the wins asylum, such as the right to petition ed in his or herived time comes (her hearing is set for 2017), she will not be to bring it rch able to bring her daughters to the United States. C family to the United States, to travel internationally, and to 93 a The distinction between who can and cannot access the full range of protections and beneﬁts of asylum is not supported by international or domestic law. 03 -5 eventually become a lawful permanent resident and a U.S. o. 14 still be removed N citizen.238 Moreover, that individual may to a third country, even if he or she cannot be deported to his or her country of origin.239 For asylum seekers who are in reinstatement only because U.S. immigration ofﬁcers incorrectly deported them when they ﬁrst sought refuge, this distinction feels particularly undeserved and punitive. But for all asylum seekers, the distinction between who can and cannot access the full range of protections and beneﬁts of asylum is not supported by international or domestic law. While advocates are challenging this unjustiﬁed and damaging distinction, for most people who can currently only access safeguards through reinstatement proceedings, many critical protections are foreclosed.240 Hermalinda L. and her husband, both indigenous Guatemalans, ﬂed political violence and sought protection in the United States in 2006, leaving their daughter with family. They were able to enter the United States without inspection, but in 2008, they returned to Guatemala 42 AMERICAN CIVIL LIBERTIES UNION * * * The failure to refer asylum seekers for an interview during which they can explain their fears is not new. Even before expedited removal was expanded geographically, the U.S. government was aware that the expedited removal process was resulting in the deportation of asylum seekers before they had the opportunity to be heard and seek protection. In 2004, Congress commissioned the United States Commission on International Religious Freedom (USCIRF) to conduct a study on asylum seekers in expedited removal.243 The study, which included ﬁrst-hand monitoring of CBP interviews at ports of entry, evaluated whether asylum seekers at ports of entry were in fact able to claim the protections intended for asylum seekers. The report found “serious implementing ﬂaws which place asylum seekers at risk of being returned from the U.S. to countries where they may face persecution.”244 Case: 14-50393, 02/07/2017, ID: 10304776, DktEntry: 43-2, Page 45 of 203 In particular, the study found the following: and for its failure to ensure the recommendations were implemented before expedited removal was expanded.248 1. In 50 percent of expedited removal interviews observed by USCIRF researchers, arriving non-citizens were not informed they could ask for protection if they feared being returned to their home country; 2. In 72 percent of cases observed, individuals signed the sworn statement drafted by the immigration ofﬁcer, which they were supposed to review and correct, without being given any opportunity to review it; 3. These sworn statements were not verbatim and sometimes included incorrect or made-up information; and, 4. In 15 percent of observed interviews, a person who expressed a fear of returning was nonetheless deported without a referral to an asylum ofﬁcer; in 50 percent of those interviews, the ﬁles even stated that the person had claimed fear and yet the referral did not take place.245 Almost a decade later, none of these systemic failures have been corrected, nor have USCIRF’s recommendations been adopted. Indeed, it is likely that problems with the process have only increased with the expansion of expedited removal across the entire border, as today even more people are arrested, detained, interviewed, and removed through this process without the opportunity for independent review. Non-governmental organizations continue to document problems with the credible fear process, including failure by border ofﬁcers to ask about fear and refer individuals to credible fear interviews.249 And yet, in 2013 and 2014, congressional hearings—in their titles if not in the testimony—have suggested that the asylum process is too lax and ripe for manipulation by non-citizens.250 The allegation that this system is easily manipulated is not supported by fact, and indeed, agency ofﬁcials are z conﬁdent that chetools for detecting fraud are effective.251 antheir Rights 017report detailed at length, Notably, these are ﬁndings based on interviews between As atrecent Human 2, 2 First l a-S ary immigration ofﬁcers and non-citizens that took place in Pera . there are bru investigative the physical presence of a USCIRF researcher, with the SA v d on Fe already numerousto punish and and prosecutorial U resources that can be used deter fraud in in full knowledge of the interviewing immigration ofﬁcer. ive Cited to 3 arch the asylum system,252 and CBP and ICE ofﬁcers are not And yet, this monitoring was not sufﬁcient 9ensure -503 concerned that their existing tools are insufﬁcient or could that immigration ofﬁcers followed 4 regulations. In . 1 the Nocard on DHS’s progress in be manipulated.253 Moreover, any individual who is found 2007, USCIRF issued a report to have made a fraudulent claim for asylum is not only addressing the failures identiﬁed by the report, noting that barred from receiving asylum but can also be prosecuted [T]wo years later, most of the Study’s and imprisoned and is permanently barred from receiving recommendations have not been implemented. any immigration relief in the future.254 The Commission’s overarching recommendation was that Expedited Removal not be expanded Finally, even if some individuals may be fraudulently or just until the serious problems identiﬁed by incorrectly applying for asylum, it does not appear that the the Study—which place vulnerable asylum majority of people attempting to enter the United States seekers at risk—were resolved. Despite this are trying to manipulate the asylum system. The actual recommendation, and the failure to resolve the number of individuals referred for a CFI at the border problems cited in the study, DHS has in fact remains relatively small, with estimates that between 5 expanded Expedited Removal from a port-ofand 15 percent of individuals subject to expedited removal entry program to one that covers the entire land in FY 2013 expressed a fear of return and were placed in and sea border of the United States.246 the credible fear screening process.255 The journey to the United States is fraught with incredible dangers;256 given The Commission gave CBP a score of “F” for its failure how well-known these dangers are, it is not a journey to apply the study’s recommendations on protections 247 someone would undertake lightly. for asylum seekers to ensure procedures were followed AMERICAN EXILE: Rapid Deportations That Bypass the Courtroom 43 Case: 14-50393, 02/07/2017, ID: 10304776, DktEntry: 43-2, Page 46 of 203 B. PEOPLE LAWFULLY IN THE UNITED STATES WHO ARE DEPORTED WITHOUT A HEARING work or study visas, lawful permanent residence, or other nonimmigrant visas have been deported without a hearing, sometimes in a matter of minutes, resulting in separation from family, unemployment, and signiﬁcant difﬁculties in ever returning. 1. U.S. Citizens Deported Through Summary Procedures Summary removal procedures are not supposed to apply to people with the right to be in the United States—for example, U.S. citizens, lawful permanent residents (LPRs), or individuals with asylum status. Despite the expansion “To deport one who so claims to be a citizen of these processes geographically and numerically, the obviously deprives him of liberty ... [and may] U.S. government maintains that these processes are meant result also in loss of both property and life, or to speed the deportations of people who are unlawfully of all that makes life worth living. Against the entering the United States. For example, Congressional danger of such deprivation without the sanction and Administration statements in support of deportations afforded by judicial proceedings, the Fifth without a hearing (as well as the new “expedited hearings” Amendment affords protection in its guarantee of taking place along the southern U.S. border) take for due process of law.” granted that they are applied to newcomers who are —Justice Louis D. Brandeis, unlawfully entering the United States and have no right to Ng Fung Ho v. White, 259 U.S. 276, 284 (1922). enter or remain here.257 However, due to coercion at the ez border, the absence of rigorous screening, and, in some Given the intimidating and militarized environment anchalong the border, combined with 017 cases, governmental misconduct, individuals lawfully at ports a-entry and y 2, 2 t of S ar ral residing in the United States have been deported without v. Pe apparentbru of training for CBP ofﬁcers and the the e lack USA ed on F of immigration law, it is inevitable that people seeing a judge or even the chance to call an attorney. As complexity d in iv who have status, including U.S. citizens, will be illegally a result of these rapid and hazardous Cite processes, severalrch a 93 to the U.S. citizens have been deported and able503 deported by border ofﬁcers and agents. Attorney Jaime - to return o. 14 United States only after advocacy and legal representation. Díez, who practices immigration law in Brownsville, Texas, N says he routinely sees individuals who are U.S. citizens, A U.S. citizen, LPR, or asylee may at least seek judicial or eligible for U.S. citizenship, who are deported by CBP. review of his or her deportation, although sometimes with Some ofﬁcers, he observes, “have stereotypes of who a U.S. considerable expense and difﬁculty, and perhaps have only citizen is. They assume people who don’t speak English a period of banishment from the United States. That U.S. can’t be a U.S. citizen. These ofﬁcers don’t understand the citizens can be—and have been—deported from the United States by an immigration ofﬁcer should not be surprising: while some U.S. citizens have been deported despite having veriﬁable evidence of their status, other citizenship cases involve complicated legal analysis and factual investigation. Summary removal procedures like expedited removal are not equipped for this intensive analysis, and given their speed, the absence of legal assistance, and the relative secrecy of these proceedings, are likely to result in erroneous deportations. But U.S. citizens are not the only individuals who can lawfully work and live in the United States and who have been erroneously subjected to summary removal proceedings. People with valid Some people are automatically U.S. citizens even when they were not born in the United States. As of 2010, around 2.5 million U.S. citizens were born abroad. 44 AMERICAN CIVIL LIBERTIES UNION Case: 14-50393, 02/07/2017, ID: 10304776, DktEntry: 43-2, Page 47 of 203 John Moore/Getty Dominican immigrant Roberto Mercer holds his daughter Gianela, 10 months, at a special Valentine’s Day naturalization ceremony for married couples on February 14, 2013, in Tampa, Florida. ez anch , 2017 a-S ry these eralt bruin both2 cases, citizenship is conferred reality of the border. . . . What I see all the time is peoplev. P observes that a e F A ton who shouldn’t be removed getting removed.” US in ed o the child upon birth “by operation of law, even if the v individual is unaware of their U.S. citizenship status or Cited 93 archi lacks documentary proof of it.” For these individuals, Identifying citizens is, at once, a simple and a complex 503 . 14proving their citizenship when stopped by immigration o issue. Legal scholar Jennifer Koh Lee explains that while N 258 263 the citizen/non-citizen distinction appears straightforward, in fact, that fundamental line is sometimes “unclear and unresolved.”259 Similarly, legal scholar Rachel Rosenbloom observes, “Although most citizenship claims are easily documented, there remain many U.S. citizens who have a tenuous evidentiary hold on their status.”260 U.S. citizens are not required to “register” in a national database, and most of us do not carry our birth certiﬁcates or other proof of U.S. citizenship on our person. Moreover, some people are automatically U.S. citizens by law under “acquired citizenship” without being born in the United States. As of 2010, there are approximately 2.5 million U.S. residents who appear to have acquired citizenship when born abroad.261 Similarly, under derivative citizenship, a foreign-born child can obtain citizenship if at least one parent naturalizes before the child turns eighteen and meets other statutory criteria.262 Jennifer Koh Lee enforcement ofﬁcers can be very challenging both in the absence of documentary evidence on hand and also because law enforcement ofﬁcers may not be trained on the various ways in which a person can be a U.S. citizen. The danger that more U.S. citizens will be erroneously arrested and deported through a summary removal procedure has increased as reliance on these processes swells and with the general expansion of immigration enforcement in border communities. As Rosenbloom notes, while a person with U.S. citizenship presenting him or herself at a port of entry is likely to be prepared for inspection and have his or her passport on hand, “the exponential expansion of immigration enforcement over the past few decades has increased the potential for individuals with a variety of statuses—from undocumented immigrants to those in lawful immigrant or non-immigrant status to those who are U.S. citizens—to interact with such enforcement in one form or another.”264 The possibility AMERICAN EXILE: Rapid Deportations That Bypass the Courtroom 45 Case: 14-50393, 02/07/2017, ID: 10304776, DktEntry: 43-2, Page 48 of 203 of being misidentiﬁed and funneled into the immigration system is compounded by incorrect assumptions about the “identiﬁability” of a U.S. citizen and, as several advocates along the southern border note, a lack of understanding about border communities and their ﬂuidity. Oscar Olivas is a U.S. citizen with a U.S. citizen daughter with disabilities. He was born in Los Angeles County in 1969. His mother, who was undocumented at the time (but is now a U.S. citizen), was afraid to go to a hospital given her undocumented status and so she gave birth with the assistance of a midwife in a private home. He was issued a delayed birth certiﬁcate when ﬁve months old. In 2009, Mr. Olivas began the process of applying for an immigrant visa for his wife and stepson, both Mexican nationals; the couple already had a U.S. citizen daughter but decided to move to Mexicali, Mexico (near the Californian border), while the application process went forward. The family planned that Mr. Olivas would work in the United States, crossing the border each day and taking his U.S. citizen “For three years, I’ve been waiting to have my day in court. We are stranded in Mexico and desperate to return to the United States.” daughter to school in the United States where she would receive the treatment and therapy she requires for her speech and language impairment. As part of Mr. Olivas’s wife’s application process, the U.S. Consulate in Juárez, Mexico, interviewed Mr. Olivas’s mother, interrogating her for hours and coercing her to sign a “confession” that her son had been born in Mexico. ez anch , 2017 a-S eralt bruary 2 .P SA v d on Fe in U hive ited C arc 393 -50 o. 14 N Oscar Olivas, a U.S. citizen, with his wife, stepson, and U.S. citizen daughter in Mexicali, Mexico. The U.S. government refuses to recognize Oscar as a U.S. citizen, so he and his family are in limbo in Mexico, which does not recognize Oscar as a Mexican citizen. 46 AMERICAN CIVIL LIBERTIES UNION Case: 14-50393, 02/07/2017, ID: 10304776, DktEntry: 43-2, Page 49 of 203 delaying or obstructing an ofﬁcer or emergency medical In 2011, while attempting to return to the United States, Mr. Olivas was told by CBP ofﬁcers that he could not technician,” he was questioned by prison staff about his enter but would see an immigration judge to verify his citizenship: “I said I don’t know where I was born but I citizenship claim. That hearing never came, but on one of think I was born here, in the U.S. . . . I told them I grew Mr. Olivas’s attempts to speak with CBP about his hearing, up in part in Mexico. Then they just took me out and he was informed by a CBP ofﬁcer that a removal order had deported me.”268 Several days later, he walked to the port been issued against him. “For three years, all I’ve wanted is of entry and asked to speak with a border ofﬁcial: “I said my day in court so that I can prove that I am a U.S. citizen I needed help. I said, ‘I think I’m a U.S. citizen.’ They just and that my family and I should be allowed to return to put me in handcuffs and took me to CCA [a detention the United States. But the government has denied me any facility].”269 Peter was given the chance to see a judge, but opportunity to prove my case. As a result, my family and I the immigration judge incorrectly placed the burden on have been stranded in Mexico. We are desperate to return Peter to provide proof of citizenship and ordered him to the country we call home.” After the ACLU ﬁled a lawsuit removed, suggesting he try to apply for a passport.270 Once on Mr. Olivas’s behalf in June 2014, the U.S. government again, Peter tried to return to his family in the United States revealed that it had never ﬁled the removal order—but it but was turned back: “I just signed the papers without also had never served Mr. Olivas with an Notice to Appear knowing what they were. I asked if this was going to get in immigration court, leaving him in limbo these last three me in trouble and they said, ‘No, it’s just for your release.’ years. Mr. Olivas’s attorney, Gabriela Rivera, observed that They would ask where I was born and I would say, ‘I don’t her client’s case, while complicated, was not exceptional know, I thought I was born here in the U.S.’”271 Peter was given the procedural and structural deﬁciencies in the ﬁnally able to enter without inspection, restart his life in expedited removal system: “Mr. Olivas’s unlawful expulsion California, and became engaged to a U.S. citizen. Three ez at the was not an innocent mistake by immigration enforcement years later,ancshowed up017 gym where he worked, CBP h ,2 a-S ofﬁcers,” says Ms. Rivera. “It was the predictable arrested ar referred eralt him, andy 2 him for federal prosecution for bru consequence of a system that relies on racial and ethnic v. P illegal reentry. Peter then spent 13 months in federal prison SA n Fe stereotypes, empowers ofﬁcers to act as judge, jury and ived o reentering; with the help of his federal public defender, in U for itedindividuals h C executioner, and all but prohibits affected 93 arc Peter is appealing and hopes to win recognition as a U.S. 3 from seeking judicial review.”265 Mr. Olivas and his family 4-50 citizen. In the meantime, with no Mexican birth certiﬁcate 1 No. continue to live in Mexico, in limbo, where Mr. Olivas and no ID, he is constantly harassed by Mexican police in cannot work to support his family and where his daughter Tijuana and feels lost: “What am I doing here?” he asked.272 is unable to access the necessary care and treatment she needs for her disabilities.266 Ms. Rivera observes that the Maria de la Paz is a 30-year-old U.S. citizen who, like her U.S. government’s continued refusal to allow Mr. Olivas two sisters, was born in Houston, Texas; her mother is an to return to his homeland is more than a symbolic injury LPR. When Maria was 18, she was issued an expedited for Mr. Olivas and others in his situation: “The beneﬁts removal order at a port of entry in Texas by a CBP ofﬁcer of citizenship—including stability, mobility, political who refused to believe she was a U.S. citizen. As detailed rights, and protection against arbitrary expulsion—are not in her habeas petition, the ofﬁcer who inspected her at the theoretical. They have real-life implications for people like border said that someone who did not speak English could Mr. Olivas and his family.”267 not be a U.S. citizen and ordered her removed.273 Although Peter V. has always believed that he was a U.S. citizen like his siblings, even though part of his childhood was spent in Mexico, a not-uncommon experience along the southern U.S. border. His mother died when he was two, and his father, whom Peter and his family believe to be a U.S. citizen, was not a part of his life. But while serving a criminal sentence in California in 2003 for “resisting, “I said I needed help, [that] I think I’m a U.S. citizen. They just put me in handcuffs...” AMERICAN EXILE: Rapid Deportations That Bypass the Courtroom 47 Case: 14-50393, 02/07/2017, ID: 10304776, DktEntry: 43-2, Page 50 of 203 “It was as if we had been kidnapped.” Laura and Yuliana were traveling to the United States with their mother, who had a valid tourist visa, and Yuliana’s infant daughter. Laura had her U.S. passport and Yuliana, who had applied for a passport but had not yet received it, showed her Texas ID, the receipt for her application for a U.S. passport, and the Texas birth certiﬁcate.278 When the CBP ofﬁcer in Brownsville, Texas, noted that Yuliana had had a midwife birth, he detained and interrogated the women for over ten hours.279 Speaking later to a journalist, Trinidad said, “It was as if we had been kidnapped.”280 After hours of threats, the ofﬁcer extracted a “confession” from Trinidad that the daughters had been born in Mexico; he then seized all their documents, treated Laura and Yuliana as having “withdrawn” their applications, and issued an expedited removal order for Trinidad, also charging her as inadmissible for fraud.281 Although the U.S. government later recognized that Yuliana and Laura were U.S. citizens after their lawsuit in federal court, Trinidad is, to this day, banned from entering the United States given the erroneous fraud ﬁnding. her birth was properly recorded in Texas, there were errors in the spelling of her name and her mother’s name (not picked up by her mother, who did not read or write), and her birth was also registered in Mexico. In Mexico, Ms. de la Paz tried to apply for a U.S. passport, but over several months, the U.S. Consulate asked for successive pieces of evidence of her U.S. birth, including school records that included photos (which did not exist). Finally, in January 2014 and apparently “thinking that there was no other way to come to the United States to be with her family,” Ms. de la Paz attempted to cross into the United States but was caught, arrested, and detained by CBP.274 While in custody, she again explained that she was born in Texas; according to the petition, the CBP ofﬁcer did not attempt to verify her claim before reinstating her prior expedited removal Another plaintiff inhez U.S. citizen Jessica Garcia, order and banning her from returning to the United States anc the case, 017 worked in Texas. livedaltMexico with y 2, 2 in a-S her husband but 275 for 20 years. After her attorney, Jaime Díez, ﬁled a habeas r Pe2009, she bruar to cross through the Brownsville, . petition on her behalf, the U.S. Consulate in Mexico ﬁnally v In n Fe was trying USA ed o port of entry on her way to work when she was taken Texas, agreed to issue her a passport and allow herd in te i276 to return tochiv to secondary inspection, locked in a room, and accused by r the C 3a United States. She returned in July 2014. CBP ofﬁcers of making false representations. When Ms. 5039 . 14oPaz, may be complicated Garcia refused to sign any paperwork or “confess” to using N Some cases, like that of Ms. de la a false birth certiﬁcate, the ofﬁcer conﬁscated all of her by factual inconsistencies, even when they can be clariﬁed documents, including her Texas birth certiﬁcate. Although and resolved. But as Ms. de la Paz’s case also suggests, a Notice to Appear (NTA) was issued and she should have some immigration ofﬁcers may assume that citizenship been given the chance to see a judge, DHS never ﬁled the is straightforward and always looks the same—and some NTA, so a hearing was not scheduled; instead, Ms. Garcia may be resistant to the idea that a person who does not was stuck in limbo and lost her job.282 speak English or was not born in a hospital could be a U.S. citizen. In 2010, several U.S. citizens who were born in Texas with the assistance of midwives ﬁled a federal lawsuit challenging the effective denial of their citizenship without a fair opportunity to defend their rights. The plaintiffs’ cases highlighted the coercion, intimidation, denial of counsel, and misconduct by border ofﬁcials at ports of entry who abused their authority with ongoing consequences for both the U.S. citizens and their families.277 Two of those women, sisters Laura and Yuliana Castro, were born in Brownsville, Texas, in 1980 and 1984 but raised in Mexico by their Mexican-citizen mother, Trinidad. In 2009, 48 AMERICAN CIVIL LIBERTIES UNION a. U.S. Citizens with Mental Disabilities As the ACLU and Human Rights Watch previously documented in a joint 2010 report, Deportation by Default, individuals with mental disabilities may be at particular risk of erroneous deportation given the complexity of immigration law, the continued absence of appointed counsel in all immigration proceedings, and (in the absence of a lawyer) the reliance on a person’s own statements and admissions as the primary evidence.283 As that investigation Case: 14-50393, 02/07/2017, ID: 10304776, DktEntry: 43-2, Page 51 of 203 returning to New York after visiting family in Jamaica; CBP believed her passport was fraudulent.286 In 2007, Pedro Guzman, a 29-year-old U.S. citizen with developmental disabilities, was serving a sentence for trespassing in a jail in California when ICE misidentiﬁed him as a non-citizen and coerced him to sign a voluntary departure order. He was deported to Mexico, where he was lost for almost ACLU of North Carolina three months before he was found by U.S. ofﬁcials deported Mark Lyttle, a U.S. citizen with mental disabilities, through family and able to return to his family expedited removal after a prior unlawful deportation. in California.287 In 2008, U.S. citizen Mark Lyttle, diagnosed with bipolar demonstrated, a person with a severe mental disability disorder and developmental disabilities, was misidentiﬁed by jail and ICE personnel as a Mexican citizen and deported to facing deportation must rely upon an immigration judge Mexico (and from there to Honduras and then Guatemala). who is able to recognize that a person facing removal has a Mr. Lyttle quickly attempted to return to the United States disability and does not understand the proceeding to try to but was removed with an expedited removal order. It took help them—but sometimes this occurs quite late in the case four months for Mr. Lyttle to return home to the United and any assistance is limited in the absence of appointed z 284 States and evenche he did, with a U.S. passport sent to the counsel. However limited courtroom proceedings have an when , 2017 S in 2 U.S. aprior y proven to be, they at least provide some statutory and eraltConsulatearGuatemala, his288 deportation raised a . v285 P red ﬂagebru at the airport. Fortunately, his attorney with CBP F A regulatory safeguards for people with mental disabilities. in US hived on present and able to ensure his release and return to his was Individuals ordered deported throughed rc Cit summary removal family.289 93 a proceedings, which can be very quick and are handled by -503 1 immigration enforcement ofﬁcers, 4 not even have the No. do limited safeguards available to individuals with disabilities in court. As a result, there have been several cases of U.S. citizens with mental disabilities deported from the United States. In 2000, Sharon McKnight, a U.S. citizen with cognitive disabilities, was deported through expedited removal when U.S. citizen Mark Lyttle was misidentiﬁed as Mexican and deported; he was deported again through expedited removal when he tried to return. In 2003, U.S. citizen Michael C. was interviewed by ICE while serving a sentence for assault in a Texas state prison and deported through 238b as a non-citizen convicted of an aggravated felony. Although ICE contends he admitted to being a Mexican citizen, Michael’s birth certiﬁcate from Texas demonstrates he was born in the United States,290 and on the notice of intent to issue a ﬁnal administrative order, he contested his deportability and told ICE that he was a U.S. citizen.291 Before the end of his sentence, he wrote to ICE wishing to know if they still intended to deport him even though he was a U.S. citizen; in response, DHS wrote that he had not produced any evidence of his citizenship while in prison.292 He was removed to Mexico but managed to return to the United States; his case is ongoing.293 * * * If there are any bright-line rules in U.S. immigration law, one of them is certainly that U.S. citizens cannot AMERICAN EXILE: Rapid Deportations That Bypass the Courtroom 49 Case: 14-50393, 02/07/2017, ID: 10304776, DktEntry: 43-2, Page 52 of 203 be deported from the United States. Thus, an individual who claims to be a U.S. citizen when subject to expedited removal is entitled to a formal removal hearing before an immigration judge with the required safeguards, including the right to counsel (at one’s own expense) and the right to appeal the immigration judge’s order.294 After Pedro Guzman was erroneously deported and a lawsuit brought on his behalf by the ACLU, ICE issued guidance on citizenship claims by detainees; under this guidance, ICE ofﬁcers must consult with the Ofﬁce of Chief Counsel in cases with “some probative evidence” of citizenship and must “fully investigate the merits” of such claim.295 It is unclear whether CBP has similar guidance and what training, if any, exists to verify and investigate claims to U.S. citizenship. citizen children, he is pursuing his claim that he is a U.S. citizen so he can at least visit his family.298 b. U.S. Residents with Valid Status While the deportation of a U.S. citizen is the epitome of an unlawful deportation, other individuals such as lawful permanent residents (LPRs), refugees, asylees, and others on valid work or tourist visas are not supposed to be deported without seeing a judge. In some circumstances, these individuals may nonetheless lose their immigration status and be deported, for example, if convicted of certain criminal conduct; however, even in these circumstances, they are entitled to a hearing in immigration court to determine whether they are, in fact, removable and whether they are nonetheless eligible for relief from deportation. The number of known cases of U.S. citizens deported from the United States remains low, and according to DHS data provided to The New York Times in response to a FOIA As previously noted, sometimes removability is a complex request and analyzed by the ACLU, in FY 2013, only 97 determination, and it may not be obvious to an arresting individuals were referred to an immigration judge for immigration enforcement ofﬁcer that a person has status a claimed status review hearing, where individuals who ez that makes them non-deportable. 7 speed with which anch , 201 The claim U.S. citizenship can seek review of their expedited a-S these removal procedures occur, combined with the 296 eralt bruary 2 removal order. Individuals are supposed to be referred tov. P lack of supervision and legal assistance, make errors in Fe an immigration judge if they claim “under oathn USA or under d on i eidentiﬁcation of a non-citizen inevitable. penalty of perjury” to be a U.S. citizen, LPR, asylee, or rchiv Cited 93 a more refugee.297 There could certainly be many 503 U.S. citizens is not so difﬁcult to . 14- could be others In some cases, the individual’s status even in these cases, who were not referred for review. And there No determine and can be easily veriﬁed; who did not know about their U.S. citizenship because they however, immigration ofﬁcers have quickly deported have derivative or acquired status. Timothy D., a Canadian individuals with lawful status in the United States— interviewed by the ACLU, believes he has a derivative sometimes sending them to life-threatening situations. For citizenship claim; he did not raise that claim when issued example, Nydia R. is a 36-year-old transgender woman an expedited removal order because he believed he was from Mexico with asylum in the United States who, since already lawfully in the United States on his business visa securing asylum, has twice been illegally deported through and the U.S. citizenship was not his foremost reason for summary removal procedures. After years of threats and being in the United States. Now that he has been deported harassment for being transgender, Nydia ﬂed to the United and is separated from his U.S. citizen wife and two U.S. States in 2003. Three years later, her nephew in Mexico was dying of cancer, so she returned to see him; the danger and threats persisted, so she attempted to return to the United States. At the border, she told the immigration ofﬁcers about the violence she experienced in Mexico but was nonetheless deported to Mexico without being referred for a credible fear interview. “I showed the ofﬁcers the markings on my body from being beaten and they didn’t seem to care,” Nydia told the ACLU.299 She eventually managed to enter the United States without inspection “I showed the ofﬁcers the markings on my body from being beaten and they didn’t seem to care.” 50 AMERICAN CIVIL LIBERTIES UNION Case: 14-50393, 02/07/2017, ID: 10304776, DktEntry: 43-2, Page 53 of 203 Nydia had asylum in the U.S. when she was illegally deported—twice—at the border. Deported to Mexico, Nydia was kidnapped and raped. and, in 2008, she applied for and received asylum. Nydia told the ACLU that she planned to apply to adjust her status and become a lawful permanent resident but did not have the money. GETTY In 2010, Nydia’s mother died, and Nydia returned to Nydia, a transgender Mexican immigrant, already had asylum Mexico for the funeral. “I was afraid [to go back], but in the when U.S. border ofﬁcials deported her back to danger in Mexico. moment, I just blocked out everything that had happened ez anch , 2017 to me; when I got there, I thought ‘Oh my God, why am I a-S eralt bruary 2 here?’ . . . All I could think about was how much I wanted . P Despitee terrifying treatment, Nydia did tell the ofﬁcer, F this Av to see my mother for the last time, but onceingot there, I I US d on e as documented in her interview, that she had asylum status d iv was terriﬁed.”300 In Mexico, Nydia Cite familyarch says her rejected and that she was afraid to go back to Mexico. According 93 tried to her, and she was attacked by groups of503who 4- men to the sworn statement, recorded during her interview 1 remove her breast implants, and then beat and raped her. No. with CBP, Nydia said she left Mexico because she was Nydia was robbed of her money and all her documents “discriminated against by my family and by people in the and spent almost a year trying to ﬁnd help in Mexico so city. About a week and a half ago … some gang members she could return to the United States. Finally, on March grabbed me in the street. They tried to stab me and take 18, 2011, she tried to enter the United States through San out my implants. . . . They hit, beat, and raped me.”302 Close Ysidro. Nydia recalls: to 3 a.m., after hours of questioning, her statement was read back to her in Spanish, and she signed it. Minutes I was so desperate; all I wanted was to be here [in later, Nydia says, the ofﬁcer told her that seeing a judge the United States]. In Tijuana I met someone who would be useless; still, Nydia recalls, “I said I would rather sold me an ID. I tried to enter and that’s when see a judge and stay in detention.”303 At that point, she was they detained me. I explained my situation and brought more papers to sign—in English, which she could asked to see a judge. …The ofﬁcials were trying not read—and she signed them, assuming they were the to ﬁnd out if I was actually a woman “naturally.” same papers she just signed in Spanish. In fact, it was an They were saying, “You look her over!” “No, you expedited removal order. According to the form, the ofﬁcer look her over!” Finally, they told me to take off my wrote, “At approximately 0445 hours, [ ] admitted to not pants in front of two men. . . . Just imagine, you having a fear and concern and requested to be returned try so hard to be the person you want to be, you to Mexico.” Nydia, who was still bruised from her recent undergo surgery, which is incredibly painful. And then they don’t even treat you like a person.301 attack and rape, was placed in a van and dropped in AMERICAN EXILE: Rapid Deportations That Bypass the Courtroom 51 Case: 14-50393, 02/07/2017, ID: 10304776, DktEntry: 43-2, Page 54 of 203 Even with a U visa and 15 years in the United States, Francisco was deported and then given an expedited removal order when he asked for help at the border. Mexico, where she slept on the streets, afraid to go back to her hometown. deportations were not authorized by law, there was no immediate legal recourse to ensure their safe return. Francisco N. G., a 21-year-old from Mexico, came to the United States with his family in 1999. He was six years old when his family settled in Texas, where he attended elementary, middle, and high school. When he was a senior in high school, his father attacked him and his mother. Francisco, who was trying to protect his mother, called the police and testiﬁed against his father in court; because of their cooperation, both he and his mother were able to apply for a U visa (a nonimmigrant visa for victims of crimes). Recalls Francisco, “A few months later, we attended court and won the case that put us on a path away from my dad.”306 In early 2014, Francisco was driving himself and coworkers to work at a construction site near San Antonio, Texas, when he was pulled over by police for having an expired registration sticker. The police called ICE, who arrested everyone in the car. Francisco was also arrested and handcuffed by an ofﬁcer who, Francisco recalls, told him he was going “backz where I came from.”307 Francisco e to anch , 2by17 ofﬁcers about what was detained and questioned 0 several a-S ra doing r the United ewaslt binuary 2 States. After approximately 12 he P e hours, F d onhe was moved from San Antonio to Laredo, where On April 26, 2011, Nydia again tried to return to the United States; when she was arrested by immigration ofﬁcers, she tried to explain that she already had asylum in the United States. The ofﬁcers ran a Central Index System check, which showed that Nydia was in fact an asylee.304 Nonetheless, she was processed through reinstatement and given a removal order prohibiting her from reentering the United States v. A for 20 years. Deported again to Mexico, and immediately in US hive in danger on the streets, Nydia Cited 93 arc looked for work along with another 503 . 14transgender woman but faced abuse No wherever she went. Says Nydia, “That is when the other transgender woman and I were kidnapped and forced to work for Los Zetas [cartel]. They made us prostitute our bodies for them.” Nydia was able to escape after several months and returned to the United States without being arrested. “I really like living here in the U.S. The thing I like the most is that I feel free. Obviously, I’m still afraid but the truth is that I feel protected.”305 Other individuals interviewed by the ACLU were also deported without a hearing when they were misidentiﬁed as having no status in the United States, and although their 52 AMERICAN CIVIL LIBERTIES UNION On the bridge between El Paso, Texas, and Ciudad Juárez, Mexico. Case: 14-50393, 02/07/2017, ID: 10304776, DktEntry: 43-2, Page 55 of 203 he says ofﬁcers threw away his U visa ID and accused him of lying about his status: The ofﬁcer who had the forms told me that it didn’t matter, that even if I was telling the truth the judge could overturn the decision and send me back to Mexico. …I had three or four ofﬁcers telling me, watching, and waiting for me to give up and sign that sheet. . . . When I explained about my status and asked if I could call [my attorney at] American Gateways, they said no. When I asked to call my family, they said no. I kept asking but ﬁnally one of the ofﬁcers told me to understand that I would get no call until they were ﬁnished with me. The only call I got to make was (as I was leaving) to my mother to let her know what had happened.308 to Mexico. Although his attorneys and family are in Texas, he was transferred to a detention center in Washington State to await his credible fear interview. After several days, Francisco was released from detention, his expedited removal order was terminated, and he returned to his family in Texas. Guadeloupe was also deported despite having been approved for a U visa and after showing the approval paperwork to CBP ofﬁcers.311 Guadeloupe, a 36-year-old mother of ﬁve U.S. citizen children, came to the United States when she was 15 after the death of her mother to join her U.S. citizen and LPR brothers, who were living in Texas. In Texas, where she has lived for almost 21 years, she raised ﬁve U.S. citizen children but was physically abused by both her partners; the ﬁrst was a U.S. citizen and the second an LPR. Guadeloupe was twice deported at the port of entry in El Paso, Texas; both times, the forms were The ofﬁcers, Francisco says, told him he was being charged in English and she says she did not understand what was with smuggling, and the other men in the car wanted to be happening. On the second occasion, in 2011, Guadeloupe deported, so if he went to court there would be no one to was prosecuted for illegal reentry and served 11 months ez testify in his defense and he would go to prison for many in federal prison, but while in prison she was able to apply anch , 2017 S years. The next day, he was deported to Piedras Negras, and ary for U visa, eraltreceiverapproval2 aIn 2013,based ona the domestic Mexico, where he knew no one. during routine checkv. P violence she ua eb experienced. USA ed on F her probation ofﬁcer in El Paso, the probation in h v in withcalled CBP to come and interview Guadeloupe. Cited 93 arup i At the time of his deportation, Francisco was saving c for ofﬁcer 3 5 his dentistry school and working to support0 mother and Guadeloupe explained that she had an approved U visa and . 14N incredibly difﬁcult for his brother. His deportation waso presented the papers, but the CBP ofﬁcer proceeded with family in Texas. Recalls Francisco, “I was a really big help her deportation. “He took [the visa paperwork] away and to my Mom in raising my younger brother and helping out said it was no good,” recalls Guadeloupe. “He then handed with the bills. So ﬁnancially and emotionally, they [were] over my deportation order that had my signature already going through some difﬁcult times.”309 After Francisco’s deportation to Mexico, Francisco’s father was also deported and started threatening to harm his son. Although he has valid U status, Francisco still needed authorization to reenter the United States after his removal; however, the normal route, consular processing (which includes fees and an interview with a U.S. consulate), would have been very lengthy and expensive, as he would also have had to apply and wait for a waiver. Because of the threats he was facing from his father, Francisco presented himself at the U.S. border, accompanied by an attorney, and asked to be paroled into the United States because he had U status.310 CBP, however, refused to admit him and appears to have issued an expedited removal order. Fortunately, Francisco was able to explain his fear of being deported Javier Pelayo, an LPR with mental disabilities, was deported by an ofﬁcer who assumed he was undocumented. He died apparently trying to return to his family. AMERICAN EXILE: Rapid Deportations That Bypass the Courtroom 53 Case: 14-50393, 02/07/2017, ID: 10304776, DktEntry: 43-2, Page 56 of 203 signed.”312 Guadeloupe was deported to Ciudad Juárez, Mexico, where she was homeless for over two months: “In Mexico, I had no ID, no money, no connections to start my life again, no way to get a job. I was legitimately afraid of dying there.”313 Advocacy from her attorney and the American Immigration Council eventually secured her return to her children in Texas, but she remains afraid that at any moment, she could again be picked up and deported.314 Javier Pelayo was an LPR with mental disabilities who came to the United States as a young child and grew up in Texas. Given his disabilities, his family encouraged him not to carry his LPR card with him so that he would not lose it. In April 2000, Mr. Pelayo went to a fast food restaurant and was arrested by Border Patrol agents who apparently assumed he was undocumented and deported him, after almost 20 years in the United States. His mother, also an LPR and a farm worker, searched for him at jails and hospitals to no avail. “At ﬁrst when he disappeared I tried to ﬁnd him, asking everybody for information,” she said. “That was for weeks. Then they told me he was dead.”315 A month later, his body turned up in the river; he had apparently tried to swim back to his family in Texas.316 A v. to the CBP ofﬁcers that her mother was very ill and that her parents do not speak English. Gabriela recalls that the ofﬁcer told her that her parents could either abandon their LPR status or go before an immigration judge. “[The ofﬁcer] let me talk to my mom, and my mom said, ‘I don’t know what they are talking about, I don’t understand.’”319 Gabriela and her mother decided she should ask to see a judge who could verify their right to return home to the United States, and Gabriela communicated this to the CBP ofﬁcer. Gabriela says several hours went by before the CBP ofﬁcer called her back and stated her parents were being processed for abandonment of LPR status.320 Although CBP did not ultimately issue a summary removal order while also stripping the couple of their LPR status, this couple is now in legal limbo and without a formal means to challenge this deprivation of their rights and status. * * * In all of these cases, while the person’s status might not have been obvious to the arresting and interviewing DHS ofﬁcer, the claim shouldz che have triggered more serious review 17 -San y 2, 20the individual to speak to a and alleast an opportunity for at ta Per andebrauar before more penalizing action was lawyer F see judge US taken. d onEven for those deported who were eventually able in ve Cited 93 fromhi to return to the United States, the emotional and ﬁnancial Rocio and Nicolas L., a retired LPR couple originallyarc 3 costs to them and their families have sometimes been Argentina, had been LPRs for over 20 4-50 years; they lived . 1her family. The oand signiﬁcant and yet have no redress. N in California near their daughter couple was returning to the United States after seeking less expensive medical treatment abroad when a CBP ofﬁcer pressured them to “abandon” their LPR status at the Atlanta, Georgia, airport. Under federal law, a lawful permanent resident (LPR) is not treated as an arriving noncitizen seeking admission when they return to the United States.317 However, there are some exceptions, notably (1) if the individual “has abandoned or relinquished that status” or (2) if he or she “has been absent from the United States for a continuous period in excess of 180 days.”318 In these circumstances, an immigration ofﬁcer can treat the individual as having abandoned their status as an LPR. Rocio, accompanied by her husband, who has some mental health difﬁculties, had been receiving cancer treatment in Argentina and was returning after four months abroad. After hours of detention and interrogation, they were allowed to call their daughter, Gabriela H., who explained 54 AMERICAN CIVIL LIBERTIES UNION 2. Expedited Removal of Tourists and Business Visitors Expedited removal allows immigration ofﬁcers to remove non-citizens who are “inadmissible,” meaning they are attempting to enter the United States without valid travel documents or through fraud and misrepresentation. In practice, immigration ofﬁcers at ports of entry sometimes remove individuals with seemingly valid entry documents whom an ofﬁcer suspects of not complying with their visa. For example, if a border ofﬁcer believes that someone on a valid tourist or business visa actually intends to immigrate, he or she might accuse the individual of fraud or misrepresentation. Or, according to advocates interviewed and cases documented for this report, if an ofﬁcer suspects the individual is doing work not authorized by that speciﬁc Case: 14-50393, 02/07/2017, ID: 10304776, DktEntry: 43-2, Page 57 of 203 visa, the ofﬁcer might cancel the visa and also immediately issue an expedited removal order. Ofﬁcers have enormous discretion to make these determinations, and there are no regulations specifying what facts and evidence an ofﬁcer must consider and produce when deciding to cancel a visa and issue an expedited removal order. Courts have recognized the incredible power this gives to line ofﬁcers at a port of entry (and beyond). In Khan v. Holder, the U.S. Court of Appeals for the Seventh Circuit, while recognizing limits on its authority to dissect an expedited removal order, observed: The troubling reality of the expedited removal procedure is that a CBP ofﬁcer can create the [] charge by deciding to convert the person’s status from a non-immigrant with valid papers to an intending immigrant without the proper papers, and then that same ofﬁcer, free from the risk of judicial oversight, can conﬁrm his or her suspicions of the person’s intentions and ﬁnd the person guilty of that charge. The entire process—from the initial decision to convert the For Mexicans and Canadians who lawfully work in the United States each day, expedited removal—or seizure of their visa—is a looming threat. person’s status to removal—can happen without any check on whether the person understood the proceedings, had an interpreter, or enjoyed any other safeguards. To say that this procedure is fraught with risk of arbitrary, mistaken, or discriminatory behavior (suppose a particular CBP ofﬁcer decides that enough visitors from ez Africa have already entered the United States) anch to,say 017 are free 2 that courts is not, however, a-S eralt bruary 2 disregard jurisdictional to v. P n Fe limitations.321 ed o A in US hiv Cited 93 arc 503 . 14No Thousands of people enter and leave the United States each day. Many lawfully enter the United States to work or study while living in Mexico or Canada. As with most expedited removal orders, there is no meaningful opportunity to challenge these orders or have them rescinded. In a recent decision, however, the U.S. Court of Appeals for the Ninth Circuit determined that despite limitations on reviewing whether a CBP ofﬁcer correctly identiﬁed someone as inadmissible,322 courts do have the ability to review the threshold question of whether CBP had legal authority under the statute to place a non-citizen in expedited removal proceedings.323 For example, if a person was, as a legal matter, incorrectly identiﬁed as inadmissible (and thus, given an expedited removal order), he or she should still have the opportunity to bring this to a court AMERICAN EXILE: Rapid Deportations That Bypass the Courtroom 55 Case: 14-50393, 02/07/2017, ID: 10304776, DktEntry: 43-2, Page 58 of 203 and dispute that CBP had the legal authority to place him or her into the expedited removal process in the ﬁrst place. This is a new decision, however, and for most people, challenging an expedited removal order and its factual basis—however tenuous—will continue to be difﬁcult. Along the southern and northern U.S. land borders, where people from Mexico and Canada routinely and lawfully work or study in the United States and cross the international border as part of their daily commute, expedited removal remains a threat. Ofﬁcers have enormous power to issue orders or take away a person’s visa based on subjective assumptions and with limited evidence. Human rights advocate Crystal Massey, working in New Mexico at the Southwest Asylum & Migration Institute, has observed that people with valid visas who cross into the United States to visit family, go shopping, or attend church services can suddenly have their border crossing cards taken with no explanation and little recourse: “There is no investigation; the government doesn’t have to share anything at all. And it’s too late when they’ve taken your visa.”324 where products under warranty could be inspected. Scott L., one of Yolo Medical’s employees trained in highly specialized technical repair work, lives in British Columbia and would periodically drive to Washington State to perform routine repair work on Yolo products at the distribution center. Yolo Medical prepared a B-1 (business) visa application, which Scott brought to CBP, but it was rejected and he was told he could perform only warranty inspection work in the United States. Yolo Medical engaged a lawyer, adjusted the application, and brought it to CBP, which then said that Scott would need to pick up any products for repair and bring them to Canada for repair. One day, visiting the Washington distribution center, Scott picked up products for repair; before returning to Canada, he noticed that one customer’s product needed only a small adjustment to be ﬁxed, which he did at the distribution center. Scott says he did not think anything of it, but when he got to the border, he was questioned by an immigration ofﬁcer: “CBP asked me if I did any work in the U.S., and I said no because I didn’t consider that actual work; but they called the warehouse and asked if I had any tools, and [the] ez anchI had, a2017 Then they said I receptionistS yes, lta- said lied the screwdriver. erintentionally aryto2 border agent.”327 had a P bru Rosalba, a 56-year-old Mexican woman, has regularly traveled to the United States, always on a valid tourist visa v. SA n Fe that she has never overstayed. In 2010, she marriedUU.S. ved o a in Cited 93 ar hi Scott was detained for approximately 8 hours until he citizen who lives in Texas; they kept separate residences,c 3 signed an expedited removal order. The result, says Scott’s Rosalba in Mexico and her husband14-5in Texas, Raoul 0 .weeks. Raoul is ill with supervisor Lorenzo Lepore, is that Yolo Medical has closed N of visiting each other every couple o its branch in the United States, laying off U.S. citizen throat cancer; he requires surgery every two months and employees, and added signiﬁcant costs and time to its his disability checks are his only source of income. On operations: “Customers pay a lot more to get their warranty September 24, 2010, Rosalba was driving to Texas to see work. . . . No one crosses the border anymore to do this her husband and his sister, who was in the hospital. She work. It’s really complicated the process, made it longer and recalls that the border ofﬁcials stated they wanted proof her much more expensive.” For Mr. Lepore, it does not make sister-in-law was in the hospital and took her into an ofﬁce, sense to try again to get permission for an employee to searched her, and then pressured her to sign an expedited cross the border, after their last experience, even though the removal order: “The ofﬁcial was insisting and insisting, and company previously planned to expand operations in the telling me I lived in San Antonio, and that if I didn’t admit United States: [it], he could put me in jail. . . . I was scared, so I signed it.”325 According to Rosalba’s attorneys, even though staff at the U.S. Consulate in Mexico agree that Rosalba should not have been issued an expedited removal order, she must still apply for a waiver and remain outside of the United States for now.326 For years, Yolo Medical, a Canadian medical distribution company, had a distribution branch in Washington State, 56 AMERICAN CIVIL LIBERTIES UNION We tried to comply with whatever we were told to do. . . . [E]ven after we did everything [CBP] told us to do, [Scott] still ended up with an expedited removal order. The biggest thing we take from this is that you, as an individual or a company, have no rights. We did everything by the books and we still lost. . . . It’s just been one bad thing Case: 14-50393, 02/07/2017, ID: 10304776, DktEntry: 43-2, Page 59 of 203 “We did everything by the books and we still lost. . . . It’s just been one bad thing after another when we are just following the rules.” no right to judicial review of the circumstances), some advocates report that once a person has been issued an expedited removal order, getting another visa to reenter the United States—even after the ﬁve years have passed—can be difﬁcult. In cases where a person appears to be making a mistake and not willfully attempting to commit fraud or immigrate or work without authorization, allowing the individual to withdraw their application would be a more rights-protective and less punitive approach that also recognizes the realities of the interviews at ports of entry and the complexity of immigration law. after another when we are just following the rules. The ever-changing rules.328 Roland J., a 41-year-old Indian national, works in the computer software ﬁeld. He ﬁrst came to the United States in 2003 on an H-1B visa (a work permit) and later For Scott, the expedited removal order has been converted to a different nonimmigrant work visa in 2013. particularly problematic because his siblings live in the Roland regularly traveled to Canada for his work and in United States and he has had to miss family reunions while September 2013, while his new visa was pending, he says waiting for the ﬁve years to pass so he can lawfully return. he called several CBP ofﬁces to see if he could travel while his visa was being converted. Unable to get an answer by Zayyed is a professional chef in Mexico; friends in phone, Roland went to a port of entry and asked a CBP ez California invited him to visit and asked if he would cook, ofﬁcer who, Roland recalls, told him that he could travel anch , 2017 S for free, for a party during his stay. Zayyed, who always t the a 2 whilea- visa r pending. to Canada but eralreturnbwaswasyhe couldRoland went“The supervisoron traveled to the United States on a valid tourist visa, which. P his Fe ru told v not reenter. A n he claims never to have overstayed, was stopped at the ved o came and he started laughing. He asked me to prove that I in US hi ed According to Ci airport upon his arrival in the UnitedtStates. 3 arc spoke to the [other] ofﬁcer yesterday,” says Roland. “I went 39 his brother Antonio, an LPR living 4-California, Zayyed in 50 to another border crossing because I thought these ofﬁcers .1 was handcuffed, detained No days, and repeatedly told for two were making a mistake.”331 But the ofﬁcers at the next to admit that he was working without authorization in the border crossing said they could not help him either. He United States. Antonio says that Zayyed’s friends conﬁrmed tried yet another port of entry where an ofﬁcer approached by phone to CBP that Zayyed was not being paid but was his car. According to Roland, just going to help them out; nevertheless, he was forced to sign an expedited removal order and is banned from I explained I didn’t want to gain entry but I visiting the United States, where his siblings live, for ﬁve wanted to ﬁnd the solution to the problem. He years.329 said I had to turn over to the booth so he could talk to me. . . . I was there 3 hours and they Misguided and unsupported assumptions by DHS ofﬁcers started to ﬁll out a lot of paperwork. They asked can lead to unfair deportation orders that cannot be me to sign a paper—I asked if it was good or bad effectively rectiﬁed. To be sure, in some cases immigration and, they said, “neither good or bad,” so I signed. ofﬁcers may correctly identify a person attempting to But then he told me it was a removal order.332 enter the United States without authorization or by misrepresenting the purpose of their visit.330 Even in those Desperate and confused, Roland tried to get into the situations, however, it is possible that some of the alleged United States one more time, where his house, his job, and “misuse” was not willful. In such cases, expedited removal all his life savings were located. But immigration ofﬁcers is a blunt and drastic response; in addition to barring the reinstated his prior expedited removal order. “The ofﬁcer individual from reentering for ﬁve years or more (with had checked with his own pen where I was supposed to AMERICAN EXILE: Rapid Deportations That Bypass the Courtroom 57 Case: 14-50393, 02/07/2017, ID: 10304776, DktEntry: 43-2, Page 60 of 203 * * * “From my experience, I’ve learned you can be a lawabiding person and this can happen for no reason.” sign saying I didn’t want legal help. He said I could change my mind at any time. I didn’t know what I was signing.”333 CBP then referred him for prosecution for illegal reentry. Because he was able to show that he had not committed any fraud, his sentence was reduced from illegal reentry to illegal entry, and he was given time served. But with his reinstatement order, he is banned from the United States for 20 years. “From my experience, I’ve learned you can be a law-abiding person and this can happen for no reason.”334 In some instances, it is difﬁcult for an immigration ofﬁcer not trained in highly complex immigration law and with dozens of cases to process to determine whether an individual lacks lawful status in the United States and is removable. Summary removal procedures, in which immigration ofﬁcers are the adjudicator and deporter, place enormous responsibility on a single ofﬁcer to investigate and determine the facts and law in a short period of time. In cases where the facts and legal rights at issue are complicated, referring the individual to an immigration judge to have his or her case evaluated with a full hearing, and allowing him or her the opportunity to secure counsel and evidence to support his or her case, can make all the difference—and does not jeopardize an immigration enforcement ofﬁcer’s ability to perform his or her duties. Unwinding and correcting an unfair and illegal deportation order—even in the limited cases where that is possible—is a long and difﬁcult road. Timothy D., a Canadian national, ﬁrst came to the ez United States in 2001 on a TN (business) visa335 to teach anch , a-S at a university in Detroit, Michigan. He bought a home, eralt bruary 2 .P married a U.S. citizen, and has a six-year-old U.S. citizen SA v d on Fe nU h child; he and his ﬁrst wife divorced, andited i remarriedive Timothy C arc another U.S. citizen with whom he is expecting 93 3 a child. -50 In 2012, after spending the day in . 14 Timothy was o Canada, N crossing back into the United States when CBP ofﬁcers at the port of entry in Detroit pulled him into secondary inspection and started inquiring into his work. Timothy explained that in addition to being a professor, he did some graphic design contract work (for which he had registered with the State of Michigan and was paying taxes). Timothy says the CBP ofﬁcer told him he needed a different visa for that work, which Timothy says he did not realize.336 Getting a removal order was a shock: “The longer you’re present in the U.S., the less you think they are going to kick you out,” says Timothy.337 Timothy recognizes that despite his deportation and separation from his family, he is one of the fortunate ones; he has been twice allowed into the United States on parole to see his son, and his son has been able to spend summers with him in Canada: “I know plenty of people who don’t get parole. . . . For people who don’t have resources or education, this must be disastrous. I’m lucky.”338 58 AMERICAN CIVIL LIBERTIES UNION 2017 Case: 14-50393, 02/07/2017, ID: 10304776, DktEntry: 43-2, Page 61 of 203 C. LONGTIME RESIDENTS REMOVED WITHOUT A HEARING The summary removal procedures created by IIRIRA have diverted hundreds of thousands of people away from court and funneled them through quick administrative processes. While expedited removal in particular was largely a political response to the large numbers of Cuban and Haitian migrants arriving in the United States in the early 1990s,339 expedited removal and related summary deportation procedures are not used only against “arriving” migrants with no ties to the United States. People who have lived in the United States for most of their lives and have U.S. citizen family are also swept up into these procedures that bypass not only the courtroom but also critical constitutional and statutory protections. being that we owe more to non-citizens who are part of our community and have built ties and claims here. On the other hand, courts have held that non-citizens arriving at the U.S. border are not entitled to all the protections of U.S. constitutional law and, consequently, may have fewer claims that can be made when entry is denied. As the Supreme Court explained in one of the ﬁrst U.S. cases on the rights of immigrants seeking admission explained: It is not within the province of the judiciary to order that foreigners who have never been naturalized, nor acquired any domicil[e] or residence within the United States, nor even been admitted into the country pursuant to law, shall be permitted to enter, in opposition to the constitutional and lawful measures of the legislative and executive branches of the national government. As to such persons, the decisions of executive or administrative ofﬁcers, acting within powers expressly conferred by Congress, are due process of law.340 In the past, while recognizing that non-citizens have rights in the United States, federal law has drawn a distinction between the rights of immigrants who have entered the United States and those who are seeking entry at the border. ez anch courts017 reafﬁrmed the position In subsequent years, , 2 have Immigrants within the United States have due process rights a-S 2 eraltnon-citizensrat the border, seeking admission, have that under the U.S. Constitution to a fair hearing, the assumptionP rua y . b v e USA ed on F in v Cited 93 archi 503 Tijuana, Mexico. U.S. Border Patrol ofﬁcers at the U.S. border near San Diego, California, look for migrants attempting to enter the . 14No United States without authorization. Sam Frost AMERICAN EXILE: Rapid Deportations That Bypass the Courtroom 59 Case: 14-50393, 02/07/2017, ID: 10304776, DktEntry: 43-2, Page 62 of 203 more limited due process rights.341 Yet under the drastic changes brought about by the 1996 IIRIRA summary removal procedures, certain people who have entered the United States are nonetheless denied a removal hearing. Today, the people diverted from the courtroom and deported without a hearing are not all strangers without ties to the United States, and some might also win the right to remain here if given a fair hearing. for relief, defending their rights and winning relief is a matter of chance. 1. Deportations at the Border At the border, most people arriving without authorization, including undocumented immigrants returning to their families in the United States, are processed through expedited removal and quickly repatriated. The one thing the expedited removal form requires border ofﬁcers to ask when processing an individual for expedited removal is whether he or she is afraid of returning to his or her country of origin. As documented in previous chapters, this questioning is not always done and even when it does occur, is often superﬁcial. Almost a decade ago, when expedited removal was expanded beyond ports of entry, advocates warned that individuals who are eligible for discretionary relief (such as cancellation of removal) but were picked up within the United States could lose the opportunity to apply for relief if immigration ofﬁcers treated any absence from the United States as invalidating that opportunity.342 Unfortunately, these concerns have been corroborated. Many people Although DHS’s notice expanding expedited removal interviewed by the ACLU were longtime residents with U.S. in 2005 stated that DHS does not have to place a person citizen children but were deported without a hearing and in “interior” expedited removal proceedings where the without any inquiry into whether or not they had family equities weigh against it, no guidance has been publicly in the United States or how long they had been outside issued that indicates how a DHS ofﬁcer would make such hez 017 ancexpedited removal does not require any of the country. Indeed, it is not only individuals who left aS a decision.-Indeed, y 2, 2 eraltquestioningrby border ofﬁcials or screening for the United States and are returning whose lives in the ua P A v. further Febr United States are arbitrarily ignored; individuals arrested on US possible claims to enter and remain in the United States; ed in archived by immigration ofﬁcials anywhere in Cit the United States and whatever equities a person may have—U.S. citizen children, 3 coerced into accepting voluntary departure039 5 or removed long residence in the United States, etc.—often remain o. 14 because of a criminal conviction are also deported without N invisible throughout this process. The ACLU interviewed seeing a judge. several people in migrant shelters in Mexico and others In all these situations, DHS retains discretion to place individuals in formal removal proceedings before a judge; instead, DHS sometimes treats these individuals as outsiders with no claims, essentially erasing all their years in and ties in and to the United States. For undocumented longtime residents of the United States who may be eligible “I was told I would be taken to see a judge the next day, but instead I was taken to the border and told to go.” 60 AMERICAN CIVIL LIBERTIES UNION now in immigration proceedings who had been issued an expedited removal order at the border but had never been asked about their ties to the United States or referred for formal removal proceedings at the border. In some circumstances documented by the ACLU, individuals who had lived in the United States for many years left the country only brieﬂy to see their families, attend funerals, or for other compelling reasons, and yet, upon their return, they were subjected to expedited removal. Not only has this practice separated families, but it has also returned some people, and their U.S.-based family, to very dangerous conditions in violation of U.S. and international law. Wendy D. G., a 26-year-old woman from Honduras, came to the United States when she was 15. She attended high school in California and has two U.S. citizen children. In 2012, Wendy decided to return to Honduras to see her Case: 14-50393, 02/07/2017, ID: 10304776, DktEntry: 43-2, Page 63 of 203 family: “I decided after so many years, I wanted to see my family. . . . I never thought my country would be worse than when I left. But it was. . . . There was so much violence in the streets. I was thinking, ‘Why did I come here?’”343 Wendy soon attempted to return to the United States, leaving her daughter with family in Honduras until she could safely be sent for. When Wendy crossed into Texas, CBP arrested and detained her, and issued an expedited removal order. “I regret that I went back [to Honduras]. I’ve been living here [so long].”344 Wendy was moved through several different detention facilities before being released on an order of supervision. She is now living in Miami with her two U.S. citizen children, working with a temporary permit, and reporting to ICE. But at any moment, she could be deported. Says Wendy, “I’m a mom that wants to work for my kids. I want to succeed.”345 “I said I don’t know how to read or write and so he shouldn’t give me any papers, but he just said, ‘Sign here on each page.’” Inocencia C. came to the United States from Mexico when she was 12 years old and is the mother of three U.S. citizen children. After living in California for approximately 15 years, she left the United States under coercion from her abusive partner, the father of her children. The abuse only intensiﬁed when the family returned to Mexico, so after a few months, Inocencia sent her children back to the United States and then tried to cross herself. At the port of entry in San Ysidro, border ofﬁcers told her she would lose her z children andncheher to sign7 expedited removal order. a forced , 201 an -S Inocencia r ralta recalls, y 2 ua Pe A v. on Febr US know how and so ed in archived I said I don’t give me anyto read or write just said, Cit he shouldn’t papers, but he 393 “Sign here on each page”. . . . The ofﬁcer spoke 4-50 1 No. Spanish and he yelled at me, “The government can keep your kids because you are illegal. It is a crime, what you did.” I didn’t know anything about the law. Here I know if you abandon your kids they will take them away from you.346 She made three attempts to return to the United States and escape her violent ex-partner; eventually, she was not referred to an asylum ofﬁcer or for a hearing but was instead referred for prosecution for illegal reentry.347 After a federal judge gave her “time served” for illegal reentry and released her, and with intervention and advocacy from her federal public defenders, ICE agreed to place her in immigration proceedings, which are ongoing. Wendy, holding the passport of her U.S. citizen daughter, was ordered deported after she visited family in Honduras—her ﬁrst time there in almost a decade. In January 2014, Maria D., who had lived in the United States for 23 years, left the United States to attend her father’s funeral in Mexico. According to her attorney, Maria’s U visa, based on an assault and attempted rape AMERICAN EXILE: Rapid Deportations That Bypass the Courtroom 61 Case: 14-50393, 02/07/2017, ID: 10304776, DktEntry: 43-2, Page 64 of 203 she suffered in Los Angeles, was pending when she left. Returning home to California, she presented herself at the San Ysidro Port of Entry and was issued an expedited removal order, even though the interviewing ofﬁcer noted that she had a pending U visa.348 Maria’s daughter, Claudia, who lives in California, went to visit her in Tijuana after Maria was released from U.S. custody. Claudia recalls, “[Maria] was depressed and crying. Only she knows how she felt when she was in there. . . . They were being pressured to sign, and people were saying, ‘If you say you are afraid, you will stay here for 3 months and not be able to talk to your family.’ So she got afraid. All she wanted at that moment was to be released.”349 Maria remains in Mexico, separated from her family in the United States. After almost 15 years in the United States, Braulia was deported without a hearing to Guatemala, where her son was killed. Then his murderers raped and shot her. Spanish. The ofﬁcer said well you’ve got to sign and I said no. The ofﬁcer said I don’t care if you sign….look, I already signed for you.352 Braulia A. is a mother of ﬁve (including four U.S. citizens) from Guatemala who entered the United States without inspection in 1991. She left Guatemala with her son, ﬂeeing Braulia was detained at CCA Otay Mesa Detention Facility violence from both police and gangs: her father had been (an ICE detention center) and then deported with an murdered and she had been raped by police ofﬁcers as a expedited removal order. Almost immediately upon her teenager. Braulia moved to California, married, started ez arrival in Guatemala, Braulia says,7 began to receive she a family, and sent money to her mother in Guatemala. anch , 201citizen children joined -S threatslta gangs. Braulia’s U.S. 2 Starting in 1999, the money attracted the attention of gangs a from ru Perin Guatemala ary she was ﬁrst deported, but it her when that demanded money from Braulia’s mother. In 2005, a v. Feb USA ed on became too dangerous, so she sent them home quickly friend of Braulia’s recommended that she visit in a dentist v te Cnot d 9 on her hi to California: “They were being followed. People were in Tijuana. Not realizing that she could i travel3 arc calling and threatening the children, saying offensive 503 Employment Authorization Document (“EAD card”), . 14-English, went to o or things about my 12-year-old girl. Gangs were shooting at Braulia, who is not literate in N Spanish our front porch.”353 Her nephew, who was the head of a Tijuana for the day. When she called her husband before gang and was in prison for the murder of a family, started returning to California, and he explained that she could demanding conjugal visits from Braulia (his aunt) and not travel on her EAD card, Braulia says she panicked and sending her threats. Finally, she ﬂed to Mexico; but around attempted to reenter by hiding in a truck.350 Arrested at the that time in 2006, her oldest son, Wilmer, who was living San Ysidro Port of Entry, Braulia told immigration ofﬁcers undocumented in California, missed her too much and that she lived in the United States and was afraid to return attempted to rejoin her in Guatemala. to Guatemala, given the threats against her family. The ofﬁcers wrote on her record of sworn statement that she Recalls Braulia, “I said just come to Mexico and we will had no fear and that she had gone to Tijuana for a party, 351 ﬁgure it out. He was going to come, but a week before his both of which Braulia denies: birthday he was killed [in Guatemala].” Devastated, Braulia returned to Guatemala for her son’s funeral and begged the The ofﬁcers said, “We don’t care if you are killed Guatemalan police to investigate his murder. Braulia says there. Don’t even think about coming back or that the ofﬁcers told her it was a police bullet that killed we will put you in jail for a long time.” They just her son and demanded money to investigate further. Days said, “You don’t have a right to anything, you later, Braulia herself was kidnapped, shown photos of her are a criminal, you are worthless.” The ofﬁcer murdered son, gang-raped, her eyes and mouth taped, shot was reading some papers and wanted me to sign nine times, and left for dead. It has since been conﬁrmed them. I said I can’t read or write in English or 62 AMERICAN CIVIL LIBERTIES UNION Case: 14-50393, 02/07/2017, ID: 10304776, DktEntry: 43-2, Page 65 of 203 by police and media sources that her nephew, who was released from prison, was behind the murder of her son and the rape and attempted murder of Braulia.354 With help from her family, Braulia eventually returned to the United States in October 2007 after a difﬁcult journey through the mountains in Guatemala and then across Mexico. Even after returning to the United States, she says she continued to be harassed and threatened by gangs in Guatemala: “They called me at my home here in San Diego and they asked for money. They told me that if I did not give them money they would cut off my sister’s or my nephew’s head.”355 Several years later, in September 2011, immigration ofﬁcers came to Braulia’s home looking for someone else and took her into custody when they realized she had a prior order of removal. After a few weeks, she was referred for a reasonable fear interview and remained in detention until January 2012, when she was released on bond. She ﬁnally won relief under the Convention Against Torture in March 2014. which his attorney believes to be an expedited removal order. Cesar remembers, “When I was taken to the facility, I was given documents to sign and was told I would be taken to see a judge the next day, but instead I was taken to the border and told to go.” Cesar had not been back to Mexico in 14 years.356 Cesar’s inclusion in expedited removal is not exceptional even though it was unlawful given his long residence in the United States, but it may not be unique. A report published by the ACLU of New Mexico showed that many longtime undocumented residents are swept into these deportation processes, which deny them a hearing, not when they attempt to enter the United States but when arrested by Border Patrol in their “border” communities.357 For example, 16-year-old Sergio was picked up by Border Patrol on his way to harvest lettuce 70 miles from the border; he had lived in the United States for eight years (since he was eight) but was deported that same day and separated from his widowed mother and two younger siblings.358 z As discussed above, since the expedited removal procedure che 7 -San y 2, 201 was expanded horizontally and vertically across the entire ta r ral border (within 100 miles of the U.S. international border), P v. e n Februa A S even individuals who are not at a port ofd in and may noted o entry U e expedited removal. Even beyond the border area, however, immigration t rchiv have left the country can be swept Ci by up 93 a 503 ofﬁcials have deported longtime residents of the United Under the regulations, individuals who have been in the . 14- be referred to an No States without giving them the opportunity to see a judge United States for 14 days or more should through administrative voluntary departure (or “voluntary immigration judge, but our investigation suggests that in return”), stipulated orders of removal, or administrative many cases, Border Patrol ofﬁcers are not asking individuals orders of removal (“238b”). While 238b is supposed to be when they ﬁrst came to the United States. As a result, some used exclusively against individuals convicted of certain individuals who have been in the United States for many enumerated offenses, voluntary departure can be—and years without leaving are also deported without a hearing. is—applied to anyone, including individuals who would otherwise be eligible for discretionary relief such as nonFor example, Cesar came to the United States in 2000 LPR cancellation of removal. and has a U.S. citizen stepdaughter whom he has raised since she was ﬁve. In early 2014, Cesar, who worked as a landscaper and had lived continuously in the United States for 14 years, was stopped by local police in Weslaco, Texas, a. Voluntary Return while driving with a colleague to a waste management facility. Weslaco is considered part of the border zone While voluntary return is not considered a “formal” because it is within 100 miles of the U.S.-Mexico border. removal order like an expedited order of removal or a The police ofﬁcers who stopped Cesar did not charge him 238b order, it comes with consequences that may be just or his colleague with any trafﬁc violation; rather, they as severe, particularly for individuals who have been living called CBP to arrest the two men. After many hours of in the United States without authorization for over six months and who are subject to bars on reentry. It may, interrogation and threats by CBP, Cesar signed a form, 2. Apprehended and Deported in the Interior of the United States AMERICAN EXILE: Rapid Deportations That Bypass the Courtroom 63 Case: 14-50393, 02/07/2017, ID: 10304776, DktEntry: 43-2, Page 66 of 203 however, have beneﬁts for some individuals, as it preserves the ability to apply for relief in the future.359 attorney or her husband. Instead, she was presented with a voluntary departure order: Voluntary return is supposed to be given only at the request of the non-citizen after he or she has been made aware of all its consequences—notably, that a person who accepts voluntary return cannot make any claims for relief.360 For individuals who would be eligible to apply for relief from removal and might be able to formalize their status in a hearing, voluntary return is often not to their beneﬁt, and it appears that this information is not communicated to individuals by immigration enforcement ofﬁcers.361 Moreover, although voluntary return is not a formal removal order, in practice it has many of the same consequences. In particular, individuals who have lived in the United States for more than one year without authorization are subject to a 10-year inadmissibility ban on reentry;362 individuals who have lived in the United States for over 180 days but less than one year are subject to a 3-year ban.363 For parents of U.S. citizen children, the separation is often longer because a person applying for a waiver and to adjust status must wait until the “qualifying relative” is 21 years of age. I told [the ICE ofﬁcer] I wasn’t going to sign because I wanted to see the judge. But he was really mean, and he kept insisting and insisting. When 3 hours had passed, I told them I wasn’t going to sign anything until my husband arrived so he could show the papers [that showed] we were applying for my status. And then the ofﬁcer came back and said your husband came and showed me the papers, and the papers he showed me are useless to me. I told him I wanted to talk to my husband. He said, “You are not going to talk to your husband. What you are going to do is sign this salida voluntaria or you are going to jail.” That is when I signed because they said there were bad people in jail who could do something to hurt me.365 Although the voluntary return statute allows up to 120 days for the individual chez the United States, 24 hours later, leave an toto , to 17 without a-S 2 t the chance ryspeak20her children or husband ral Peattorney, Veronica was taken to Nuevo Laredo, Mexico. rua v. or eb USA ed on F to apply for a waiver so she can return to her She is trying n Veronica V. came to the United States when d i was 19. She iv Cite she93 arch children sooner, but for now, Veronica remains in Mexico, married a U.S. citizen and has three U.S. citizen kids, all of 503 separated from her young daughters. Says Veronica, “Every whom live in Texas; she had lived in 14 United States for . the o N day I remember the day that they stopped me. It’s been a 20 years. In 2013, Veronica and her husband were driving year and it hurts a lot. My family, my husband, we have to a hardware store near San Antonio when they were always been very close. It hurts me so much to be separated pulled over by local police who asked her for identiﬁcation. from them.”366 Veronica, who was the passenger, did not have any documentation with her, and the police ofﬁcer asked if Emmanuel M., a 25-year-old from Mexico, came to the she was undocumented. She explained that she was in the United States as a young child and lived in California process of applying to adjust her status, but the ofﬁcer continuously for approximately two decades. In 2012, called ICE, which came to the scene two or three hours as he was leaving his house in San Diego for work, he later. “I asked the immigration ofﬁcer if this was correct, was stopped by ICE ofﬁcers. “I kept on asking what was what the police ofﬁcer had done. He said, ‘No, because you happening and they said they could not tell me.”367 The weren’t driving, you have no criminal history, and he has ofﬁcers gave him several forms to sign, which turned out no reason to have done this,’” Veronica recalls, “but since to be voluntary return, and said he would be released. the police ofﬁcer had called, [the immigration ofﬁcer said] Emmanuel says, “I was happy because I thought I was going he had to take me in.”364 Veronica’s husband immediately to leave. I signed, they put me back in the cell, and then a called an immigration attorney and went home to collect few hours later they took me to Tijuana.”368 Emmanuel had the paperwork showing that Veronica was applying for not been back to Mexico since leaving as a small child. After immigration status. Although the attorney immediately two years, Emmanuel says he missed his family too much (“I’d never been this far away from them,” he says) and contacted ICE, Veronica was not allowed to speak to the 64 AMERICAN CIVIL LIBERTIES UNION Case: 14-50393, 02/07/2017, ID: 10304776, DktEntry: 43-2, Page 67 of 203 tried to cross back to the United States for Thanksgiving but was arrested, detained, and driven to Arizona to be summarily deported. He now works for a call center in Tijuana, Mexico, and is applying for a U visa from Mexico (he was the victim of a violent hate crime prior to his deportation). “I would love to go back,” he said. “My whole family is there.”369 if deported to Mexico, and because she had three young children in the United States, one of whom was scheduled for surgery at a U.S. hospital. Instead, the complaint alleges, DHS ofﬁcers coerced her to sign a voluntary departure form and dropped her at the bridge to Reynosa, Mexico. Her ex-partner murdered her soon after her return to Mexico.370 Laura S. came to the United States from Mexico as a teenager with her young son and was murdered soon after her deportation to Mexico. According to a complaint ﬁled on behalf of her mother and children, Laura had two children with an increasingly violent and abusive man while living in Texas. Laura was able to get a protection order against him from local police in Texas, but he continued to threaten her until he returned to his native town in Mexico, according to Laura’s family’s attorney, and joined a drug cartel. In June 2009, several years after Laura ﬁrst came to the United States, Laura and her cousin were stopped by police for an alleged trafﬁc violation; Laura was turned over to DHS. Laura begged the ofﬁcers not to deport her, as she feared being attacked by her ex-partner Immigration attorney Marisol Pérez says she and her colleagues routinely see cases where the individual was coerced into signing a voluntary departure order without understanding its consequences. Immigration ofﬁcers, she says, tell people “either you sign or you are going to jail.” Even individuals who already have attorneys are vulnerable when threatened, in the absence of a lawyer, with jail: “We don’t have control over what happens when we are not there, in the back room. The ofﬁcers should be giving rights advisals . . . Instead, they tell them, you want your rights, you are going to go to jail.”371 No. In June 2013, the ACLU ﬁled a lawsuit in Southern ez California challenging the coercive use of voluntary anch , 2017 a-S departure and immigration ofﬁcials’ eralt bruary 2 P failure to apply the necessary v. e USA ed on F procedural safeguards.372 For example, in ited rchiv C the lawsuit alleges that ofﬁcers gave 3a 5039 false information to non-citizens 14about their ability to stay in the United States and their ability to apply to return once they were in Mexico, and also used a misleading form that failed to notify individuals that taking voluntary departure meant they cannot apply for relief and lose the procedural protections that apply in court. Named plaintiffs in this lawsuit include: Yadira Felix, with her grandmother Candelaria Felix, at their home in San Diego, California. Yadira, who has mental disabilities, was effectively kidnapped by CBP and left in Mexico. Isidora Lopez-Venegas, the mother of an autistic U.S. citizen son, who was arrested by CBP and told that if she refused to sign for voluntary departure, she could be detained for several months, thereby separating her from her autistic son. The agents further misinformed Ms. AMERICAN EXILE: Rapid Deportations That Bypass the Courtroom 65 Case: 14-50393, 02/07/2017, ID: 10304776, DktEntry: 43-2, Page 68 of 203 Lopez-Venegas that it would be easier for her to obtain legal status through her son once in Mexico; in fact, her son’s age made this impossible for years to come. She and her U.S. citizen son had to leave the United States after she was coerced into signing the form. Yadira Felix, appearing in the case through her grandmother, Candelaria Felix, has signiﬁcant cognitive disabilities. Yadira Felix had lived in the United States for over 20 years when Border Patrol agents approached her at a bus stop, drove her to the U.S.-Mexico border, and pushed her, crying, across to Mexico. Marta Mendoza, appearing in the case through one of her six U.S. citizen daughters, Patricia Armenta, has bipolar disorder, as does her 16-year-old son, who depends on Ms. Mendoza for support. She had lived in the United States for over 30 years when police arrested her on suspicion of shoplifting and took her to a jail where ICE ofﬁcers coerced her into signing the voluntary departure form. b. Administrative Removal Under 238b Individuals all over the United States can also be deported without a hearing if they have particular criminal convictions. Under the INA, undocumented individuals who are convicted of an aggravated felony373 or a crime involving moral turpitude374 are subject to administrative removal, a summary removal procedure that bypasses the courtroom and allows immigration ofﬁcers to determine that a person has been convicted of a qualifying offense and is removable. The determination that a particular conviction actually is an aggravated felony can require complex legal analysis and attention to the changing state of the law; it is a determination that can be erroneously made even by immigration judges but is exponentially more prone to error when undertaken by someone without legal training. Despite the limitations of a 238b proceeding, there are still some required safeguards that advocates report are too often ignored. In 1990, when he was eight months old, Ricardo S. A. came ez to the United anch States from Mexico with his family. The next 17 a- the ry 2, 20 tleftS United States was at his deportation at age timeal r he ua v. Pe inn FeGrowing up in Nevada, Ricardo completed the 20, 2009. br A o US eleventh grade, played soccer for his high school, worked at Ana Maria Dueñas, a mother and ed in grandmother hived it rc C night, and had planned to marry his U.S. citizen girlfriend. of U.S. citizens, who was arrested by CBP 3 a while 5039 But when he was 19, Ricardo pleaded guilty to conspiracy 4-Border Patrol waiting for a bus in California. A .1 Noonly Spanish, provided to commit burglary, a misdemeanor for which he spent two agent, knowing she spoke days in jail and was originally sentenced to probation and a her with a voluntary departure form in English; suspended sentence of one year. incorrectly told her that she could not obtain relief from an immigration judge in the United States, but On September 16, 2009, a few months after his conviction, could easily and quickly obtain legal status once in Ricardo checked in with his probation ofﬁcer and was Mexico; said she would be detained for months if arrested by immigration ofﬁcials. “I explained to them right she did not sign the form; and failed to allow her to away about my case. I said, ‘Let me see an immigration speak with an attorney or the Mexican Consulate. judge,’” Ricardo recalls.375 In fact, Ricardo did have the In August 2014, the ACLU reached a settlement with DHS, which allowed the named plaintiffs to return to the United States and their families and required DHS to make changes to its practices in using voluntary return in Southern California. However, the CBP practices and misconduct documented in Southern California are similar to those reported by immigration attorneys and noncitizens coerced to accept voluntary return in other parts of the country. 66 AMERICAN CIVIL LIBERTIES UNION right to see an immigration judge and to have a regular immigration hearing, which would have allowed him to make claims to remain in the United States or at least to avoid a formal removal order. Instead, ICE issued a Notice of Intent to Issue a Final Administrative Removal Order and claimed that Ricardo was convicted of an aggravated felony. At the time of his deportation, Ricardo’s misdemeanor conviction was clearly not an aggravated felony under Ninth Circuit law, which governed his proceedings. Case: 14-50393, 02/07/2017, ID: 10304776, DktEntry: 43-2, Page 69 of 203 However, alone in detention, without an attorney’s assistance, 20-year-old Ricardo did not know what his rights were or that he had not been convicted of an “aggravated felony.” Initially, Ricardo insisted that he wanted to see a judge and checked off the box on the notice issued by ICE, indicating that he wanted to contest the removal order. “I explained I wanted to ﬁght [my case],” recalls Ricardo. “The [ICE] ofﬁcer said, ‘You have no chance.’ It was my ﬁrst real time incarcerated and I was scared. I signed because she told me you don’t have a chance to win because of your crime. …. She made it seem like I was wasting my time, and I would be incarcerated for no reason.”376 Having been convinced by the ICE ofﬁcer— who was not a lawyer or a judge—that his crime was an aggravated felony and appeal was futile, Ricardo withdrew his request for review on September 21, 2009. family while they are unable to leave the United States while they apply for status.378 Jose Gonzalez-Segundo came to the United States from Mexico in the 1960s as a young child; he has ﬁve U.S. citizen children, all born in Texas. From the third grade, Jose worked as a fruit picker alongside his mother and never learned to write in English or Spanish. In 2001, Mr. Gonzalez-Segundo was convicted of possession of a controlled substance, which, at the time, was considered an aggravated felony in the Fifth Circuit.379 While in prison, Mr. Gonzalez-Segundo was interviewed by an immigration ofﬁcer in a mixture of Spanish and English, as the ofﬁcer spoke limited Spanish. Mr. Gonzalez-Segundo later testiﬁed that the ofﬁcer gave him only one of the two required pages and told him to sign it in order to be released. He could not read or understand the pages, nor did the ofﬁcer translate them for him. He was deported to Mexico, which he had not returned to in more than 35 years.380 However, after learning that Ricardo had been ordered deported because of his conviction, on September 29, 2009, Ricardo’s defense attorney ﬁled a motion for resentencing In both these cases, individuals in criminal custody relied to lessen Ricardo’s sentence so that it would indisputably be ez upon ICE ofﬁcers to make a 17 anch , 20complex legal determination 377 recognized that his crime was not an aggravated felony. and a-S educate 2 on their rights. The eraltalso to rto ary themperson was convictedthreshold But on September 30, 2009, Ricardo was deported back v. P question b u whether a to of an SA he d on Fe asfelony and can even be processed through U Mexico, where he had no immediate familyiand which aggravated n ve had no memory of, having left as a baby. The Nevada state Cited 93 archi administrative removal (238b) is complex, and given the court subsequently reduced Ricardo’s 503 to less than sentence complexity and the volatility of the law on what constitutes 14a year and noted that it might even have recommended No. an aggravated felony, this high-stakes question should diversion, if the immigration consequences had been not be delegated to an immigration enforcement ofﬁcer. presented at that time. All this came too late for Ricardo, But the procedure is also problematic because it denies who had been deported and remains separated from his individuals the opportunity to apply for most forms of relief, and takes place while the individual is in criminal custody and without information on his or her rights in the immigration system. Ricardo came to the United States as a baby but was deported back to Mexico when an ICE ofﬁcer incorrectly determined he had committed an “aggravated felony.” Placement in 238b is not mandatory; a DHS ofﬁcer can choose to place the individual in regular court proceedings where an immigration judge can undertake the more complex analysis as to whether a person has a conviction for an aggravated felony and whether he or she is nonetheless eligible for relief. For many non-citizens in 238b proceedings, the only available relief they will hear about is withholding of removal or CAT if the individual fears being removed to his or her country of origin. But that is not the only form of relief the individual may be eligible for: he or she may be eligible for a U or T visa or AMERICAN EXILE: Rapid Deportations That Bypass the Courtroom 67 Case: 14-50393, 02/07/2017, ID: 10304776, DktEntry: 43-2, Page 70 of 203 may not even be removable. But while immigration ofﬁcers in 238b are required to refer a person who claims fear of removal for a reasonable fear interview, they are not required to inform the individual of what other forms of relief he or she is entitled to. important procedural rights and many more opportunities to apply for relief from removal. It is unclear how often immigration ofﬁcers use this authority, but there are certainly many cases where ofﬁcers do not use their discretion to refer someone to a full hearing and instead condemn them to immediate deportation, which can have irreparable consequences for the individual and his or her family in the United States. In 1989, Ofelia H. came to the United States, where she raised her children and later adopted a U.S. citizen whose parents had been murdered (while also raising two of her grandchildren.) For years she worked at a factory using what she believed was a fake Social Security number so she could work and support her family. In 2007, it emerged that the Social Security number was real; she served eight months for identity theft. At the end of her sentence, she was transferred to immigration custody. “I was right at the exit of the jail and my daughter was waiting for me—I could see her,” she recalls. “Immigration handcuffed me without telling me why.” Ofelia was taken to a different immigration detention facility, where she was processed through administrative removal (238b) as an “aggravated felon” and deported. The forms were in English and Ofelia ez does not recall being given any information about her anch , a-S rights. After her deportation, her adopted daughter, then eralt bruary 2 four years old, joined her in Mexico but could not adjust v. P e USA ed on F to life there; Ofelia and her adopted daughter therefore in v Cited 9 time hi returned to the United States in 2008. Even at the 3 arc 503 of her deportation, Ofelia was in fact eligible for a U visa . 14- while working No after being attacked with a deadly weapon at an apartment complex, but without a lawyer and any assistance she was unable to apply and attempt to stop her removal. She is now working with an attorney and in the process of applying for a visa. Although reliance on these summary removal tools has become routine—even the default, in many circumstances—immigration ofﬁcers still have discretion to place a person in formal removal proceedings before a judge. In cases where the person has obvious equities— long residence and/or family in the United States, for example, or where it may be difﬁcult to determine whether the individual has a claim (e.g., an individual with a severe mental disability, someone with a minor conviction that may or may not be an aggravated felony, etc.)—it makes sense to allow them to present their case in court where a judge can make those critical determinations. Placing a person in formal removal proceedings triggers 68 AMERICAN CIVIL LIBERTIES UNION 2017 Case: 14-50393, 02/07/2017, ID: 10304776, DktEntry: 43-2, Page 71 of 203 and may have strong claims to protection under human rights law.382 D. CHILDREN ARRIVING ALONE “We are talking about large numbers of children, without their parents, who have arrived at our border—hungry, thirsty, exhausted, scared and vulnerable. How we treat the children, in particular, is a reﬂection of our laws and our values.” —Secretary Jeh C. Johnson, U.S. Department of Homeland Security381 In the past few years, the number of children arriving in the United States to seek protection (and, in some cases, to be taken care of by family) has risen dramatically, with an estimated 90,000 arriving in the United States in FY 2014.383 Recognizing the swelling numbers of children arriving alone and the violence they are ﬂeeing, President Barack Obama declared the unfolding crisis to be a humanitarian situation; 384 but at the same time, the response from the Obama administration and many in Congress has been to seek to dismantle, rather than reinforce, protections for non-citizen children seeking help in the United States. Being arrested, detained, interrogated, and deported by an immigration ofﬁcer can be a harrowing experience. For children who come to the United States alone after Arrival at the U.S. border is not the end of the story. While a dangerous journey during which many are victimized, Central American children are supposed to be brought the need for additional protections when they arrive before a judge, in some circumstances they are instead is acute. In recent years, the disastrous human rights removed without a hearing, in violation of federal law,385 situation in Central America—in Honduras, Guatemala, and seemingly without consideration for the humanitarian and El Salvador, in particular—has been reﬂected in the catastrophe into which they are being returned. For escalating number of children arriving in the United States. z Mexican children, e is the 17 quo: unless (and even anchthis , 20 status As recently documented by the United Nations High a S additional if) theythe majority of eralt meetuary 2 screening criteria,Mexico without Commissioner for Refugees, the majority of these children P v. Mexican br are quickly returned to echildren F A are escaping violence, lawlessness, threats, and extortion, d on the opportunity to see a judge. As in US ve Cited 93 archi 503 . 14No such, these children are often treated not as kids in need of protection, but as a problem to be removed. 1. Legal Background Spencer Platt/Getty A child and her family in their gang-plagued neighborhood in Tegucigalpa, Honduras. For years, unaccompanied children386 were regularly turned away at the U.S. border; if they did make it inside the United States and were apprehended by immigration ofﬁcers, they were detained by the Immigration and Naturalization Service387 in adult detention facilities.388 In 1997, after over a decade of litigation, the Flores v. Reno settlement agreement (“the Flores settlement”) created nationwide standards on the treatment, detention, and release of children.389 The agreement requires the federal AMERICAN EXILE: Rapid Deportations That Bypass the Courtroom 69 Case: 14-50393, 02/07/2017, ID: 10304776, DktEntry: 43-2, Page 72 of 203 government to provide unaccompanied children with basic necessities such as drinking water and medical assistance; to keep children separated from non-related adults; and to release children from immigration detention as soon as possible. If no release option is immediately available, children must be placed promptly in the “least restrictive setting” that is “appropriate to the minor’s age and special needs.”390 agreement,397 by taking kids out of adult detention facilities and providing them with necessary social services, this system is signiﬁcantly more rights-protective than the previous system and the existing adult system. These humanitarian protections for children are necessary in and of themselves, given children’s inherent vulnerability and susceptibility to abuse and coercion.398 But these protections have also proved instrumental in safeguarding children’s legal rights in court. Detention has a strong coercive effect, so removing children from detention as soon as possible is important, not just to avoid unnecessary harm and trauma, but also to protect their rights to seek relief. The Flores settlement marked the beginning of the U.S. government’s recognition (now unfortunately in decline) that unaccompanied children are entitled to due process rights. In particular, all unaccompanied children must be given (1) Form I-770, Notice of Rights and Final Disposition, which informs children of their rights The experiences of Kevin G. and his brother Javier and options; (2) a list of free legal services; and (3) an illustrate the negative impact of detention on a young 391 explanation of the right to judicial review in court. A non-citizen’s ability to pursue asylum, even when they subsequent lawsuit, Perez-Funez v. INS, also established that have a bona ﬁde claim. Kevin G. ﬂed gang violence in unaccompanied children must be advised by DHS of their Honduras, leaving home for the United States at age 16 right to a hearing before they are presented with a voluntary and traveling by himself for most of the journey. “I would 392 departure form. Children from Mexico and Canada must not want my brothersez to travel like that; I don’t want them be given the opportunity to consult with an adult friend nchdid,” 2017 to go througha -S what Iy 2,he told the ACLU.399 He was or relative, or a legal services provider, before accepting lta arrested Pera crossing into the United States and, as a minor ruar voluntary departure; this consultation is a mandatory A v. FebAmerica, placed in removal proceedings S fromn o Central prerequisite for children from countries other thanU d in rch and echildrenMexico ived housed in a shelter in Los Angeles. His brother Javier, Cit a and Canada.393 Once in immigration court, 3 can who had been attacked with a machete by a gang—the 5039 apply for several forms of relief from removal, including . 14(SIJ) Status.394 same gang that threatened Kevin—when he refused to No asylum and Special Immigrant Juvenile join them and participate in murders, followed Kevin in 2012; Javier was 23. As an adult, Javier was placed in a In the years following Flores and Perez-Funez, Congress detention center where he spent several months waiting developed additional safeguards for unaccompanied for an interview with an asylum ofﬁcer. Finally, Kevin says, children apprehended and detained in the United States. his brother decided to accept deportation rather than wait Notably, the William Wilberforce Trafﬁcking Victims Protection Reauthorization Act of 2008 codiﬁed that children arriving alone in the United States cannot be expelled through expedited removal,395 and the Homeland Security Act of 2002 transferred responsibility for unaccompanied children from the INS to the Ofﬁce of Refugee Resettlement (“ORR”) within the U.S. Department of Health & Human Services (and thus outside of the newly formed Department of Homeland Security).396 This move provided additional protections for children awaiting an immigration hearing. Although human rights advocates have continuously found that the agencies that apprehend kids (DHS) and hold them during their hearings (ORR) have failed to fully implement the Flores settlement Sixty-four percent of Mexican children coming alone to the United States have international protection claims according to the UNHCR. 70 AMERICAN CIVIL LIBERTIES UNION Case: 14-50393, 02/07/2017, ID: 10304776, DktEntry: 43-2, Page 73 of 203 in detention; Kevin says that soon after Javier returned to Honduras, he was murdered by the gang he had originally ﬂed.400 The safeguards that the Flores settlement, Perez-Funez, and the Homeland Security Act initiated for unaccompanied children—diversion from detention and the right to a hearing—are essential to ensure that children like Kevin are able to present their cases and defend their rights. But these protections are triggered only when (1) a child is correctly identiﬁed as an unaccompanied minor and (2) the border ofﬁcers who apprehend and question the child follow the law and ensure he or she is referred to the alternate ORR system and placed in formal removal proceedings. Unfortunately, this is not always the case. 2. Accessing the Protections of the System Somers found 56 percent of repatriated Guatemalan children were misidentiﬁed as adults, detained in adult U.S. facilities, and deported without a hearing. either due to their appearance or their own misstatements. For example, Maria, a 15-year-old Mexican girl deported to Agua Prieta, Mexico, was trying to reunite with her father in the United States when she was apprehended by Border Patrol; she told the ofﬁcers that she was 19 years old “because I thought they would deport me easier and quicker [as an adult].”404 Mexican immigration staff in Nogales, Sonora, Mexico, reported that they had frequently seen kids ez anch to ,be2017while in CBP custody.405 whotwere presumed 2 adults l a-S While the ORR system is designed to be child-centered, the Border Patrol stations are not.401 Even as decades of litigation eventually removed children from long-term detention in adult facilities, children continue to face ry ra abuse and threats while in short-term adult detention. In . P v e n Februa A June 2014, a complaint to the DHS Ofﬁce for Civil Rights ed o 2012, attorney Aryah Somers interviewed in US hiv In ed General unaccompanied children who had been repatriated to CInspector 3 arc and Civil Liberties and the Ofﬁce of it 39 Guatemala. In one three-week observation period alone, (“CRCL/OIG complaint”), ﬁled by4-50 organizations several o. 1116 cases of abuse Somers found that 34 of the 61 unaccompanied children N including the ACLU, documented who were repatriated had been classiﬁed as adults and, by CBP against children, ages 5 through 17, including 402 consequently, had been detained in adult detention shackling, rape, death threats, and denial of medical care. facilities in the United States; two of those children, Ms. The investigation is ongoing, but the complaints raised 403 Somers said, “were immediately identiﬁed as potentially are not new. It should come as no surprise, then, that eligible for Special Immigrant Juvenile Status.”406 Some some children, like adults, may forfeit their rights while in children claimed to be 18 or older out of “fear, pressure CBP custody—for example, by saying they are adults, have from immigration ofﬁcers, misinformation from the coyote no fear of being deported, or want to be returned to their or pollero that children are treated worse than adults in the country of origin. In such an environment, it is unlikely U.S., and a belief that they would be detained until their that children would feel comfortable disclosing sensitive 18th birthdays.”407 Misidentiﬁed as adults, these children information about their lives, their families, or the violence were not only detained in adult facilities, in violation of they have ﬂed. federal law, but were also deprived of the opportunity to The protections for children traveling alone are not apply for humanitarian protections and other forms of automatically activated; often, children must claim those relief from deportation, or even to see a judge or consult protections by volunteering personal information about with a lawyer.408 themselves—starting with their age—without knowing It is unclear to what extent CBP ofﬁcers are trained in what the beneﬁts or consequences are of providing that information. Some children will be misidentiﬁed as adults, the signiﬁcance of the procedural protections in place AMERICAN EXILE: Rapid Deportations That Bypass the Courtroom 71 Case: 14-50393, 02/07/2017, ID: 10304776, DktEntry: 43-2, Page 74 of 203 ez anch , 2017 a-S eralt bruary 2 .P SA v d on Fe in U hive A Border Patrol agent with Alejandro, 8, who traveled by himself across the Rio Grande. ited C arc 393 -50 o. 14 N for children or why a valid waiver of those rights is so in the United States for three weeks when he was arrested Jennifer Whitney/The New York Times/Redux signiﬁcant. But in some cases, it appears that border ofﬁcials are deliberately interfering with those rights. For example, according to the CRCL/OIG complaint, CBP accused a 16-year-old of lying about his age, then strip-searched him and threatened that he would be made “the wife” of a male detainee for lying about his age.409 In another case documented in the same complaint, CBP ofﬁcials conﬁscated a 16-year-old’s birth certiﬁcate, and instead of immediately referring him to ORR, attempted to force him to sign a form that he believes was for his deportation; when the child attempted to read the form, “ofﬁcials tore up the document, offered a new one, and again told him to sign.”410 Even when children are properly identiﬁed as minors and speciﬁcally request to see a judge, they are not always referred into ORR care and to the immigration court for a hearing. Deyvin S., a teenager from Honduras, had been 72 AMERICAN CIVIL LIBERTIES UNION by Border Patrol ofﬁcers while walking near a checkpoint in Brownsville, Texas.411 He says he repeatedly asked if he could speak to a lawyer and that he wanted to see a judge. Deyvin says the ofﬁcers told him “it was impossible that a judge or lawyer could do anything for me.”412 While legal developments since the 1980s ensure that many children will be referred for a hearing, regardless of what happens in their interview with border ofﬁcials, for Mexican children this initial interaction with Border Patrol is the most consequential. Unlike children from “noncontiguous countries,”413 Mexican children are not automatically referred to an immigration judge and can be returned “voluntarily” upon apprehension in the border area. For Mexican children, then, this ﬁrst interaction with border ofﬁcials can make a decisive difference, leading to either the chance to be heard in court or immediate repatriation. Case: 14-50393, 02/07/2017, ID: 10304776, DktEntry: 43-2, Page 75 of 203 met, and the CBP ofﬁcer is convinced the child has no potential asylum or trafﬁcking claim and also has the capacity to consent to his or her return to Mexico, may Mexican children are not exempt from the violence and the unaccompanied Mexican child be repatriated without other international protection concerns that plague a hearing.417 This places considerable authority in the children in Central America; a recent UNHCR study, which hands of the CBP ofﬁcer, who must screen the child and included interviews with 102 unaccompanied Mexican determine whether or not he or she can be removed. To children, found that 64 percent had potential international ensure that eligible Mexican children are able to beneﬁt protection needs, particularly from violence and coercion 414 from the TVPRA’s protections, the statute requires that to assist smugglers. Similarly, Refugees International recently recorded that in Mexico, violent activities such as “[a]ll Federal personnel . . . who have substantive contact kidnappings and extortions are at “their highest levels in with unaccompanied alien children” must receive more than 15 years,” and found that children in particular “specialized training,” including training in “identifying have been victims of kidnapping, assassination, extortion, children who are victims of severe forms of trafﬁcking 415 and disappearances. in persons, and children for whom asylum or special immigrant relief may be appropriate.”418 But fundamentally, In the years after the Flores settlement and the Homeland the TVPRA as written presumes that an unaccompanied Security Act of 2002, despite heightened safeguards for Mexican child cannot be immediately returned to Mexico unaccompanied kids, Mexican children continued to be and is in a vulnerable position; the required screening routinely turned around at the border, just like most adults, places the burden on the examining ofﬁcer to determine without any evaluation of the risks they face if repatriated. that a child can safely be repatriated and is able to Partly in response to this ongoing problem, Congress understand that decision. In practice, however, the burden z passed the William Wilberforce Trafﬁcking Victims is on the child che up and7 heard while in detention anto speak, 201 be S Protection Reauthorization Act of 2008 (TVPRA), which and a- being interviewed by a law enforcement ofﬁcer. eraltwhilebruary 2 strengthened some of the Flores and HSA provisionsA v. P For Mexican children, removal has become the default. on n Fe US children’s rights in custody while also adding additional ved o ed in C children. 3 archi screening requirements for Mexican it 3. Mexican Children and the TVPRA 39 4-50 .1 The TVPRA requires that Noborder ofﬁcer who any 4. The TVPRA in Practice apprehends an unaccompanied Mexican child must interview the child and conﬁrm that he or she (i) is not a potential victim or at risk of trafﬁcking, (ii) has no possible claim to asylum, and (iii) can (and does) voluntarily agree to go back home.416 Only if all three criteria are UNHCR found that most interviews involved “merely perfunctory questioning of potentially extremely painful and sensitive experiences for children.” When the TVPRA was introduced, advocates expected a deluge of unaccompanied Mexican kids into temporary shelters within the United States; in fact, this never happened. According to CBP statistics on FY 2013 apprehensions, 17,240 Mexican unaccompanied children were apprehended at the border;419 similarly, ﬁgures from ofﬁcial Mexican immigration sources estimate that in 2013, 14,078 Mexican unaccompanied children were repatriated from the United States.420 And yet, during the same time period, ORR reported only 740 Mexican unaccompanied kids in its custody.421 This ﬁgure reﬂects all Mexican children in ORR custody, including those apprehended far from the border anywhere in the United States, and so likely signiﬁcantly overestimates the number of Mexican unaccompanied children in ORR custody. Even so, these ﬁgures suggest that the overwhelming majority of Mexican children arriving alone—around 96 percent—are turned around when CBP apprehends them at the border. AMERICAN EXILE: Rapid Deportations That Bypass the Courtroom 73 Case: 14-50393, 02/07/2017, ID: 10304776, DktEntry: 43-2, Page 76 of 203 UNHCR has similarly estimated that 95.5 percent of Mexican children are returned without seeing a judge.422 Thus, despite the additional protections the TVPRA was supposed to enable, Mexican unaccompanied children continue to be turned away from the United States. The additional screening requirements operate like a sieve, creating procedural and substantive hurdles for Mexican children to overcome before they can get before an immigration judge and win relief. At the substantive level, Sam Frost under the TVPRA, a Mexican child’s Tijuana, Mexico. Stenciled on the Mexico side of the fence between the United States right to a hearing is triggered only and Mexico are families being lifted to freedom by balloons. if he or she presents an asylum- or trafﬁcking-based claim, or if the government chooses to pursue a screening. Of the 11 Mexican unaccompanied children the formal removal order (as opposed to voluntary return). ACLU interviewed in Sonora, Mexico, ranging in age from ez Other valid claims for relief will not get a Mexican child 11 to 17, only anch one, Hector, said that he had been asked any 2017 -S taabout his ry 2, returning to Mexico. Hector arrested in the border zone into court. For example, Arturo, questions eral brua fear of a 15-year-old from Tabasco, Mexico, was attempting to A v. P recalls: “I asked if there was any beneﬁt and the migra said, n Fe US d othere is probably no beneﬁt. You just crossed through n come to the United States and reunite with his imother ted by archive‘No,desert so you’re going to be deported.’”425 Brian, an and two U.S. citizen siblings when heCi caught 3 DHS was the 39 ofﬁcers in Arizona. His father had abandoned him in unaccompanied child from Nogales, Mexico, whose father 4-50 .1 N me Mexico: “There is no reason for o to stay [in Mexico] is in Tucson, said he had been trying to enter the United if my dad doesn’t want me here.”423 Because he had been States since age 14 but in his three attempts, he had never abandoned by at least one parent, Arturo might have been asked about his fear of returning to Mexico or if he qualiﬁed for Special Immigrant Juvenile status (SIJ) and, wanted to see a judge.426 if successful in court, been able to remain in the United States and one day adjust his status. But even if Arturo Even when Mexican children attempt to explain their need were eligible for SIJ, he would not have the opportunity to for protection, in at least some instances border ofﬁcials present that claim because it does not trigger a right to go apparently refuse to believe them. For example, 16-year-old 424 to court and be heard under the TVPRA. By contrast, M. E. is a Mexican girl who sought asylum in the United non-Mexican children arrested at the border with the exact States after her family received multiple death threats and demands for money from a gang, which she believes led same claims are not pre-screened by CBP and will have the to her brother’s disappearance in early 2014. M. E. recalls, opportunity to raise any claim for relief in their removal “Then they said that if we could not negotiate with money proceeding. As such, the TVPRA screening effectively we may as well buy bulletproof vests for the whole family narrows the grounds of eligibility for unaccompanied because they were going to kill us.”427 According to what Mexican children to enter and remain in the United States. M. E. related to her attorney, and as explained in the CRCL/ Yet even children who are eligible under the TVPRA to OIG complaint, an immigration ofﬁcial asked M. E., enter the country and see a judge are routinely denied that “What right do you have to come to our country?” When opportunity when CBP ofﬁcers fail to conduct the TVPRA M. E. tried to explain the danger she ﬂed, according to her 74 AMERICAN CIVIL LIBERTIES UNION Case: 14-50393, 02/07/2017, ID: 10304776, DktEntry: 43-2, Page 77 of 203 statement and the CRCL/OIG complaint, “the ofﬁcial told her she would not get through with her pinche mentira [fucking lie] because he knew how to detect a liar like her.”428 M. E. continually returned to the U.S. border to seek asylum and was returned to Mexico multiple times before she was ultimately allowed into the United States and transferred to an ORR shelter.429 afraid or hesitant to volunteer information to an armed U.S. law enforcement ofﬁcer, while in detention and without any assistance (and often without an interpreter), is unsurprising. And yet, this is the context in which children, arriving alone, are required to vindicate their rights or else, if Mexican, be quickly deported. Responding to proposals to put Central American children through the same screening and summary removal system as Mexican children are, Lawrence Downes of The New York Times wrote, Beyond requiring afﬁrmative screening for asylum and trafﬁcking claims, the TVPRA requires that immigration ofﬁcials ensure that children voluntarily choose to go There are several reasons why this is a terrible back to the Mexico, but children interviewed by the idea. It starts with handing the responsibility for ACLU did not appear to have been subject to this inquiry. humanitarian interviews to a law-enforcement Jesús, a 16-year-old unaccompanied Mexican child, said, agent with a badge and a gun, whose main job is to “They just put [the form] in our face and said sign. They catch and deport illegal border crossers, and who wouldn’t give us any information. . . . They didn’t give us may not even speak Spanish. This is not the person [the] opportunity to ask anything; they just called us up to you want interviewing a traumatized 15-year-old 430 sign.” Hiram, 11 years old, and his brother Pepe, 16 years Honduran girl to ﬁnd out whether the abuse old, said they had not been asked anything except their she endured at home or the rape she suffered en 431 age when Border Patrol agents detained them. Federal route qualiﬁes her for protection in the United regulations and the Flores settlement further require that States. . . . It would be criminal to subject Central ez any child under the age of 14 be read the I-770 form in a American refugees to the17 system. They need anch , 20 same a-S 2 language that he or she understands.432 This did not appear safe eraltlawyersrand victim advocates, clean, 436 shelter uary to be heard in court. P v. to take place for Hiram. and the chance eb F A on US ed in archived In addition to ACLU interviews with unaccompanied children Cit In interviews conducted by the ACLU, it was clear that the 393 children had no idea what rights—if any—they had, or conducted in Sonora, Mexico, two thorough investigations by 4-50 1 No. what was happening in the process. Similarly, in interviews the UNHCR and Appleseed into TVPRA compliance across by the Center for Public Policy Priorities (CPPP) with children who had been turned away at the U.S. border, some children did not even understand that they had been in the United States when arrested and removed.433 Mexican immigration staff told the ACLU that in some cases, Central American children claim to be Mexican, not knowing that there are additional protections in place for Central American children at the moment.434 In its study, CPPP regularly encountered such children in Mexican shelters; one child, Daniel, had ﬂed gang violence in Honduras only to be quickly turned around and sent to Mexico by CBP without being asked about his fear of returning.435 In the absence of a designated professional advocating for the child in CBP custody or providing any meaningful information to the child about their rights, the burden is on the child, who has just made a difﬁcult and dangerous journey, to volunteer information. That children would be the entire southern U.S. border demonstrated that screening failures are widespread and routine. The 2013 UNHCR investigation included in-person observation of TVPRA interviews at four locations and was conducted at the request of the federal government. According to this report, 95.5 percent of unaccompanied Mexican children apprehended by CBP are returned across the border—not because they did not have claims but because “CBP’s practices strongly suggest the presumption of an absence of protection needs for Mexican UAC [unaccompanied children].”437 This is the exact opposite of what the TVPRA was designed to do—namely, to put the burden on U.S. immigration ofﬁcials to show that a child would not be in danger if removed from the United States. CBP is unable to complete this mandate, however, as most agents appear unfamiliar with many of the issues AMERICAN EXILE: Rapid Deportations That Bypass the Courtroom 75 Case: 14-50393, 02/07/2017, ID: 10304776, DktEntry: 43-2, Page 78 of 203 they are screening for—risk of trafﬁcking, asylum claims, and ability or inability to consent to voluntary return. The mandatory screening forms, the UNHCR found, were not only inscrutable to the children, but also to the ofﬁcers doing the questioning, often in public settings and sometimes without an interpreter. Overall, the investigation concluded, “The majority of the interviews observed by UNHCR involved what was merely perfunctory questioning of potentially extremely painful and sensitive experiences for the children. And in the remainder, the questioning, or lack of questioning, was poorly executed.”438 said they had ever identiﬁed a child trafﬁcking victim or one at risk of trafﬁcking.”440 Rather, the UNHCR found, some ofﬁcers expressed concern that they could not refer these children, who may have been coerced by gangs to participate as guides in the human trafﬁcking industry, for criminal prosecution.441 From 2009 to 2011, Appleseed interviewed children on both sides of the U.S.-Mexico border, as well as U.S. and Mexican government ofﬁcers, and found similarly that the majority of Mexican children arriving alone are quickly returned due to signiﬁcant failures in the TVPRA screening.442 Appleseed found that the few unaccompanied Mexican children who do make it into the ORR system are The “virtual automatic voluntary return” of Mexican unaccompanied children, the UNHCR found, was not due to ofﬁcer callousness but a lack of education and systematic failures to understand and implement the Mexican immigration ofﬁce on the Mexican side of the border with Nogales, Arizona. Mexicans deported from the United States to Nogales, Mexico, are interviewed TVPRA screening. According to the by Mexican immigration ofﬁcers who assist them in their journey on to their hometown. UNHCR report, CBP ofﬁcers failed Unaccompanied Mexican children are brieﬂy held here before being transferred to to ask several (or sometimes any) shelters, which contact their parents or guardians to come and pick them up. of the required screening questions; ez sometimes conducted an interview anch , 2017 a-S without an interpreter; by default, eralt bruary 2 .P interviewed children in public places SA v d on Fe about sensitive issues; had no training in U hive ited C arc in child-sensitive interviewing 393 techniques; and did not understand 14-50 No. the legal background and rationale for the screening activities. In some cases, children were told to sign forms that had already been ﬁlled out.439 Perhaps most disturbingly, the investigation found that CBP ofﬁcers do not understand what human trafﬁcking means and are unable to identify child victims of human trafﬁcking—which includes recruitment and coerced participation in the human trafﬁcking industry. Although the U.S. Department of State recognized Mexico as one of the top countries of origin for victims of human trafﬁcking in FY 2012, according to the UNHCR, “None of the agents or ofﬁcers interviewed 76 AMERICAN CIVIL LIBERTIES UNION Case: 14-50393, 02/07/2017, ID: 10304776, DktEntry: 43-2, Page 79 of 203 “A lot of [these children] should be asking for asylum in the United States; they’ve been abused before.” children caught in the interior of the United States who cannot automatically be repatriated.443 Mexican children at the border, however, are inconsistently and inadequately screened under the TVPRA: system, Mexican children face the same risks as Central American children but are quickly deported: “A lot of unaccompanied minors from Mexico share the same conditions of risk, of already being victims. They should be given a chance to prove that.”447 It is unclear what questions CBP ofﬁcials are asking kids apprehended at the border—and what questions are actually required, under the TVPRA or by CBP policy, to effectuate the screening. Indeed, DHS has not promulgated regulations on the types of questions that should be included to screen for a trafﬁcking or asylum claim, and it does not appear that DHS has developed any speciﬁc guidelines on the issue either.448 The UNHCR and Appleseed both found, however, that even the minimal forms that exist to screen for trafﬁcking or asylum claims are either not used or are so formulaic and incomprehensible to a child that their utility is marginal at best.449 Roughly half of the children we interviewed […] were not asked any questions that might elicit information about whether they have a credible fear of persecution upon return. In addition to these predictable inconsistencies in Likewise, approximately half of the children screenings and referrals, DHS lacks regulations on how stated that they were not asked any questions z to assess whether ae that would touch upon the trafﬁcking indicators 1 return anch decision to 7 to Mexico and withdraw the application for admission is “independent” or ta-S ary 2, 20 set out in the form. … Even though Form I-770 eral bru explicitly states that “no [minor] can be offered or v. P voluntary—or whether the child, who may be as young as e USA ed on F old, has the capacity to make that decision alone. four years permitted to depart voluntarily from the United iv in Cited 93 a h Explaining this prong of the TVPRA, one reporter noted States except after having been given the noticerc 503 that the question has been reduced to this: “[C]an they [of their rights],” approximately 14three-quarters No. decide on their own to turn around and go back home after of the children we interviewed […] stated that making a long, scary journey by themselves? If the Border they were not informed of their rights. Notably, Patrol agent thinks the answer is yes, off they go.”450 Wendy many children stated that they were never asked Cervantes, Vice President of Immigration and Child Rights whether they wanted voluntary departure; they Policy at First Focus, observes, “[M]ost people would argue were simply told that they would be returning to 444 that no child should make that decision.”451 Mexico. Mexican immigration ofﬁcials in Sonora, Mexico, told the ACLU that while they see approximately 20 unaccompanied children deported to Nogales every day, it is extremely rare to ﬁnd a child who has been before a judge.445 That Mexican children are rarely referred for a formal hearing does not mean that these children have no claims to relief. One Mexican immigration ofﬁcial who sees unaccompanied kids every day observed, “A lot of [these children] should be asking for asylum in the United States; they’ve been abused before.”446 Dr. Alejandra Castañeda, an investigator at the Mexican think tank El Colegio de la Frontera Norte, similarly observed that under the current The existing regulations do require that all unaccompanied children, including Mexican children, be explained their rights and provided with a Notice of Rights and Disposition (Form I-770).452 Mexican children are supposed to be given the opportunity to consult with a relative or free legal services provider prior to even being given the voluntary departure form453; in practice, this opportunity is often illusory. None of the children interviewed by the ACLU recalled being asked if they wanted to use the phone to call their families or to seek help from a lawyer; none said the I-770 form was read or explained to them; and while one was told he might be able AMERICAN EXILE: Rapid Deportations That Bypass the Courtroom 77 Case: 14-50393, 02/07/2017, ID: 10304776, DktEntry: 43-2, Page 80 of 203 to see a judge, none were told that there were options for them except to return to Mexico. CBP ofﬁcers are supposed to use Form 93, a screening form to determine if the child is a potential trafﬁcking victim or has an asylum claim. Appleseed notes this form is rarely used by CBP ofﬁcers, but even when it is used, the form questions are formulaic and are not designed to help the agent draw out the details and history necessary to determine whether the child has a claim.454 The form includes no guidance or test for whether the child has the capacity to accept voluntary return, as required under the TVPRA. Only one child interviewed by the ACLU recalled being asked anything except for their name and, in some cases, their age, and while part of this may be attributable to the language barriers, it is also likely that the nature of the questioning—when and if conducted—did not suggest to the child that this was an opportunity to share their story. “Informed consent” in this context has been reduced to a set of mechanical questions on a form that children interviewed were not given the chance to review, and which Appleseed found to be anyway facially inadequate.455 The whole rationale behind the TVPRA was to interrupt the practice of immediately returning Mexican children and to provide procedures that would ensure these children were screened for and made aware of their rights; instead, it appears that the TVPRA, as implemented by CBP, has done neither. Since the TVPRA went into effect in March 2009, Appleseed observes, Form 93 and the short accompanying memo constitute, to date, “the only signiﬁcant change in practice adopted by the CBP in response to the TVPRA.”456 Nonetheless, in Appleseed’s assessment, “[n]either the memo nor the form itself could be characterized as ‘specialized training’ that would equip CBP ofﬁcers to deal with and screen detained Mexican minors. Senior CBP ofﬁcials do not contend otherwise.”457 An undocumented immigrant apprehended in the desert near the U.S.-Mexico border is processed before being transported to a detention center on June 1, 2010, near Sasabe, Arizona. ez anch , 2017 a-S eralt bruary 2 .P SA v d on Fe in U hive ited C arc 393 -50 o. 14 N 78 AMERICAN CIVIL LIBERTIES UNION Scott Olson/Getty Case: 14-50393, 02/07/2017, ID: 10304776, DktEntry: 43-2, Page 81 of 203 The inadequacies of the forms and formal procedures place additional responsibility on the individual border ofﬁcer to adequately and sensitively question each child. Although the statute requires specialized training for ofﬁcers interviewing unaccompanied children, it is unclear what that training entails or how regularly it is provided. The training materials and any related guidance is not publicly available, and although ACLU FOIAs requesting this information have not yet been answered, responses to similar requests by Appleseed demonstrated “no indication of any specialized training.”458 environment would divulge sensitive information that would indicate that they had been trafﬁcked or otherwise feared abuse. Indeed, one CBP agent we spoke with told us that he does not expect Mexican minors to trust him or his colleagues in this “police station” environment.460 This interrogation is the only chance a Mexican child has to get into the immigration court system and be heard. But for many children, this experience is too intimidating to help them. While CBP questioning appears too short and automated to elicit or provide any meaningful information, the children interviewed by the ACLU all said they just Even where ofﬁcers are attempting to conduct the wanted to get out of detention. Once returned to Mexico, screening, many do not speak Spanish despite working they talked about being yelled at, kept in freezing and dirty with a largely Spanish-speaking population. Most children cells that they were forced to clean, and then, right before interviewed by the ACLU said the CBP ofﬁcers spoke their removal, told to sign a form (in English) they did only English and did not use an interpreter. None of the not understand before being bussed back to Mexico. They unaccompanied children interviewed by the ACLU for this described brief interviews during which most were asked report spoke any English at the time of their apprehension. only their names and age, with no real questions that could Two of the unaccompanied minors interviewed in Agua determine whether they had claims that the TVPRA was Prieta, Mexico, spoke an indigenous language and knew designed to screen ez or that would suggest the decision to for, very little Spanish.459 nch 17 return -Sa to Mexico was voluntary. The escalating number of 2, 20 ta ral ary v. Pe children arriving alone and passing through CBP detention ebru the current systemic failures, given the * * * A may F in US hived on exacerbate and focus on non-Mexican arrivals. But strain on resources C ted 93 arc For most Mexican children travelingialone, the closest they the result is that an increasing number of children who do 3with a CBP 50 get to the U.S. justice system is an interview . 14- It is unlikely that have claims to enter the United States have been and will be No ofﬁcer and a night in a detention facility. turned away and returned to danger. children arriving alone and seeking protection have any idea what their rights are, and their experience with CBP, in many cases, is unlikely to encourage them to volunteer traumatic or difﬁcult facts about their experiences—even when that information is the only key to getting into court. After examining where CBP interrogates children, Appleseed found that while the interview/interrogation setup varied, in every location the environment was uniformly distressing and antithetical to providing children with security: Everything about this experience tells these unaccompanied children that they are in a detention center run by a powerful U.S. law enforcement agency and that the alternative to repatriation is to be “locked up” in the United States. It is unreasonable to expect that most children in this AMERICAN EXILE: Rapid Deportations That Bypass the Courtroom 79 Case: 14-50393, 02/07/2017, ID: 10304776, DktEntry: 43-2, Page 82 of 203 III. AFTER DEPORTATION: THE AFTERMATH OF AN UNFAIR REMOVAL ORDER Attorney Len Saunders estimates that in his 12 years as an attorney, he has seen four or ﬁve expedited removal orders, out of hundreds, rescinded; when these orders include a lifetime ban or other signiﬁcant penalties, the lack of review and reliance on a single ofﬁcer’s sympathy is particularly troubling: “It shouldn’t be so discretionary. . . . There has to be more review. You can’t have one or two ofﬁcers deciding whether someone is going to get a lifetime bar with no review and no appeal process.”461 Attorney Greg Boos, who has represented many individuals who received expedited removal orders along the northern U.S. border, notes that “there are some supervisors who are more amenable to reviewing and recognizing the orders are defective,” but in other cases, supervisors refuse to speak with the individual getting an expedited removal order, and after the fact, getting an order removed requires signiﬁcant advocacy.462 In one case, Mr. Boos represented actor Chad Rook and was ﬁnally able to get Mr. Rock’s wrongful expedited removal order rescinded after nine months of advocacy. Mr. Rook had been in the United States for Summary expulsion procedures are extolled as a swift z a television show he was in, auditions and the che means of removing people from the United States, but an premiere of017 ,2 a-S butrupon his returnrto Canada, he was held for almost nine speed can come at the expense of accuracy. While an e alt brua y 2 .P a port immigration ofﬁcer can order a person deported in aSA v hours atFe of entry, accused of working unlawfully in U d on States, charged with material fraud, and issued matter of minutes or hours, the effects of ed deportation ivethe United that in Caitdeportationarch an expedited removal order in 2013.463 The letter vacating order can last a lifetime. In most cases, 393 Mr. Rook’s removal order stated that it had been reviewed 4-50 order—even an unlawful one—cannot be easily cured and 1 No. can be reviewed and as part of a “periodic review” but gave no further facts as to set aside. Some errors by DHS ofﬁcers why the order was rescinded or what facts were reviewed.464 corrected (albeit at signiﬁcant cost to the person seeking A. ERRONEOUS DEPORTATIONS AND THE LACK OF OVERSIGHT review); for example, a U.S. citizen unlawfully deported through expedited removal is entitled to judicial review. But for many common errors—such as an ofﬁcer’s failure to refer an asylum seeker for a credible fear interview or to verify that a person taking voluntary departure understands the rights he or she is waiving and penalties he or she accepts—there is no meaningful review before or after deportation. The lack of formal review matters because the internal or informal avenues appear to be insufﬁcient. When these orders are issued at the border, there is little time for an individual to get legal assistance and stop the process before the order is ﬁnalized. Attorneys told the ACLU that getting an expedited order rescinded by the issuing ofﬁcer is rare, even when an individual enlists an attorney and is able to identify the ofﬁcer who ordered him or her removed. 80 AMERICAN CIVIL LIBERTIES UNION Attorney Len Saunders similarly observes that some ofﬁcers are approachable and willing to discuss the circumstances of an expedited removal order—although he has only rarely seen an ofﬁcer agree to rescind an order—but that “You can’t have one or two ofﬁcers deciding whether someone is going to get a lifetime bar with no review and no appeal process.” Case: 14-50393, 02/07/2017, ID: 10304776, DktEntry: 43-2, Page 83 of 203 Sam Frost Carlos S., whom the ACLU encountered on the beach in Tijuana, Mexico, looking across the fence to the United States and holding photos of his children. He is separated from his son and daughter, who are both U.S. citizens living in California. ez anch a judge,017 evidence was presented, , 2 where anew or untrained ofﬁcers should not be allowed to issue hearing, S front of eralt inand ary 2 In the absence of these safeguards, these orders absent strong evidence to support them. v. P contested, ru weighed. eb USA ed on F orders issued by DHS ofﬁcers—the same agency removal in v C ted 93 archi In Washington State, advocates note,iadditional review and that is arresting, detaining, charging, and deporting the quality controls appear to have been -503 introduced after CBP individual—may need more review and oversight both before 14 No. Ofﬁcer Joel Helle was convicted of assaulting a Canadian and after the order has been issued. Instead, these orders are 465 teenager while off-duty.466 Subsequently, the Seattle CBP ﬁeld ofﬁce undertook a review of the removal orders issued by Mr. Helle, and the overall number of expedited removals at that port of entry has plummeted.467 In the absence of a notorious event and media attention, the same thorough examination of expedited removal orders—which, along the southern U.S. border, are routine—may be rare. But attorneys around the country agree that the lack of internal and external oversight and review is at the heart of the problem. As attorney Cathy Potter in Texas observes, “The real problem is too much power with too little review. . . . You’re out and then you’re stuck.”468 * * * Despite the speed and informality of these procedures, summary removal orders are treated as just as ﬁnal and authoritative as a deportation arrived at after a full often shielded from judicial scrutiny by explicit restrictions in federal law so that few errors can be scrutinized and corrected by an independent judicial authority.469 While federal courts stress the “ﬁnality” of a deportation order,470 for those deported without a hearing, this focus on ﬁnality comes at the expense of basic fairness. And however ﬁnal the order may be legally, from the perspective of a court deportation is not the ﬁnal event for the person ordered removed, as they continue to face ongoing bars from reentering the United States and are rendered ineligible for or deprived of status going forward. As legal scholar Rachel Rosenbloom observes, “From the perspective of the deportee, departure from the United States is not the end of the story but rather the beginning. An order of removal imposes an ongoing—potentially lifetime—restriction on a deportee, depriving her of the status she once held and barring her from reentering AMERICAN EXILE: Rapid Deportations That Bypass the Courtroom 81 Case: 14-50393, 02/07/2017, ID: 10304776, DktEntry: 43-2, Page 84 of 203 the United States.”471 Absent a meaningful procedure by which people can raise these defects and have their rights restored, some people will continue to risk apprehension, detention, and prosecution to be safe in the United States and be with their families. Many individuals interviewed by the ACLU after their deportation said they were the primary breadwinners or caregivers for their family in the United States; they told the ACLU that accepting years of separation from their families was simply not an option. While some people do A migrant shelter in Reynosa, Mexico, provides services to individuals hoping to attempt to reopen their cases or reach the United States or already deported at the U.S. border. apply for waivers and other forms of permission to reenter the United said I was deported for life. But that’s not going to happen. States, these options are not available I have two U.S. citizenez 473 7 to everyone, can require considerable expense, and are ch kids.” -San y 2, 201 discretionary and thus not guaranteed. Even when a person lta Pera came touarUnited States 30 years ago as a teenager has the right to judicial review, once deported he or sheA v. Juan C. Febr the S on has and citizen children. In 1991, he was might not be able to get before a court, given both U in the edone may rchived nowfor athree U.S. was granted voluntary departure, it C practical difﬁculties (of learning about rights DUI and 3 a have arrested 5039 had and collecting evidence within the available statute of but he quickly returned to take care of his young kids. In . 14limitations for challenging anNo and some substantive order) March 2014, Juan says, he was arrested for sleeping in the limitations on ﬁling for review from abroad.472 Thus, many street and deported without a hearing. Alone in a shelter in individuals who have ties to the United States will continue Tijuana, Juan said, “I’m in the middle of nowhere. What am to attempt to return with or without authorization. In I going to do?”474 returning without permission, these individuals face prosecution and imprisonment for illegal reentry and There are individuals for whom deportation is not the successive deportations with heightened consequences; most traumatic experience in their lives and who are these are daunting penalties but not when compared with able to rebuild and start a future in the countries they separation from family. left, rejoining the families they left behind. Guillermo L., an employee at a migrant shelter in Reynosa, Mexico, Carlos S., who came to the United States from Mexico described how his deportation many years ago from when he was 14, was standing in Mexico, staring at the high the United States, where he had no family, was not the fence separating him from the United States and his family, deﬁning experience in his life; working in Mexico for when he spoke to the ACLU. Eight months ago, Carlos says, migrants to support their safety, it turns out, was. “At that he was arrested for a trafﬁc ticket and deported to Mexico; time, I wanted the American Dream. . . . But now, I want since then, he has tried three times to return to his U.S. to continue the mission here,” says Guillermo.475 But for citizen children. The ﬁrst time, he said, “I wanted to see a others, there is no closure from deportation, particularly judge. The immigration ofﬁcer said he guessed the judge when it separates them from their families in the United didn’t want to see me. . . . The last time, I signed a form—it 82 AMERICAN CIVIL LIBERTIES UNION Case: 14-50393, 02/07/2017, ID: 10304776, DktEntry: 43-2, Page 85 of 203 States, and when those deported never had their removal (and its reasons and consequences) explained to them. B. REINSTATEMENT OF REMOVAL When a person returns to the United States after being deported without authorization, his or her prior removal order is frequently “reinstated” with additional consequences if he or she again attempts to enter the United States. In FY 2013, 39 percent of individuals removed from the United States were processed through reinstatement, where their earlier orders of removal were essentially reissued without further review.476 Individuals who reentered illegally after April 1, 1997, after a prior order are inadmissible and are not eligible to apply for a waiver to reenter the United States for another 10 years after their deportation.477 In some cases, individuals return to the United States after a prior removal either because they do not know they have a ﬁnal deportation order since they did not see a judge or because the consequences of returning were never explained to them. Attorney Nancy Falgout observes, “There are harsh, harsh consequences for coming back. But people aren’t told about that.”479 Someone with multiple removal orders may look like a priority for deportation, but in some cases, the individuals who return may have strong claims to be in the United States but never get the opportunity either to make those claims or to unpack and challenge the accumulating deportation orders. As attorney Ken McGuire observed, these can be complicated cases, but that does not mean the claims are not valid: “It is hard to ﬁgure out if you have a claim—I don’t know how any immigrant, especially one who doesn’t speak English, can ﬁgure this stuff out. Without a lawyer who is well versed in immigration law, you don’t stand a chance. If someone has relief . . . by the time I’ve seen them, they have been deported a couple of times, and undoing that is really difﬁcult.”480 The reinstatement process, at the border in particular, ez anch , 2017 can be incredibly quick; the ofﬁcer need only verify the S As ina- summary removal procedures, the informality lt other ary 2 individual’s identity and their prior removal order and . Pera of the ebrubelies the the proceeding. ask about fear of returning to the country of origin. As SA v d on Fprocess ﬁrst came signiﬁcance ofStates at age 13 U to the United in ive Enrique, who attorney Lance Curtright observes, “Ined Cit reinstatement, you arch after his father was murdered, has been deported and get one ICE ofﬁcer who is going to talk to 393 and 50 people, prosecuted for illegal reentry on multiple occasions; all he there is basically no right to a lawyer, no record. Ofﬁcers . 14No or you are going to jail.’ It knows about his reinstated order is that there is a 20-year tell them, ‘You need to sign this ban on readmission: “They tell us that we have to sign [the happens really fast.”478 The speed with which reinstatement form]. It was in English; everything is in English. There occurs means that some individuals, even if they have a were things I understood and others I didn’t. You can’t ask new claim to be in the United States or could challenge any questions—you just sign where they tell you to sign.”481 their old removal order, will not get that opportunity Marcos V. was deported from the United States with an in because they do not have the time and resources to get legal absentia482 order and then was removed again at the border assistance. when he tried to return to his six- and three-year-old U.S. citizen children: “So much pain it brings to my heart, not seeing them. . . . The forms were in English. They didn’t give me time to understand them and they didn’t explain the forms.”483 Due to the speed of reinstatement, individuals who have a new claim or could challenge their old order are quickly deported again. Attorney Ken McGuire observed that LPRs who were previously erroneously deported based on an incorrect or now invalid reading of the law are stripped of their status but will come back to their families and probably get reinstatement orders.484 However, the reinstatement process does not provide a meaningful opportunity to explain the AMERICAN EXILE: Rapid Deportations That Bypass the Courtroom 83 Case: 14-50393, 02/07/2017, ID: 10304776, DktEntry: 43-2, Page 86 of 203 unlawfulness of their prior deportation: “A lot of these guys come back because they don’t know how to live anywhere else. We see reinstatements left and right, but how can you unwind all of this in 24 hours?”485 The reinstatement statute not only permits the abbreviated procedures that characterize all the summary removal procedures in this report, but it also limits the relief a person can apply for once they have a prior removal order. Individuals with strong equities—ties to the United States, a lack of criminal history, etc.—cannot apply for discretionary relief such as cancellation of removal. “You only ﬁnd out [about your rights] after you’ve been deported and after you’ve signed.” false information. After ICE picked her up, she was gone and deported to Mexico within 24 hours. Her sister Alex recalls, “I called to check up on her case and the immigration ofﬁcer said, ‘There is nothing you can do for her because she signed a voluntary departure back in 2003.’”490 Pancho came to the United States when he was ﬁve years old; when he was in middle school, he found out that he was not a United States citizen like his brother. In 2007, when he was 22 years old, he was arrested for driving One of the few claims a person can make after a prior without a license, an offense that falls outside of ICE’s removal order is a claim to withholding of removal or explicit enforcement priorities,486 and eventually took protection under the Convention Against Torture (CAT). voluntary departure, returning to Nogales, Mexico. “It In the government’s view, non-citizens in the reinstatement was like a whole new world to me. I lasted 6 months,” he process are not eligible for asylum, so to claim protection hez 017 recalls.487 He reentered the United States twice and both in the United anc they must meet a higher standard in States, ,2 a-S times was given a reinstatement order to sign; the second demonstrating theirrfear of persecution. If successful, they eralt brua y 2 time, he recalls, “They had me sign some papers and then v. P are still not able to access many of the beneﬁts of asylum. SA n Fe the ofﬁcer said, ‘Why are you here? It seems d in U a ved o like you had h C te 93 a a lot i Unlike asylees, they cannot petition to bring their children pretty good case.’ But by then it was tooilate. There arerc and family to join them in safety in the United States, 503 of people who are misinformed [in detention]. You only . 14-been deported and and they cannot adjust their status to have permanent No ﬁnd out [about your rights] after you’ve protection here as a lawful permanent resident or, after you’ve signed.”488 Pancho’s U.S. citizen wife and young eventually, as a U.S. citizen. But because fear of returning to daughter, who has a serious illness causing paralysis, have one’s country of origin is one of the few claims a nonjoined him in Mexico; his daughter, Pancho says, is unable citizen can make in reinstatement proceedings, withholding to get the medical care that she needs and would be entitled of removal and CAT remain important protections. to under state health care programs in the United States.489 Norma B. had lived in the United States since she was 15; two of her sisters are LPRs and a third is a U.S. citizen. She is the mother of four U.S. citizen children, ranging in age from two to 16 years old. In 2003, she was removed through voluntary departure but returned immediately to be with her children. According to Norma’s sister Alex, in the fall of 2013, 10 years after returning from Mexico, Norma was hiking with her children when police stopped her near a railroad crossing, said she was on private property, and asked her name. Terriﬁed, she apparently gave a false name but quickly admitted it was not her real name. The police arrested her and, according to Alex, Norma pleaded guilty to providing 84 AMERICAN CIVIL LIBERTIES UNION As legal scholar Shoba S. Wadhia observes, the signiﬁcant growth in the number of cases referred for withholdingonly proceedings—from 240 cases in 2009 to 2,269 cases in 2013—may suggest that DHS has improved its screening of individuals with fear of persecution in reinstatement or administrative removal proceedings.491 It might also be reﬂective of the growth in reinstatements and administrative removals, “which itself may be associated with a change of policy by DHS, under which the department will now throw into a speed removal program people who might have ordinarily been issued a Notice to Appear and placed in normal removal proceedings.”492 Case: 14-50393, 02/07/2017, ID: 10304776, DktEntry: 43-2, Page 87 of 203 Similarly, U-visa claims can be raised in the reinstatement process; if approved, a U visa will cancel a removal order.493 While the number of U-visa applications has increased in recent years—from 10,937 applications in FY 2009 to 39,894 in FY 2012—the rate of approvals has actually decreased (from 79 percent in FY 2009 to 44 percent in FY 2012).494 The growth in these protective claims as a claim of last resort does not mean that the applications are fraudulent or suspect, however. For some individuals interviewed by the ACLU, these are claims they had before being deported from the United States, but they never knew about these claims or had the chance to present them because they never saw a judge or lawyer who could explain their options and evaluate their case. USCIS in response to the ACLU FOIA request made any further mention of the fact that reinstatement should not be applied to individuals with these visas.495 Nor did any of the materials provided suggest that a DHS ofﬁcer processing an individual for reinstatement could or should inform a non-citizen about applying for a VAWA, T, or U visa. Thus, even learning about these visa options, in most cases, will require some contact with a legal services attorney who can identify the claim and inform the individual of their rights. For many individuals at the border, that prospect is unlikely. Demetrio, an indigenous man from Guatemala, has been deported three times; the ﬁrst time, he spoke little English or Spanish (he is a native Quiché speaker) and was unable In reinstatement proceedings, the DHS ofﬁcer is not to ask for help, as there was no Quiché interpreter available. required to make any inquiry that would elicit information The second and third times, he was given a reinstatement suggesting that a person facing reinstatement is eligible for order: “They said, ‘You’ve been deported, just sign. You’re a U visa. A 2013 USCIS manual on reinstatement, acquired deported again.’”496 He reentered the United States after his by the ACLU through a FOIA request, mentioned only in last deportation to join his wife, but in January 2013, he was an asterisked comment on a single page that reinstatement robbed and shot in California. The detective investigating ez should not be applied to individuals with VAWA, T, or U the crime agreed to certify 017 anch , 2his application for a U visa a-S went 2 visas; none of the other training materials received from Peralt and Demetrio ary to get ﬁngerprinted. However, his u . br SA v d on Fe U d in ive Undocumented immigrants from El Cite boardingra deportation ﬂight in Mesa, Arizona, on December 8, 2010. Salvador a ch 393 4-50 1 No. John Moore/Getty AMERICAN EXILE: Rapid Deportations That Bypass the Courtroom 85 Case: 14-50393, 02/07/2017, ID: 10304776, DktEntry: 43-2, Page 88 of 203 “They said, ‘You’ve been deported, just sign. You’re deported again.’” appointment for the U visa led to his arrest and detention by ICE. Demetrio says he was told that because of his prior deportations, he had no right to see a judge: “They closed my case. Everything is done. I ﬁled an appeal so I won’t be deported yet. That’s all I know. It’s all been difﬁcult being here, knowing it’s because I turned myself in.”497 But, despite her conditional approved U visa and strong withholding claim, her attorney observes that Adriana cannot bring her remaining children to the United States, including her youngest U.S. citizen child, because Adriana’s ex-partner will not take the child to have her U.S. passport reissued and Adriana cannot now leave the United States.500 If Adriana was not in reinstatement and won asylum, she would be able to travel to see her child and potentially bring her to the United States. For individuals who did eventually get a hearing and the chance to make claims in court, these opportunities came only after the person had been separated from family, exposed to danger, and in some cases, incarcerated for illegal reentry. For individuals who win asylum (and for all seeking asylum under international human rights law), their manner of entry did not violate the law; for those in reinstatement or who were prosecuted before being allowed to claim asylum, their entry means prosecution and, potentially, a lengthy incarceration. Emmanuel M., who had lived in the United States since childhood, was coerced into signing a voluntary departure form and was quickly deported to Mexico even though he was eligible for a U visa as the victim of a hate crime. He attempted to return to the United States in 2011 but was quickly returned to Mexico with an expedited ez removal order. Emmanuel has now been in Mexico for anch , a-S approximately two years while applying for a U visa with eralt bruary 2 P an attorney’s assistance so that he can rejoin his family in v. Fe SA U 498 d on California. ive ed in rch Cit 93 a 3 - mother of two Adriana, an Ecuadorian national and the 50 . 14the United States No U.S. citizen children, had been living in for ﬁve years without authorization when her abusive partner was arrested for attacking her and was subsequently deported to Ecuador. Once in Ecuador, Adriana’s attorney says, he lied and told Adriana that one of their children, who had remained in Ecuador, was very ill; but when Adriana arrived with her two U.S. citizen children, she found her child healthy but herself once again in danger.499 Adriana sent her older U.S. citizen child back to the United States and tried to ﬂee to the United States as well but was apprehended twice at the U.S. border and deported. According to her attorney, Adriana, who speaks Quechua, does not appear to have been asked much or anything by CBP in a language she understood about her fear of being in Ecuador, and on her ﬁrst attempt to reach the United States, she was also on heavy pain medication after being beaten by the partner she was ﬂeeing. On her ﬁnal attempt to enter the United States, she was placed in reinstatement proceedings and able to apply for withholding of removal. 86 AMERICAN CIVIL LIBERTIES UNION 2017 Case: 14-50393, 02/07/2017, ID: 10304776, DktEntry: 43-2, Page 89 of 203 C. PROSECUTION FOR RETURNING In some cases, individuals who return to the United States after a removal order are apprehended by DHS and then referred for prosecution in federal court for illegal entry or reentry into the United States. Entering the United States without inspection is a federal misdemeanor punishable by up to six months in prison. In the four judicial districts where Operation Streamline is in effect, individuals prosecuted for illegal entry under 8 U.S.C. § 1325 plead guilty in mass hearings after only brieﬂy consulting with an appointed criminal defense attorney, with little opportunity to discuss potential claims for immigration relief or challenges to their removability with the attorney, let alone present such claims to a court.501 The number of people prosecuted for federal immigration offenses rose by 367 percent between FY 2003 and 2013. crime, ﬁnancial fraud, and protecting the most vulnerable members of society. While many federal judges have expressed concern that these cases are overwhelming their dockets for no good Under 8 U.S.C. § 1326, reentering the country after being reason,504 illegal entry and reentry are now the single most deported is a felony, and while federal public defenders prosecuted federal crimes and, each year, have accounted for representing individuals in these proceedings have more more federal prison admissions than violent, weapons, and time for consultation and investigation, the consequences property offenses combined.505 Some estimates put the cost of a conviction are stark: conviction for illegal reentry can ez of illegal entry and reentry prosecutions, for incarceration anch , 2017 lead to two years of imprisonment for people with no prior a-S billion per alone, eralt at $1ruary 2year.506 In 2013, more than half of criminal histories, and up to 20 years for people with more P v. federal eb prosecutions initiated were for illegal entry or reentry; signiﬁcant criminal records (including individuals who USA ed on Fpeople were prosecuted for federal immigration in d iv 97,384 have been prosecuted more than once e returningrtoh Cit for 93 a c the offenses in FY 2013, an increase of 367 percent from 2003.507 United States).502 503 - 14 No. FIGURE 5 Prisoners Entering Federal Prison, 1998–2011 (by offense) 35,000 30,000 Drug offenses 25,000 20,000 Immigration offenses 145% increase 15,000 10,000 5,000 0 Weapon offenses Property offenses Public-order offenses Violent offenses Missing/Unknown 19 98 19 99 20 00 20 01 20 02 20 03 20 04 20 05 20 06 20 07 20 08 20 09 20 10 20 11 In setting its national prosecutorial priorities, the U.S. Department of Justice emphasizes, “Given scarce resources, federal law enforcement efforts should focus on the most serious cases that implicate clear, substantial federal interests” and has urged U.S. Attorneys to “focus[] resources on fewer but the most signiﬁcant cases, as opposed to ﬁxating on the sheer volume of cases.”503 But today, many U.S. Attorneys appear to do exactly the opposite, pursuing a high volume of prosecutions rather than prioritizing speciﬁc cases that serve the Department of Justice’s stated priorities of national security, violent Source: Bureau of Justice Statistics, Federal Justice Statistics Program, http://bjs.ojp.usdoj.gov/fjsrc/ (last visited Feb. 7, 2014) AMERICAN EXILE: Rapid Deportations That Bypass the Courtroom 87 Case: 14-50393, 02/07/2017, ID: 10304776, DktEntry: 43-2, Page 90 of 203 This shotgun strategy also includes prosecutions of children: between 2008 and 2013, 383 children were prosecuted for illegal entry or reentry and had no more serious criminal history; 301 of those children were Mexican.508Attorney Victoria Trull, who represents defendants in illegal reentry proceedings, said the majority of people she sees have been removed without ever seeing a judge, through expedited removal or reinstatement.509 “You have people who don’t even speak Spanish, they grew up here, have lived here for an extended period of time but left brieﬂy and got [expedited removal],” Ms. Trull says, “and then they try to come back again and get prosecuted for illegal reentry.”510 Ms. Trull says she has also represented young non-citizens who might have been eligible for DACA but were deported before that program was initiated: “They came back because this is all that they know; it’s really heartbreaking.”511 For many people, there is no mechanism to address and correct procedural violations or factual errors in their deportation orders. deported through Operation Streamline found that 85 percent of those interviewed said they would cross again.512 Similarly, a study by the University of Arizona tracking 1,200 individuals deported following Operation Streamline sentences found no statistically signiﬁcant difference between those who went through Operation Streamline Prosecution for illegal entry or reentry has been promoted and those who did not in terms of reentry.513 While the as part of the “Consequence Delivery System” and as a Yuma and El Paso sectors prosecute every apprehended way to deter individuals who have been deported from migrant through Operation Streamline, they have rereturning without authorization. But particularly for ez apprehension rates almost identical to those of nearby people with family in the United States or a genuine 7 anch , 201Del Rio/Laredo) that sectors ta-S (respectively, y 2 and Tucson asylum claim, prosecution for illegal entry or reentry may eral b uar prosecute onlyra fraction of apprehended migrants through further complicate their immigration future without beingv. P e USA ed on F Streamline.514 a meaningful deterrent. An NPR survey of individuals Operation in v Cited 93 archi 503 FIGURE 6 . 14No Border Removals in FY 2013 FIGURE 7 Immigration Crimes FY 2003–2013 Noncriminal Removals Illegal Entry Immigration Crimes 77% 14% 73% 9% Nuisance Crime (1%) Domestic Abuse (1%) Traffic—Non-DUI (2%) Drugs—Sale/Transport/Distribution (1%) Traffic/DUI (2%) Drug Possession (1%) FBI Part 2—Violent (1%) FBI Part I (2%) FBI Part 2-Nonviolent (3%) Border Removals in FY 2013 By Most Serious Lifetime Criminal Conviction. While the majority of individuals deported at the U.S. border had no criminal history, of those removed who had been convicted of a criminal offense at some point, the principal category was immigration crimes. Between FY 2003 and 2013, 9 percent of border removals were individuals with a conviction for an immigration crime; in FY 2014 alone, 14 percent of border removals had been convicted at some point for an immigration crime. Source: Marc R. Rosenblum & Kristen McCabe, MIGRATION POLICY INSTITUTE, DEPORTATION AND DISCRETION: REVIEWING THE RECORD AND OPTIONS FOR CHANGE (2014) (based on DHS data analyzed by Migration Policy Institute), available at http:// www.migrationpolicy.org/research/deportation-and-discretion-reviewing-record-and-optionschange. Note: Total may not equal 100% because of rounding. 88 AMERICAN CIVIL LIBERTIES UNION Illegal Reentry False Claim to U.S. Citizenship (1.5%) 12% Possession of Fraudulent Immigration Documents Trafficking of Fraudulent Immigration Documents (1%) The overwhelming majority of individuals removed at the border between FY 2003 and 2013 (77 percent) had no criminal convictions. Of the remaining 23 percent who had a criminal conviction, the single largest category of criminal offenses (9 percent) was “immigration crimes.” The convictions that are considered immigration crimes are shown in this graph. Between FY 2003 and 2013, DHS removed 193,790 individuals at or within 100 miles of the U.S. border whose most serious lifetime criminal offense was an immigration crime. Source: Marc R. Rosenblum & Kristen McCabe, MIGRATION POLICY INSTITUTE, DEPORTATION AND DISCRETION: REVIEWING THE RECORD AND OPTIONS FOR CHANGE (2014) (based on ICE data analyzed by Migration Policy Institute), available at http://www.migrationpolicy.org/research/deportation-and-discretionreviewing-record-and-options-change. Note: Total may not equal 100% because of rounding. Case: 14-50393, 02/07/2017, ID: 10304776, DktEntry: 43-2, Page 91 of 203 provides the ﬁrst opportunity for an individual to learn about and raise defects in their original deportation order, including claims they should never have been in removal proceedings in the ﬁrst place. In an illegal reentry case, the government has to demonstrate that the defendant (a) is not a citizen of the United States; (b) was previously removed from the United States; and (c) entered, attempted to enter, or Reynosa, Mexico, April 2014. A cross on the Mexico side of the border with the United was found back in the United States States (Texas) marks a memorial to migrants who have died trying to reach the United States. Coahuila, on the Mexican side of the Rio Grande Valley, has one of the without authorization.518 But the U.S. highest rates of murders and disappearances in Mexico, along with the neighboring Supreme Court has held a conviction states of Nuevo León and Tamaulipas. for illegal reentry cannot be based on a prior deportation order that Felipe R., who was pressured to take voluntary departure violated due process.519 In response, Congress explicitly amended the illegal reentry statute to incorporate a threein 2003, has repeatedly tried to come back to reunite part test for when a defendant can collaterally challenge with his U.S. citizen daughters and was convicted of ez a prior deportation in a prosecution under section 1326. illegal entry and later illegal reentry. Although Felipe was anch , 2017 S t under 8 ary 2 1326(d), a defendant can Now,a§ kidnapped by a gang in Mexico, CBP has never referred eralvalidityrof U.S.C.underlying removal order in challenge P the eb utheir a criminal him for an interview with an asylum ofﬁcer and has A v. simply F US d on reinstated his removal. Says Felipe, “[The ofﬁcers] said ive prosecution for illegal reentry if (1) he or she exhausted in Cited Althoughh available administrative remedies to seek relief from the if I didn’t sign, they could leave me there.”51593 arc 503 prior removal order;520 (2) he or she was deprived of the Felipe already spent time in prison 4- returning without after o. 1 to be with his N opportunity for judicial review; and (3) the order was authorization, he says he will try again fundamentally unfair. To show fundamental unfairness, daughters and seek safety in the United States: “There are the defendant must show both that his or her due a lot of people ﬁghting for asylum who have their lives in process rights were violated by defects in the underlying the United States. They don’t want to put their families in deportation order, and that he or she was prejudiced as a danger. I would rather spend my life in jail than go back to result of the defects.521 Mexico.”516 Similarly, Francisco ﬁrst came to the United States in 1989 and has been deported multiple times; when interviewed in a migrant shelter in Tijuana, Francisco had just served 16 months in federal prison for illegal reentry before being processed through reinstatement by ICE and deported to Mexico. His two U.S. citizen children are in California and despite just being released from prison, Francisco wanted to return to his family in the United States: “I can’t wait too long.”517 Ironically, for some individuals, prosecution—or more accurately, representation by a federal public defender— For example, Jose Arteaga-Gonzales came to the United States in 1987 when he was three years old and in 2005 received an approved I-130 petition (which establishes the relationship between a U.S. citizen or lawful permanent resident and a non-permanent resident for immigration purposes522). In 2008, when Mr. Arteaga-Gonzales was 21 years old, CBP deported him to Mexico with an expedited removal order at the San Ysidro Port of Entry in California when he was en route to see his newborn U.S. citizen son. CBP also charged him with making a false claim to U.S. citizenship—which includes a permanent bar to reentry— despite contrary evidence in his sworn statement, which AMERICAN EXILE: Rapid Deportations That Bypass the Courtroom 89 Case: 14-50393, 02/07/2017, ID: 10304776, DktEntry: 43-2, Page 92 of 203 shows he said he was not a U.S. citizen. Because there is no mechanism for requesting judicial review of an expedited removal order in such circumstances, he could have been permanently prevented from visiting his child without a way to undo the order. However, during his prosecution for illegal reentry, a federal court examined his expedited removal order and found that it violated due process.523 Similarly, Jose Luis Gonzalez-Segundo’s attorney was able to successfully challenge his prior 238b deportation order in federal court by demonstrating that the order violated due process where Mr. Gonzalez-Segundo had not waived his right to an attorney and was not read or explained the 238b order in a language that he understood.524 Mizael Padilla Hernandez was wrongfully stripped of his LPR status and deported because immigration authorities No. * * * Individuals who are unfairly deported without a hearing are not only denied a chance to defend their rights during the initial deportation but, when and if they return, can also be processed through the criminal justice system instead of given the chance to rectify and explain the unfairness of their prior removal. Many individuals interviewed by the ACLU did not appear to have knowingly or voluntarily waived what rights they had at the time of their deportation, nor did they recall immigration z authorities ever nche their17 a explaining 20 deportation orders to them. lta-Shave been2, Others unlawfully removed due to a Pera about ruary v. mistake eb the (constantly evolving) law on aggravated USA ed on F in v felonies. However, for many of these individuals, there Cited 93 archi is no mechanism in the immigration system to address 03 and correct the procedural violations or factual errors in 14-5 their deportation orders. Without an attorney and out of the United States, individuals who do have claims to reopen their cases will ﬁnd the path to doing so logistically complex, expensive, and still uncertain. A prosecution for illegal reentry is hardly a boon. For one thing, collaterally attacking the underlying removal order is only a defense to the criminal prosecution. It may not be enough to ensure that the individual can remain in the United States and ﬁnally have their claims considered. Closeup of a mural at a migrant shelter in Nogales, Mexico, run by the Kino Border Initiative. Many individuals are deported from the United States without their money, phone, or a change of clothes. The shelter provides individuals recently deported from the United States with meals, clothing, and other personal items and helps migrants ﬁnd government services. 90 believed, incorrectly, that he had been convicted of a drug offense that constituted an aggravated felony. In fact, he had not yet been sentenced when he was deported by an immigration judge, and upon his return to the United States, he was processed through reinstatement and prosecuted for illegal reentry. His attorney successfully demonstrated that his deportation as an aggravated felon was unlawful, and the prosecution joined the defendant in moving to dismiss the indictment.525 AMERICAN CIVIL LIBERTIES UNION Moreover, the person’s right to a public defender ends once the criminal prosecution is over, leaving the person without an attorney to help in the often complicated immigration proceedings that follow. Federal public defenders and immigration attorneys told the ACLU that in practice, once a person has successfully collaterally attacked a prior deportation order, ICE does not always reinstate the prior order—however, even if they do not choose to reinstate, ICE may issue a new summary removal order such as an Case: 14-50393, 02/07/2017, ID: 10304776, DktEntry: 43-2, Page 93 of 203 Soledad H. R., seen here with her attorney, Ana Herrera, tried to seek asylum in the United States. Instead, she was prosecuted for illegal reentry and spent two years in criminal and then immigration detention. San Francisco, California. expedited removal order, so that the individual once again will be deported without a chance to present his or her claims in court. Getting a hearing before an immigration . v judge continues to be a matter of luck. USA were later able to apply for relief from removal and for ez 7 anch withholding of removal or asylum, protection through , 201 ta-S ary 2 l they Pera spent unnecessary time in prison and, in some cases, bru n Fe received felony convictions for attempting to seek asylum. do in ve Cited 93 archi 03 14-5 . Criminal 1. Asylum Seekers No and Prosecution In addition to individuals with family in the United States, asylum seekers who are deported without a hearing will inevitably return and try again to seek protection, if they can. But the next attempt to claim asylum may lead them ﬁrst into the criminal justice system. A 2013 report by Human Rights Watch concluded that “prosecutions for illegal entry or reentry may include a number of defendants with a colorable claim to asylum,” and these prosecutions interfere with an individual’s ability to seek asylum and win protection.526 Such prosecutions unjustly and unlawfully punish a person for pursuing his or her right to seek asylum.527 Several asylum seekers interviewed by the ACLU were prosecuted for illegal reentry when trying to seek sanctuary, and one was also prosecuted for use of a fraudulent visa, which she used to escape abuse and seek protection in the United States. While these individuals Soledad H. R., a 58-year-old woman from Mexico, came to the United States in 2007, ﬂeeing two decades of physical and psychological abuse by her husband, Jesus.528 Soledad says Jesus repeatedly tried to murder her—on one occasion, he poured gasoline over the house and locked her inside, and on another he attempted to run his truck over her—but police ofﬁcers repeatedly refused to arrest him. Finally, after two of her three children had been murdered in Mexico, Soledad escaped to California to join her only remaining son. In 2010, the aunt who raised Soledad was dying, and Soledad returned to Mexico to see her; however, Soledad’s husband learned of her return, found her, and threatened to kill her. Fearing for her life, Soledad attempted to return to the United States using a false visa and was arrested by CBP. Although the ofﬁcers did ask if she was afraid to return to Mexico, and Soledad said yes, she was not referred for a credible fear interview. Instead, she was prosecuted for use of a false visa. “I had brought a lot of papers of the complaints about my husband. They asked why I had brought all that,” recalls Soledad. “I would AMERICAN EXILE: Rapid Deportations That Bypass the Courtroom 91 Case: 14-50393, 02/07/2017, ID: 10304776, DktEntry: 43-2, Page 94 of 203 try to ask questions and [the ofﬁcer] just told me to shut up.”529 Soledad told her federal public defender, the federal judge, and immigration authorities that she was afraid to be deported; nevertheless, at the end of her sentence for illegal reentry, Soledad was deported to Cuidad Juárez, Mexico, on February 11, 2011. Soon after, she reentered the United States on May 27, 2011, was caught by CBP, and again explained her fear of being murdered by her husband. Once again, instead of seeing an asylum ofﬁcer, Soledad was prosecuted for and convicted of illegal reentry; she was sentenced to one year and one day (later reduced to 10 months). “I feel more fear [of being deported] because of my children. The oldest two tell me if we go back to Mexico, it would be our death.” police. Finally, Inocencia sent her children back across the border to family in California. Then she tried to cross by In April 2012, Soledad was transferred to ICE custody, herself. where she once again reiterated her fear of being deported. Finally, an ICE ofﬁcial did refer her for a reasonable “The ﬁrst time,” Inocencia recalled, “the ofﬁcer said, ‘The fear interview, which she passed. As the social workers government can keep your kids because you are illegal. evaluating Soledad observed, “the traumas remain fresh in It is a crime, what you did.’”533 Inocencia says she did not her memory, so that she relives them rather than simply understand what was happening and explained that she remembering, and experiences again all the anguish could not read the forms they were giving her because she engendered by the original events. For this reason, she has is illiterate: “Because Iez them I 7 felt very threatened by the asylum process and has delayed anch told 201 didn’t know how to read, I feltalta-S immigration was making fun of me. I didn’t know 2, her application because it necessitates confronting her Per about ualaw.” The ofﬁcer told her to sign several 530 r the ry history once again.” Soledad continued to be detained byv. anything eb A nF ICE during her proceedings for 14 months until she was ived o even after she explained that she could not read or in US h papers, Cited 93 arwas write. She was immediately ordered deported by Border released after a Rodriguez bond hearing.531 Because she c 03 Patrol agents at San Ysidro, who did not ask about her fear in reinstatement proceedings, she no longer qualiﬁed for 14 5 . and a-U visa. In total, o N of being returned to Mexico. asylum but is pursing withholding Soledad spent two years in detention for the criminal and Inocencia made a second attempt to rejoin her children; civil immigration charges; if she had been referred for a she says she was stopped again and questioned by an ofﬁcer credible fear interview upon her ﬁrst attempt to return who spoke very little Spanish (and she understood little to the United States, she would probably not have been English). Inocencia says the ofﬁcer joked that if she married prosecuted, imprisoned, and separated from her son, her him, he could help her. Once again, she was deported. sole surviving family, for so long. Inocencia tried for a third and ﬁnal time in 2012. This time, she was referred for prosecution for illegal reentry and Inocencia C. came to the United States from Mexico when put in prison. “The third time, thank God, they put me in she was 12 years old. At a young age, she became entrapped jail so he couldn’t touch me,” says Inocencia. Inocencia’s in a physically and psychologically abusive relationship federal public defender met her in jail and asked if she with a man who raped and beat her over the course of a had any fear of returning to Mexico. “He asked me if I decade. In 2010, Inocencia recalls, her partner, who was knew about asylum, and I said no, so he explained to me also from Mexico, decided to leave the United States and what asylum is,” says Inocencia.534 The judge presiding convinced Inocencia and their three young U.S. citizen over her illegal reentry case ordered her released, and her children to join him, claiming he would stop using drugs federal public defenders immediately contacted ICE and and alcohol.532 But once in Mexico, the violence quickly explained that Inocencia was afraid to be deported to resumed, Inocencia says, and she felt more in danger in Mexico, where her partner had many friends among the Mexico. Inocencia was taken to an immigration detention 92 AMERICAN CIVIL LIBERTIES UNION Case: 14-50393, 02/07/2017, ID: 10304776, DktEntry: 43-2, Page 95 of 203 facility but managed to ﬁnd an immigration attorney, explain her fear of being deported, and ﬁnally get before an immigration judge. She was eventually released on bond and able to reunite with her children. “I feel more fear [of being deported] because of my children,” she says. “The oldest two tell me if we go back to Mexico, it would be our death.”535 Soon after Ricardo E. was deported to El Salvador, he was assaulted and threatened both by gang members and local police. Ricardo believes that he was targeted by the police after he stood up to local police ofﬁcers who were threatening his girlfriend and that, to punish him, police ofﬁcers sent gang members to threaten him and demand money. According to his attorney, Jacqueline Bradley Chacon, the gang, colluding with police, threatened to kill him unless he continued to give them money; eventually, Ericka E. F., a 33-year-old from Honduras, ﬁrst came to he could no longer afford to pay them and pay the medical the United States in April 2013, ﬂeeing from both domestic bills for his ill parents.540 Ricardo’s cousin was trying to violence and gangs that she says had tried to kill her and help pay the gang but also ran out of money and was burn down her home. When she arrived in Texas in 2013, murdered, apparently because of his inability to meet the she says she asked for help from the border ofﬁcials: “I told gang’s extortion demands. Fearing for his life, Ricardo [the ofﬁcers] I was ﬂeeing for protection, because of the returned to the United States but was apprehended by violence. They said women always come here with lies. I ICE and placed in reinstatement proceedings. When he told them it was true. He just laughed and laughed.”536 She claimed fear of returning to El Salvador, he was referred to was deported, but still in danger, came back to the United an asylum ofﬁcer. But after the reasonable fear interview States. When she returned later that year, she was referred and after the asylum ofﬁcer had completed the assessment, for prosecution for illegal entry and sentenced to 30 days. the asylum ofﬁcer told Ricardo and his attorney that After serving her sentence, Ericka says, she was ﬁnally able while he was inclined to ﬁnd in favor of Ricardo, he no to request help and get a reasonable fear interview, which longer had jurisdiction over the case because Ricardo ez she passed. Two of her children are still in Honduras—one 7 anchfor prosecution for illegal reentry. Ms. had ta-S been referred 2, 201 is hiding from Ericka’s ex-partner, who threatened to kill eral bruary them. Even if she wins her case, she cannot petition to v. P Bradley Chacon observed that had her client received the e favorable USA ed on F ﬁnding before being referred for prosecution, bring her daughters over. in v he would have had strong grounds to reopen the prior Cited 93 archi 3 removal order. Ms. Bradley Chacon noted that, as a policy Currently, when an individual applies 50asylum, the U.S. 14 for .be to-put the asylum issue matter, this prosecution was nonsensical: “Why refer N to government’s policy appears o someone for prosecution when he is a prima facie case on hold when the individual was previously deported even of eligibility for withholding? Wouldn’t our obligations though, regardless of the merits of that deportation order, under non-refoulement [not to deport a person to a place it may not impact whether the person has a bona ﬁde where he faces persecution] trump everything?” Ricardo asylum claim. Training materials provided to the ACLU was sentenced to a year in prison for illegally reentering in response to a FOIA request state that when asylum the United States, which he was still serving at the time ofﬁcers determine that an asylum seeker has a prior order this report was written; his immigration proceedings have of removal, the ofﬁcer must inform ICE.537 Further, “[t]he been on hold while he serves his criminal sentence and his processing of the asylum application stops until the Asylum withholding claim has not yet been adjudicated. Ofﬁce is notiﬁed either that the prior order has been reinstated or that the [ICE Special Agent in Charge] will not reinstate the order.”538 Even if the individual has already applied for asylum, the guidance notes, he or she is not “automatically entitle[d]” to an interview with an asylum ofﬁcer unless he or she is “speciﬁcally referred to an Asylum Ofﬁce by the ofﬁce that reinstated the order.”539 In some cases, not only is the asylum process suspended, but an individual, brought to the attention of a DHS ofﬁcer, can be referred for prosecution. AMERICAN EXILE: Rapid Deportations That Bypass the Courtroom 93 Case: 14-50393, 02/07/2017, ID: 10304776, DktEntry: 43-2, Page 96 of 203 D. AMERICAN FAMILIES LIVING IN THE SHADOWS Deportations affect entire families, and in recent years, there has been increased attention paid to the impact of deportations on U.S. citizen children; some are left behind with relatives, some become part of the state foster care system, and others are effectively deported alongside their parents. ICE reports that in 2013 alone, 72,000 parents of U.S. citizens were deported from the United States.541 According to a 2013 report by Human Impact Partners, 4.5 million U.S. citizen children have at least one parent who is undocumented542; thus, the number of children who could see a parent deported, absent assistance from immigration reform, is even higher. For parents who are deported, returning to the United States without waiting for authorization may seem necessary in order to take care of their families and in the absence of a quick, affordable, and certain way to return. lives because they cannot adjust. [CBP ofﬁcers] are not educated about the consequences of these orders.”543 As attorney Marisol Pérez observed, in communities along the southern U.S. border, where people have had family on both sides of the border for decades, these orders create severe ruptures in families and whole communities: “It’s detrimental, especially for South Texas individuals, because the consequences that attach to [expedited removal] are horrible—10 years outside the U.S.? No one can accomplish that if they are married to a U.S. citizen and have children.”544 There is no publicly available guidance on how CBP determines whether someone is purposefully committing fraud or misrepresentation, and when to charge or refrain from charging a non-citizen on one of these grounds. Overcoming a deportation order and its bars on reentry is sufﬁciently difﬁcult for most people; waivers, even when available, can be expensive and are not guaranteed.545 Most people who were unrepresented when deported will face the same or greater difﬁculties in learning about and ez applying for lawful opportunities 7 reenter the United anch , 201to S States lta- outside its boundaries. ry 2 raonce Summary removal procedures, as discussed in previous chapters, are problematic because they do not take ua Pe individual equities into account; are prone to risk in theA v. Febr on US absence of a lawyer and judge; do not provide families with ived individuals who have family in the United States— ed in arch For of young children, in particular—the temptation to Cit parents the opportunity to prepare for the separation; and offer few 93 503review, even return without waiting for permission may be too great to opportunities for the individual to get41 judicial No. resist, particularly where no other option appears feasible. if he or she might have been eligible for relief if he or she As community organizer Lesley Hoare in Washington saw a judge and had an immigration hearing. State said, individuals deported and separated from their families are likely to come back, whatever the cost: “I think For many individuals, the lack of accountability and review it feels like there is no other option where their whole for unfair removal orders is compounded when those family is here,” says Ms. Hoare. Although, Ms. Hoare notes, orders include a ﬁnding of fraud or a false claim to U.S. apprehensions by Border Patrol are decreasing in the Forks citizenship, which may mean a permanent bar to returning area of Washington State where she works, families are still to the United States and cutting off avenues of adjusting contending with the effects of having a relative deported status in the future. As attorney Jaime Díez observes, without a hearing: “Things are going better now, but there “When [immigration ofﬁcers] give fraud bars to people are so many people who had no chance. They should be with U.S. citizen kids, they are screwed for the rest of their able to come back and have a chance. … It would do a lot of good for a lot of people and for our country and our community if people could come back.”546 In 2013 alone, 72,000 parents of U.S. citizens were deported from the United States. 94 AMERICAN CIVIL LIBERTIES UNION Katie R., a U.S. citizen, and her husband Jorge have been together for 18 years; they have two U.S. citizen children. But her husband’s immigration status and prior deportation order are a constant cause of anxiety for Case: 14-50393, 02/07/2017, ID: 10304776, DktEntry: 43-2, Page 97 of 203 there, one of the [travel agency] employees came out of the embassy and said there was no need to go in; ‘I have your passport here.’”549 Consuelo says it did not occur to her that the visa was fraudulent because it was in her own name and in her passport. When she arrived in the United States, however, she was pulled aside for additional questioning. “[The ofﬁcer] said, ‘You are under arrest; this is a fraudulent visa.’ At that point I was so scared, I was in shock; I couldn’t believe what he was saying.”550 Consuelo recalls that she was detained for many hours while numerous ofﬁcers the family. Jorge came to the United States in 1996 after questioned her, accusing her of using a fake passport, asking separating from his wife in Mexico. He met Katie and, in who she had bought her passport from, and telling her she 2000, after the birth of their ﬁrst child, returned to Mexico would go to jail for many years: “I would do anything to get to ﬁnalize his divorce so that he and Katie could marry. out of there. When I heard ‘jail,’ I thought about the jails in When he returned to the United States, Jorge was put my country where you get stabbed, raped, killed. . . . I said I in secondary inspection at a port of entry in Texas and want to call my embassy or my sister, and they said, ‘No, you questioned for several hours. The ofﬁcers went through have no right.’ I told them again what happened. He didn’t his wallet and found his Mexican ID but claimed Jorge want to write down my story—he would only start from fraudulently claimed to be a U.S. citizen. He was deported where the guy came out of the embassy. He didn’t believe without the chance to call his family. Katie went to Mexico or write down the rest.”551 The questioning continued to marry Jorge and they both returned to the United States for several days while Consuelo was in a detention center ez with their baby (they now have two U.S. citizen children). anch to return 17to Peru, and started again waiting-for a plane aS 2, 20her Katie says that it was only after consulting with attorneys eralt shebrubrought back to the airport. As Consuelo when was ary that the family found out about the alleged false claim to . P e SA v remembers, Umeans ed on F on that last day, n U.S. citizenship. This charge, which Jorge denies, v te i Chis d 93 to chi he cannot adjust his status based on i marriage ara U.S. They said, “You have to tell us your name,” but 3 citizen, his U.S. citizen children, or 4-50 in the United his . 1law. years the strain I kept telling them and they wouldn’t believe it. No States under current immigration For Katie, When you are so depressed and tired, at some of keeping her husband’s status a secret to keep the family point you think saying another name will free together is enormous: “I’m a really honest person and hate you, even if it’s not your name. You think it will not telling the whole truth. It’s incredibly stressful. It’s like be over, you just want the nightmare to be over. you’re living a lie, but the alternative is to not have my I said, “Put whatever name you want.” . . . Even husband.”547 Jorge is the main breadwinner for his family, now I think, how would I do that, why did I do but with his status he is in a permanently delicate position. that, it was stupid it was done, but at the time I Says Katie, “The simple things like health insurance for just wanted it to be over. Then they brought a set your children . . . or getting car insurance; you say you’re of papers they wanted me to sign ﬁrst. They said, married and then they want your husband’s name and “It’s so you can go to your country and this is drivers’ license, and I can’t tell them. It’s like there is an because you committed a crime; you committed underlying lie you have to keep and you want to shout out 548 fraud.” I said, “No, I’m not going to sign.” He that this isn’t a bad thing.” grabbed my hand, he slammed my arm because I wouldn’t let him force me to sign. The others When Consuelo ﬁrst came to the United States from Peru were banging the table with their hands, pushing to visit her sister, her parents went through a known travel my shoulder. It was very intimidating—three or agent and applied and paid for a tourist visa. Consuelo four people screaming, “You are a criminal, sign recalls, “We thought we could trust them. They told me to go to the interview at the U.S. embassy, and when I got the fucking paper, you are going to jail.” Then “It’s like there is an underlying lie you have to keep and you want to shout out that this isn’t a bad thing.” AMERICAN EXILE: Rapid Deportations That Bypass the Courtroom 95 Case: 14-50393, 02/07/2017, ID: 10304776, DktEntry: 43-2, Page 98 of 203 they said, “We’re going to put you in jail,” so I signed the paper they put in front of me.552 Consuelo eventually came back to the United States without authorization to help her sister, who was being abused by her partner. She has since married a U.S. citizen and has two U.S. citizen children. But she has been living in the shadows for over a decade, unable to adjust her status and terriﬁed of being separated from her family. She says she has been to several attorneys but is always told the same thing: that because of the fraud bar, she is permanently banned from immigration relief.553 * * * The consequences of a deportation order are severe, as is the price of returning to the United States without permission, whatever the motive. The costs may be disproportionately borne by people with strong ties to the United States. There are undoubtedly circumstances where the deportation order is lawful and justiﬁed, but where an individual is ordered deported without a hearing and by ez anch , an immigration ofﬁcer, there is more risk that the order a-S eralt bruary 2 will be erroneous or unfair. The existing system offers .P S v d on Fe few (or fewer) avenues to rectify an unfair deportation A in U order, providing as few safeguards in Cited the aftermath of rchive 3a deportation as exist during the summary expulsion process. 5039 These procedures are quick, buto. 14 not quickly undone, even Ncase make clear that an when the law and the facts of a error was made. Under human rights law, a person facing deportation not only has the right to be heard before a competent and independent adjudicator, but also has the right to a remedy. Both rights are frequently illusory for the majority of people deported from the United States today. 96 AMERICAN CIVIL LIBERTIES UNION 2017 Case: 14-50393, 02/07/2017, ID: 10304776, DktEntry: 43-2, Page 99 of 203 IV. INTERNATIONAL LAW AND RESTRICTIONS ON SUMMARY REMOVALS protections from arbitrary or prolonged detention; and particular protections for children and families. A. ACCESS TO JUSTICE AND THE RIGHT TO A FAIR HEARING An individual cannot assert and protect his or her rights without the right to be heard. International human rights law speciﬁcally recognizes the right of a non-citizen facing nternational human rights law has developed explicit deportation to have a hearing about his or her claims in protections for non-citizens facing expulsion or seeking front of a competent authority. The International Covenant admission to another country. In addition to human rights on Civil and Political Rights (ICCPR), which was ratiﬁed law’s strong protections for individuals seeking asylum, by the United States, provides that an individual “lawfully adopted into U.S. law through the Refugee Convention and in the territory of a State party” must “be allowed to submit the Convention Against Torture, international law requires the reasons against his expulsion and to have his case that all individuals facing deportation have an opportunity reviewed by, and be represented for the purpose before, to be heard, to advocate for their rights (including their the competent authority or a person or persons especially family rights), and to be treated humanely. International designated by the competent authority.”555 The U.N. ez law does not require states to admit all non-citizens; as the anch , 2017 that monitors state Human S Committee, lta- Rightsary 2 the body Inter-American Court of Human Rights has held, “States Pera bu v. compliancerwith the ICCPR, has determined that nonn Fe want to challenge a deportation order against may establish mechanisms to control the entry USand into A citizens who in ed o ited departure from their territory of individuals whoarchiv are not them are “lawfully in the territory” and, should the legality C 3 39the norms of of their presence or entry be in question, “any decision on nationals, as long as they are compatible0 with 14-5 554 this point leading to his expulsion or deportation ought Thus, human rights protection.”No. when a state chooses to to be taken in accordance with article 13 ... an alien must deport non-citizens, human rights law requires that it also be given full facilities for pursuing his remedy against provide them with a fair opportunity to be heard and have expulsion so that this right will in all the circumstances of their case reviewed; the chance to seek asylum, if relevant; his case be an effective one.”556 I Human rights law requires that all persons appearing before a judicial proceeding receive “a fair and public hearing by a competent, independent, and impartial tribunal.” The U.N. Secretary General recently warned against arbitrary forced returns that may lead to additional human rights violations, and reiterated the right of every migrant “to an individual and proper assessment of her or his circumstances by a competent ofﬁcial, including protection needs and human rights and other considerations, in addition to reasons for entry.”557 Human rights law further recognizes the right of an individual facing expulsion to legal assistance,558 and some individuals—for example, persons with disabilities559 or children560—may need particular assistance. The U.N. principles governing all detainees state that a detainee AMERICAN EXILE: Rapid Deportations That Bypass the Courtroom 97 Case: 14-50393, 02/07/2017, ID: 10304776, DktEntry: 43-2, Page 100 of 203 should receive legal assistance if he or she is unable to afford a lawyer.561 Under international law, it is not enough to provide a person with a hearing in front of a law enforcement agent while in detention. Rather, human rights law requires that all persons appearing before a judicial proceeding receive “a fair and public hearing by a competent, independent, and impartial tribunal.”562 Similarly, Article 8(1) of the American Convention on Human Rights, signed by the United States in 1977, provides each person with “the right to a hearing, with due guarantees and within a reasonable time, by a competent, independent, and impartial tribunal, previously established by law” in the determination of their rights.563 Interpreting the American Convention on Human Rights, the Inter-American Commission on Human Rights has stated that deportation proceedings require “as broad as possible” an interpretation of due process requirements, and that they include the right to a meaningful defense and to be represented by an attorney.564 in the border zone, in particular, are generally detained in a holding cell, where they have no way of ﬁnding a lawyer and sometimes without knowing where they are. The rapidity with which they are deported makes it even more challenging to obtain legal assistance before deportation. Even beyond the border, individuals coerced to accept voluntary departure have been prevented from contacting or conferring with their attorneys prior to removal. Moreover, under human rights law, access to justice does not only mean procedural fairness, but also includes the right to an effective remedy for victims of human rights violations. Article 2 of the ICCPR requires the government to “ensure that any person whose rights or freedoms as herein recognized are violated shall have an effective remedy . . .”565 This same principle is enshrined in numerous other human rights instruments, including Article 8 of the Universal Declaration of Human Rights,566 Article 14 of the Convention Against Torture and Other Cruel, Inhuman, or Degrading Treatment or Punishment,567 Article 6 of the Convention for the Elimination of All Forms of Racial Discrimination,568 ez 7 anch , Convention on Human Article ta-S American 201 25 of the 2 l Rights, uar 13 Pera 569 and Articley of the European Convention on Febr570 Human Rights. on These numerous protections and rights are absent in the current U.S. system of summary removal, in violation of human rights law. Summary deportations without A v. US a hearing violate these laws by denying a non-citizen ed in archived Cit the opportunity to present claims and defenses against The current U.S. system of summary deportations denies 393 removal; the opportunity to be represented0 an 4-5 by 1 many people a meaningful way to challenge unlawful .opportunity for judicial No appointed attorney; a meaningful deportation orders that violated their human rights. For review; and the opportunity to have their case reviewed example, an asylum seeker unlawfully returned to a country by a competent and neutral arbiter. In the proceedings where he or she was subsequently tortured cannot easily discussed in this report, most people will have their challenge that deportation order and has no immediate case examined only by an ofﬁcer of the Department of remedy for the harm he or she experienced resulting from a Homeland Security, the same agency that is arresting, violation of human rights law requirements under noninterrogating, detaining, and deporting them. The charging refoulement (prohibiting a state from returning a person to and reviewing ofﬁcers are not required to be attorneys, let a place where he or she faces persecution). alone judges, and yet rights determinations, even at the border, can be complex and require sophisticated legal In the absence of these critical protections required by analysis. Under human rights law, this limited proceeding human rights law, many individuals deported today does not qualify as a hearing before a competent or through a summary removal procedure are denied access independent tribunal; indeed, the extent to which these to justice both before and after their deportation from the summary procedures constitute “hearings” at all is suspect. United States. Individuals processed through these summary expulsion mechanisms rarely have the opportunity to speak with an attorney before being deported. Expedited removal does not include the right to an attorney, and individuals arrested 98 AMERICAN CIVIL LIBERTIES UNION Case: 14-50393, 02/07/2017, ID: 10304776, DktEntry: 43-2, Page 101 of 203 B. THE RIGHT TO APPLY FOR ASYLUM AND THE RIGHT TO PROTECTION FROM PERSECUTION Article 14 of the Universal Declaration of Human Rights (UDHR) provides that “[e]veryone has the right to seek and to enjoy in other countries asylum from persecution.”571 Similarly, the American Convention on Human Rights explicitly provides for the right of an individual “to seek and be granted asylum in a foreign territory, in accordance with the legislation of the state and international conventions, in the event he is being pursued for political offenses or related common crimes.”572 Thus, while not everyone may be eligible for asylum, all persons seeking such protection have the right to request it and, if eligible, to receive its beneﬁts. to ensure that asylum seekers can access this protection by (1) adequately training border ofﬁcials who apprehend and screen arriving migrants; (2) providing migrants with information in their own language about their right to seek asylum; and (3) investigating and disciplining ofﬁcers who “obstruct access to protection and assistance services by failing to refer migrants to appropriate protection and assistance services.”574 International human rights and refugee law contain an absolute prohibition on returning an individual where he or she faces torture, persecution, or other degrading treatment.575 While the United States has adopted the Refugee Convention into domestic law, human rights law continues to recognize stronger substantive protections than the United States has. For example, in Sale v. Haitian Ctr. Council, Inc., the U.S. Supreme Court held that the United States was not in violation of its non-refoulement obligations in returning Haitians interdicted on the high Recognizing the danger that asylum seekers may be seas because the Haitians were not within U.S. territory deported when they arrive at an international border (and so the non-refoulement provision did not apply).576 seeking assistance, the Ofﬁce of the High Commissioner By contrast, the Inter-American Commission on Human ez 17 for Human Rights (OHCHR) recently reiterated states’ anch U.S. Supreme Court’s reasoning, ﬁnding Rights -S the tarejectedary 2, 20 ral United obligations to ensure that migrants are given “access to v. Pe that theebru States had indeed violated these Haitian F A information on the right to claim asylum and to access fair migrants’ rights to asylum as in USrightived on and securityseekthe person well as their right to life, 573 and efﬁcient asylum procedures.” Supporting this h to ed liberty, of by summarily returning Cit arc claim asylum, the OHCHR speciﬁcally called upon States interdicted Haitians without ﬁrst 393 -50 providing them a meaningful o. 14 N opportunity to have their claims heard and adjudicated.577 John Moore/Getty A migrant shelter in Nogales, Mexico, provides food and assistance to those recently deported from the United States. Currently, even within the United States territory, many asylum seekers arriving in the United States are effectively denied the opportunity to seek protection when border ofﬁcials fail to inform them of that right and ignore or screen out claims of fear of persecution. In so doing, these ofﬁcers not only deprive individuals of their rights under human rights and U.S. law to request protection, but also risk violating binding human rights obligations to ensure that individuals are not returned to countries where they are in danger. Several individuals AMERICAN EXILE: Rapid Deportations That Bypass the Courtroom 99 Case: 14-50393, 02/07/2017, ID: 10304776, DktEntry: 43-2, Page 102 of 203 Criminalizing, prosecuting, and imprisoning asylum seekers for entering without authorization directly contravenes their right to apply for asylum. interviewed by the ACLU said they had asked for protection at the U.S. border, were instead deported, and were subsequently assaulted, kidnapped, raped, or killed. Many U.S. immigration ofﬁcers appear to believe, incorrectly, that violence from gangs and other non-state actors will not trigger protection in the United States; however, threats and violence from these non-state actors are also grounds for international protection under human rights law.578 These are exactly the dangers that human rights law was designed to address and prevent. C. SPECIAL PROTECTIONS FOR CHILDREN Human rights law recognizes the vulnerability of child migrants, particularly those traveling alone. Under the U.N. Convention on the Rights of the Child, which the United States has signed but not ratiﬁed, states are obliged to provide protection and care for unaccompanied children and to take into account a child’s best interests in every action affecting the child.581 The decision to return a child to his or her country of origin, under international law, must take into account the child’s best interests, including his or her safety and security upon return, socio-economic conditions, and the views of the child.582 If a child’s return to their country of origin is not possible or not in the child’s best interests, under human rights law states must facilitate the child’s integration into the host country through refugee status or other forms of protection.583 ez anch , 2017 a-S eralt bruary 2 .P SA v d on Fe in U e Instead of receiving these necessary protections, some rchiv ited C a asylum seekers who arrive without prior authorization 393 4-50 States or travel documents are prosecuted 1 the United No. in for illegal entry or reentry, and sentenced to prison in violation of human rights law. The Refugee Convention, recognizing that asylum seekers often must arrive without prior authorization or valid travel documents, provides that asylum seekers shall not be penalized for their illegal entry or presence.579 The UNHCR’s Detention Guidelines also require that detention not be “used as a punitive or disciplinary measure for illegal entry or presence in the country,”580 and yet that is exactly what prosecutions for illegal entry or reentry do. Criminalizing, prosecuting, and imprisoning asylum seekers for entering the United States without authorization directly contravenes their right to apply for asylum and to not be punished for the way they arrive when ﬂeeing danger. Brownsville, Texas, April 2014. The border fence separating Mexico and the United States near a children’s playground. 100 AMERICAN CIVIL LIBERTIES UNION Case: 14-50393, 02/07/2017, ID: 10304776, DktEntry: 43-2, Page 103 of 203 While human rights law, in general, limits the use of detention for immigration violations, the U.N. High Commission for Refugees has speciﬁcally advised that unaccompanied children “should not be detained.”584 In exceptional circumstances where children are in detention, detention must be used only as a last resort, for the shortest appropriate time, and with additional safeguards to ensure a child’s safety and welfare.585 To ensure that unaccompanied children are able to seek asylum, human rights law recognizes that states must provide a meaningful way for children to seek protection and that children must be screened by ofﬁcers with particular training. Examining Portugal’s treatment of unaccompanied minors, the U.N. Committee on the Rights of the Child speciﬁcally expressed concern that unaccompanied children face “lengthy and inadequate procedures” conducted by persons without adequate training to address the specialized needs of unaccompanied minors.586 Today, many children are alone, without representation, while facing incredibly complex legal proceedings. interacting with the legal system. As the U.S. Supreme Court has stated, in addressing the right to appointed counsel in juvenile delinquency proceedings, a child “needs the assistance of counsel to cope with problems of law, to make skilled inquiry into the facts, to insist upon regularity of the proceedings, and to ascertain whether he has a defense and to prepare and submit it. The child ‘requires the guiding hand of counsel at every step in the proceedings against him.’”589 Although international human rights law requires that unaccompanied children ez The Committee has also raised concerns where nc legal 2017 awithh ,assistance,590 in U.S. immigration be provided a-S unaccompanied children with possible international eralt bruary 2 right to appointed counsel under protection needs are automatically turned away as A v. P proceedings there is no n Fe domestic law. As a result, many children are alone, without US “economic migrants” based on national origin and withouted o in v representation, while facing incredibly complex legal C ted 93 archi assessment of the risks they may facei (thus potentially proceedings. Without legal assistance, even children who 503 violating non-refoulement obligations).587 For Mexican . 14- without a hearing, have strong asylum claims may be unjustly deported and N repatriated children who are summarily o unlawfully returned to danger if they cannot express and the right to be free from discrimination on the basis of defend their claims in court. national origin should ensure those children have an equal opportunity to claim protection in the United States and are not unfairly expelled on the basis of national origin. This issue of unfair treatment in access to immigration relief, based on national origin, has previously been considered by the Inter-American Commission for Human Rights (IACHR). Evaluating the interdiction and summary return of Haitians by U.S. authorities, the IACHR held that the United States had violated their right to freedom from discrimination, as a signiﬁcantly more favorable policy was applied to Cubans and Nicaraguans.588 For children who are able to get an immigration hearing, U.S. law provides insufﬁcient safeguards to ensure they can actually present their case and defend against deportation, although U.S. constitutional law acknowledges that children need additional assistance and protections when AMERICAN EXILE: Rapid Deportations That Bypass the Courtroom 101 Case: 14-50393, 02/07/2017, ID: 10304776, DktEntry: 43-2, Page 104 of 203 D. LIMITATIONS ON DETENTION E. THE RIGHT TO FAMILY UNITY Although many people processed through a summary removal procedure are quickly deported and will not remain in detention for long, other may be detained for weeks or months awaiting removal and without the opportunity to request release or review of their case. For example, individuals applying for asylum or individuals who are awaiting repatriation but where the United States is having difﬁculty securing travel documents are subject to mandatory detention. For non-citizens deported after many years in the United States, where they have formed families and other community ties, deportation is a harsh event whose effects ricochet through the family.598 Human rights law recognizes the central importance of the family and that “[t]he family is the natural and fundamental group unit of society and is entitled to protection by society and the State.”599 Children residing in the United States whose parents are non-citizens deported without a chance to defend against deportation are also harmed by these processes. Article 9 of the CRC requires that “State Parties shall ensure that a child shall not be separated from his or her parents against their will, except when ... such separation is necessary for the best interests of the child.”600 In summary removal procedures, it does not appear that DHS ofﬁcials are even inquiring whether a person has children in the United States or taking that information into account to refer the person for a hearing in which the equities can be weighed. hez in this report were the parents ancproﬁled 2017 Several individuals , a-S of U.S. citizen ruary deportation forced them to choose eralt b children; 2 P v. between defying the order, separation from their children, e USA ed on F The United Nations Working Group on Arbitrary n Detention ted i archiv and taking their children with them to a place that may recognizes “the sovereign right of statesCiregulate migration” to have been dangerous. Some parents we spoke with said they 393 but recommends that “immigration detention should 4-50 1 could not bring their children to the dangerous countries . to be administrative No gradually be abolished.... If there has to which they were deported and, as a result, felt they had detention, the principle of proportionality requires it to be to return to United States even without permission. a last resort.”596 The recent move by the U.S. government to create more detention for families and children is a move in Article 17(1) of the International Covenant on Civil and the opposite direction. Political Rights (ICCPR) further requires that no one shall be “subjected to arbitrary or unlawful interference with While many people processed through summary removal his privacy, family, home or correspondence.” Article 23 procedures will not be detained for a long period of time and of the ICCPR recognizes that “[t]he family is the natural are quickly removed, those with claims that they defend—for and fundamental group unit of society and is entitled to example, asylum seekers—may spend months or years in International law requires that any person detained should be provided with a prompt and effective remedy before an independent judicial body to challenge the decision to detain him or her.591 Every decision to keep a person in detention should be open to review periodically.592 The Human Rights Committee, which interprets the ICCPR, has explicitly held that the right to be free from arbitrary deprivations of liberty includes immigration detention.593 Human rights law prohibits the mandatory application of detention to immigrants without individualized review.594 The state bears the burden of demonstrating that detention is necessary for the particular immigrant detained, given that individual’s circumstances.595 detention even if they pose no risk or danger. Individuals who are referred for a credible or reasonable fear interview are detained while they await an interview and then while their case is adjudicated. The prolonged detention of asylum seekers awaiting credible or reasonable fear interviews and then a date in court violates international human rights law, particularly when those individuals are not permitted to apply for release and have their individual circumstances reviewed.597 102 AMERICAN CIVIL LIBERTIES UNION The Human Rights Committee has recognized an explicit limitation on deportations that would separate a family. Case: 14-50393, 02/07/2017, ID: 10304776, DktEntry: 43-2, Page 105 of 203 protection by society and the state,” and that all men and women have the right “to marry and to found a family.” The right to establish a family includes the right “to live together.”601 The Human Rights Committee, interpreting the ICCPR, recognized an explicit limitation on a state’s ability to deport and so separate a family.602 In Winata v. Australia, for example, the Human Rights Committee held that the deportation of an Indonesian couple who had an Australian citizen child violated human rights law, noting that the family’s ties to Australia and the impact on the Australian-born son from deportation would implicate the family’s right to be free from interference under international law—and the child’s right to necessary protective measures.603 While all deportation processes may lead to a rupture in family life for individuals with family in the country expelling them, deportations that occur without a hearing are more likely to disrupt families, in part because of the speed with which these deportations occur but also because these processes do not recognize family unity as factor affecting either relief from deportation or eligibility for a ez anch , hearing. Summary removal procedures that do not allow a-S eralt bruary 2 consideration of the equities of an individual’s case—in . P v e particular, their family ties in the United States—violate USA ed on F in human rights law both in denyingCited the individual thechiv ar opportunity to present defenses and in discounting family 393 -50 relationships completely. As a result, some individuals who o. 14 N might win relief from removal in immigration court, where they can also present evidence of their family ties and where those ties may make them eligible for discretionary relief, are instead deported with signiﬁcant consequences for the individual deported and the children left behind. 2017 AMERICAN EXILE: Rapid Deportations That Bypass the Courtroom 103 Case: 14-50393, 02/07/2017, ID: 10304776, DktEntry: 43-2, Page 106 of 203 RECOMMENDATIONS TO THE DEPARTMENT OF HOMELAND SECURITY (DHS) A. General Recommendations 1. Regarding the Use of Summary Removals a. DHS should institute a basic screening tool to apply to all non-citizens, regardless of where or by which agency they are apprehended, that will identify individuals: i. Who have U.S. citizen or lawful permanent resident family or family with other lawful status, including Deferred Action for Childhood Arrivals (DACA); ii. Who may have non-frivolous claims to U.S. citizenship; vi. Who may be eligible for DACA; and vii. Who are children (i.e., under 21 years of age; see INA § 101(b)). ez anch , 2017 iii. Who have mental disabilities; lta-S 2 Pera ebruary v. iv. Who may be eligible for asylum, withholding of removal, protection USA ed on F in hiv under Citedthe U.N. Convention Against Torture, Temporary Protected 3 arc 9U or T visas; Status,3 50 or . 14No Who may be eligible for prosecutorial discretion; v. b. For individuals who are identiﬁed under this basic screening tool, DHS should either exercise discretion not to initiate any enforcement action or refer them for an immigration hearing under INA § 240. c. DHS should train and retrain its ofﬁcers against using threats, misinformation, or coercion to force an individual to sign a summary removal order; discouraging an individual from pursuing a claim for relief; or convincing an individual to waive his or her right to a hearing before a judge or to an appeal, where such right exists. DHS ofﬁcers should not provide any legal information or advice beyond that required on the relevant forms or under applicable law. In particular, DHS ofﬁcers should not: i. 104 AMERICAN CIVIL LIBERTIES UNION Speculate about the strength or weakness of an individual’s claim; Case: 14-50393, 02/07/2017, ID: 10304776, DktEntry: 43-2, Page 107 of 203 ii. Engage in misrepresentation or misinformation regarding an individual’s eligibility for relief or ability to apply for relief from outside of the United States; iii. Provide information about U.S. law such as what claims qualify for asylum, whether or not asylum exists, and whether an asylum claim can be made by an individual from a certain country; iv. Make threats or claims about the impact on an individual’s family in the United States should the individual fail to sign a removal order; or v. Speculate about the length of time an individual will spend in detention should he or she apply for relief. d. DHS should have a stringent disciplinary process in place for ofﬁcers who engage in any of the activities mentioned in A.1.c. Ofﬁcers accused of engaging in these coercive and inappropriate activities should be reassigned to duties where they will not have contact with non-citizens to determine their removability, pending the outcome of an internal investigation. Ofﬁcers found to have knowingly engaged in these activities should be terminated. In cases where an ofﬁcer is found to have engaged in these practices, DHS should withdraw the removal order, inform persons affected, chez anhave already017 deported. and reassess individual cases, even if individuals 2, 2 been lta-S ary Pera v. summaryFebruproceedings, and a copy of A e. DHS should video-record all removal in USbehived onin the individual’s A-File. DHS ofﬁcers that recording should c maintained Cited 93 ar must inform individuals that their statements are being recorded and could 503 potentially be used against them. . 14No f. DHS should promulgate regulations requiring that all summary removal orders be promptly provided in writing in the primary language spoken by the person subject to the order and that the order and its consequences be explained to the individual by an independent interpreter, where necessary, or, if interpretation is not necessary, by a DHS employee who is not afﬁliated with an enforcement agency. g. DHS should not demand that individuals sign forms that have already been ﬁlled out to accept a summary removal order or otherwise waive their right to a hearing before a judge or to an appeal. h. DHS should provide individuals with current contact information for their consulates and for legal services providers, and must ensure that individuals are permitted to call at no charge and consult with their consulates and a legal services provider prior to signing a summary removal order. i. DHS supervisors should be involved in determining whether each individual signing a removal order is competent to understand the order and the rights waived. If there is any question as to a person’s competence to sign a removal AMERICAN EXILE: Rapid Deportations That Bypass the Courtroom 105 Case: 14-50393, 02/07/2017, ID: 10304776, DktEntry: 43-2, Page 108 of 203 order and waive his or her rights, based on age, disability, medical condition, or any other factor, DHS should refer the individual for a full immigration hearing. j. DHS should develop a complaint process for individuals who allege unfair or abusive treatment, which would provide for a prompt and detailed response to the complaint and would also analyze complaints to identify problematic trends and practices that need to be addressed through training or other corrective action. k. Periodic audits by an independent monitor should be ordered to ensure compliance with applicable law and the above screening, and to identify individual ofﬁcers who consistently fail to comply with the law, regulations, and policies for implementing the screening tool and ensuring fair and appropriate conduct. The monitor should have access to a statistically signiﬁcant sampling of video-recordings and summary removal orders in conducting his or her review. 2. Detention of Individuals Facing Summary Removal To ensure that individuals facing summary removal from the United States are able to exercise their rights and are not compelled to abandon them due to a coercive and harmful environment, DHS must do the following: hez 17 a. Create an ofﬁce for CBP detention operations, planning, and oversight, and anc 2, 2 short-term ta-S monitoring of 0 implement routine and transparenteral independent u ry r v. P make reports a on these inspections detention facilities. This ofﬁce should n Feb based SA in U hived o available to ed public and Congress. it the b. C 3 arc 39detention condition standards for CBP facilities and make Create enforceable -50 o. 14 N standards publicly available. those c. Detain individuals only as a last resort and for the shortest time necessary, with regular review of the necessity and appropriateness of continued detention. d. Release asylum seekers who have passed their credible fear interviews as soon as possible. e. Remove unaccompanied children and families with children from detention as soon as possible, and place requests for additional funds to expand alternatives to detention of families. f. Ensure that all individuals are provided with humane treatment and basic necessities when detained, including the following: i. Adequate food and water. ii. Medical care, including adequate medical screenings in both CBP and ICE detention and prescription medications for preexisting conditions. 106 AMERICAN CIVIL LIBERTIES UNION Case: 14-50393, 02/07/2017, ID: 10304776, DktEntry: 43-2, Page 109 of 203 iii. Appropriate temperature control and lighting, taking into account the clothing individuals are wearing, their physical activity levels in detention, and any requests detainees make for temperature changes. iv. Access to toilet and shower facilities, with sufﬁcient privacy to prevent avoidable viewing of detainees while showering, performing bodily functions, or changing clothing. v. Blankets and bedding. vi. Hygiene and sanitary items. g. Address immediate physical and mental health needs using qualiﬁed medical professionals. h. Ensure that all facilities where DHS detains individuals, for whatever length of time, should be publicly identiﬁed and subject to regular independent inspections. i. Fully implement the Prison Rape Elimination Act (PREA) at all CBP facilities and expedite the PREA requirement of comprehensive training for ez all ofﬁcers and agents who encounter detaineesncholding cells. 7 a in h 01 ,2 lta-S erawithinbruary 2 arrival at any DHS j. Ensure detainee access to v. P telephones two hours of SA an individual is detained, except during counts, n Fe facility and atin U times ed o all other v C ted 93 archi meals,iand the time designated for sleeping; calls to legal services providers 503 and consulates should be provided at no cost to detainees. . 14No k. Ensure that attorneys are given broad access to detainees, including current and potential clients, and a private space in which to interview them; access should be provided at all times other than during counts, meals, and the time designated for sleeping. l. Require CBP to develop a detainee locator system for short-term custody, similar to the ICE detainee locator system, to allow counsel and family members to determine where individuals are being held. m. Create a free, conﬁdential emergency hotline in each facility so that individuals can call to report abuse 24 hours a day, including sexual assault by CBP, ICE, or any other DHS ofﬁcial; the hotline number should be publicly displayed in a location consistently visible to detainees, along with information on reporting assaults, which should be posted in multiple languages reﬂecting those spoken by the detainee population. Ensure that lawful, nonperishable personal belongings of an individual in CBP custody are returned to the individual upon the individual’s removal or release from CBP custody. AMERICAN EXILE: Rapid Deportations That Bypass the Courtroom 107 Case: 14-50393, 02/07/2017, ID: 10304776, DktEntry: 43-2, Page 110 of 203 B. Expedited Removal 1. To the extent DHS continues to use expedited removal, it should cease to use expedited removal against the following: a. Individuals who are prima facie eligible for relief from removal or prosecutorial discretion and, instead, parole such individuals into the United States for removal proceedings before an immigration judge; b. Children; and c. Individuals who have entered the United States. 2. DHS should record all expedited removal proceedings, including credible fear interviews. 3. DHS should train its staff that an expedited removal order should never be issued against an individual arriving in the United States with facially valid travel documents that authorize entry to the United States. If the examining DHS ofﬁcer believes the individual intends to immigrate or act in some way that contravenes their facially valid visa, the ofﬁcer should allow the person to withdraw their application for admission or refer the individual to an immigration judge for regular removal proceedings. nchez 7 4. 5. Sa 201 y 2, alta- ruorder that includes a r DHS should refrain from issuing an expedited removal ar v. Pe n Fe Ato U.S. citizenship.b DHS chooses to pursue ﬁnding of fraud or a false claim If o US ived ed in referrthehindividual so charged to an immigration judge those charges,iit should a c Ct 3 3 for a removal hearing9 4-50 under INA § 240. 1 No. Promulgate regulations requiring that expedited removal orders be promptly provided in writing in the primary language spoken by the person subject to the order and that the order and its consequences be explained to the individual by a competent interpreter, where necessary, in a language they understand. C. Reinstated Orders of Removal 1. In addition to persons who, under the basic screening tool, DHS should not be processing through reinstatement, DHS should also decline to reinstate orders of removal, and instead refer individuals for full hearings under INA § 240 when the non-citizen meets any of the following: a. Is under 21 years of age or was not yet 21 at the time of his or her prior deportation; b. Has lived in the United States for 5 years; c. Has U.S. citizen, LPR, or DACA-approved children, parents, or a spouse; 108 AMERICAN CIVIL LIBERTIES UNION Case: 14-50393, 02/07/2017, ID: 10304776, DktEntry: 43-2, Page 111 of 203 d. Is being subjected to reinstatement for a removal order that was previously issued in a summary removal; e. Is an asylum seeker or may possess a non-frivolous claim to withholding of removal and/or protection under the U.N. Convention Against Torture; f. Has a signiﬁcant mental disability; or g. May be eligible for other relief from removal or prosecutorial discretion. 2. DHS should adopt a formal policy, and issue guidance, that if an underlying removal order has been invalidated in a U.S. court, including but not limited to illegal reentry proceedings under 8 U.S.C. § 1326, the prior order will not be reinstated. 3. DHS should adopt a formal policy, and issue guidance, that if the legal basis for the underlying removal order has subsequently been invalidated through a change in law, the prior order will be vacated, not reinstated. 4. DHS should recognize that, consistent with INA § 208, individuals in reinstatement of removal proceedings are eligible to apply for asylum as well as withholding of removal. 5. DHS should promulgate regulations requiring that reinstatement orders be hez ancspoken by017 2 promptly provided in writing in the primary -S al alanguage ry 2, the person a erandtits consequences be explained to u P subject to the order and that the.order Febr SA v d on where necessary, in a language the the individual by in U ve d a competent iinterpreter, individual ite understands.arch C 6. 393 4-50 that when its ofﬁcers ask individuals facing removal if they 1 DHS.should require Noreturning to their country of origin, they do so in the primary language the fear person understands. 7. Before a reinstatement order is issued, DHS should allow the non-citizen an opportunity to ﬁle a non-frivolous motion to reopen the underlying removal order. D. Administrative Voluntary Departure (Voluntary Return) 1. DHS should create a multilingual informational video, with input from nongovernmental stakeholders, that an individual must watch before accepting voluntary return. 2. DHS should modify the forms used in the voluntary return process to include information about all legal consequences of voluntary return and ensure that all individuals are provided such forms in the primary language they understand. 3. DHS should provide oral notice of rights and advisals of voluntary return’s consequences in the primary language that the individual understands. AMERICAN EXILE: Rapid Deportations That Bypass the Courtroom 109 Case: 14-50393, 02/07/2017, ID: 10304776, DktEntry: 43-2, Page 112 of 203 4. Before completing processing of an individual for voluntary return, DHS should provide a two-hour window for that individual to use a phone at no charge to attempt to contact a family member, a legal services provider, or the consulate of their country of origin. 5. DHS should prominently post a multilingual notice of rights and current phone numbers for legal services providers in all facilities where individuals are processed for voluntary return, and it should do so in a manner that is regularly accessible to those individuals. 6. All immigration enforcement ofﬁcers should recognize they have discretion to allow individuals taking voluntary return to have up to 120 days to depart from the United States, and they should exercise that discretion unless individual circumstances deem otherwise. 7. DHS should train and retrain ofﬁcers to emphasize that they may not attempt to inﬂuence the decisions of individuals being given the option of voluntary return. 8. DHS should create a meaningful way for individuals who believe that their voluntary returns were unfair to have their cases reexamined and, if substantiated, for the individuals to be returned to the United States and placed in the situation they were in before taking voluntary return. ez anch , 2017 a-S eralt bruary 2 .P SA (INA 238(b), E. Administrative Orders of iRemoval v ed§on Fe or “238b”) n U hiv ited C arc 1. DHS should initiate the3 39 administrative removal process only after a person -50 has completed his or her criminal sentence and been transferred to ICE, or o. 14 N alternatively ensure that the individual has the opportunity to meet with immigration legal services and complete any appeals of his or her criminal conviction prior to the initiation of the administrative removal process. To the extent that an individual is eligible for early release from a criminal sentence on condition that he or she agrees to administrative removal, DHS must provide the individual with an advisal of the consequences of such a removal order and a list of immigration legal services with which he or she can consult prior to making such a decision so he or she is aware of any potential challenges to removal he or she may be forfeiting. 2. Given the complexity of immigration law and the unstable list of crimes considered an aggravated felony, DHS should require that an individual placed in 238b proceedings be given a meaningful opportunity to consult with an expert in criminal immigration law who can help the individual evaluate whether his or her crime is an aggravated felony or other designated removable offense such as a crime involving moral turpitude (CIMT). 3. DHS should decline to use administrative removal and instead refer an individual to removal proceedings under INA § 240 whenever (1) there is a non- 110 AMERICAN CIVIL LIBERTIES UNION Case: 14-50393, 02/07/2017, ID: 10304776, DktEntry: 43-2, Page 113 of 203 frivolous basis for questioning whether the underlying crime is an “aggravated felony” or other designated offense that triggers administrative removal; (2) conviction records are either inconclusive or unavailable; or (3) the individual would be prima facie eligible for discretionary relief from removal were he or she placed in regular removal proceedings under INA § 240. 4. DHS should provide individuals in 238b proceedings with information both verbally and in writing, in the primary language that they speak, about forms of relief they may be eligible for as well as the categories of individuals who are statutorily exempt from removal under INA § 238(b). 5. DHS should ensure that a full record of the administrative removal proceeding is created, maintained, and provided at no charge to the individual. 6. DHS should ensure that all ofﬁcers involved in the administrative removal process are given regular, specialized training on what crimes constitute aggravated felonies or the other offenses designated as triggering administrative removal, and additional training and materials whenever the relevant law changes. F. Stipulated Orders of Removal 1. 2. ez nremoval 2017 aof ch ,to immigrants DHS should refrain from issuing stipulated orders lta-S judge y 2 unless they have a hearing before an era immigration ruarto assess for relief .P b eligibility and ensure that they have agreed to the order knowingly and voluntarily. SA v d on Fe U in ive Cited 9all individuals of their entitlement to request a prompt bond arch DHS should advise 3 503 hearing before an immigration judge whether or not they elect a stipulated . 14No removal order. 3. DHS should refrain from issuing stipulated orders of removal where an individual is prima facie eligible for relief from removal or prosecutorial discretion, unless such individual is represented by counsel and explicitly waives in writing, knowingly and voluntarily, his or her opportunity to seek such relief or exercise of discretion. G. Special Protections for Children 1. DHS should ensure that unaccompanied children, in keeping with federal law, are transferred out of DHS custody and into ORR care, optimally within 24 hours but no later than 72 hours after their apprehension. 2. DHS should develop a multilingual informational video for children that explains to them what their rights are when they are apprehended and facing removal, and DHS should require its ofﬁcers to show the video to children before accepting their voluntary return. AMERICAN EXILE: Rapid Deportations That Bypass the Courtroom 111 Case: 14-50393, 02/07/2017, ID: 10304776, DktEntry: 43-2, Page 114 of 203 3. DHS should use an outside agency or local nongovernmental organization with specialized experience in working with immigrant children to undertake the immediate screening and interviewing of unaccompanied minors from Mexico or Canada that is required under current law within 48 hours of their apprehension by DHS. In the interim, USCIS staff can undertake this responsibility. In consultation with child protection experts and child psychologists, DHS should revise CBP Form 93 and Form I-770 and create a uniform, mandatory, and comprehensive list of screening questions for children from Mexico or Canada who, under the TVPRA, can take voluntary return only if DHS makes an individualized determination pursuant to 8 U.S.C. § 1232(a)(2) that each child (1) has not been a victim of a severe form of trafﬁcking in persons, and there is no credible evidence that such child is at risk of being trafﬁcked upon return to his or her home country; (2) does not have a credible fear of persecution in his or her home country; and (3) is able to make an independent decision to withdraw his or her application for admission to the United States. 4. DHS should employ child welfare experts and/or child psychologists to conduct one-on-one screenings of Mexican and Canadian unaccompanied minors within 48 hours of their apprehension in order to assess each of the three factors listed in § 1232(a)(2) (regarding trafﬁcking, credible fear, and independent withdrawal). ez 5. h Sanc 2, 2017 ta-the burden of afﬁrmatively DHS, in conducting such screenings, should l rabear ruary v. Pe n in § 1232(a)(2), and should demonstrating each of the three factors listed Feb o USA any doubt with respect to any of the three require that, in cases in where there isved ited rchi to ORR care and refer the child for an C factors, its ofﬁcers transfer a child 393 the immigration hearing. 4-50 1 No. 6. With respect to the third factor listed in § 1232(a)(2) (independent withdrawal), DHS should ensure a child is not deemed competent to make an independent decision to return to their home country unless he or she is informed and understands that (a) he or she will be transferred to ORR custody and receive appropriate shelter, care, and services if he or she chooses to refuse return; (b) he or she has a right to see a judge if DHS chooses to pursue removal; and (c) he or she will have an opportunity to apply for forms of relief that may permit him or her to stay in the United States. 7. In the event that screening of an unaccompanied minor from Mexico or Canada pursuant to § 1232(a)(2) cannot or does not take place within 48 hours of the child’s apprehension, DHS must, under the TVPRA, transfer that child to ORR custody, and if it wishes to pursue removal of that child, it must refer him or her for an immigration hearing. 8. DHS should ensure that any screenings or interviews with children take place in an appropriate, child-friendly setting that is designed to make children feel safe and comfortable, and that does not resemble a typical jail cell or law enforcement interrogation room. 112 AMERICAN CIVIL LIBERTIES UNION Case: 14-50393, 02/07/2017, ID: 10304776, DktEntry: 43-2, Page 115 of 203 9. DHS should provide regular and specialized training for all ofﬁcers who interact with unaccompanied minors on children’s rights in the immigration system, the appropriate way to interact with children, and language that should not be used with children that may deter them from seeking protection in the United States or that may create an atmosphere of mistrust, fear, coercion, or misunderstanding. 10. DHS should expand the jurisdiction of the existing USCIS ombudsman and require that he or she routinely inspect the facilities in which children are held and ensure children are treated humanely by DHS staff and not subject to any threats, misrepresentation, or coercion. 11. DHS should ensure that all children have the opportunity to speak with a parent, guardian, or other adult advocate in a conﬁdential setting before they are given any forms to sign or permitted to accept voluntary return. 12. DHS should ensure that all children have the meaningful opportunity to consult, in person or via phone, with a person entitled to represent others in immigration proceedings, as deﬁned in 8 C.F.R. § 1291.1, an employee of a nonproﬁt services provider, or a child welfare specialist—prior to being permitted to accept voluntary return. ez anch , 2017 a-S eralt bruary 2 .P SA v d on Fe in U hive ited C arc 393 -50 o. 14 N AMERICAN EXILE: Rapid Deportations That Bypass the Courtroom 113 Case: 14-50393, 02/07/2017, ID: 10304776, DktEntry: 43-2, Page 116 of 203 TO THE DEPARTMENT OF JUSTICE (DOJ) A. On Prosecutions for Immigration Crimes 1. Asylum seekers should not be punished for seeking admission to the United States. To that end, the Department of Justice should do the following: a. Ensure that individuals referred for a credible fear or reasonable fear interview or who claim fear of returning to their country of origin before or during their prosecution for illegal entry or reentry are not prosecuted until after they have completed a credible fear or reasonable fear interview, pursued their asylum claim in immigration court, and exhausted the appeal process, should they wish to do so. b. Ensure that asylum seekers are not prosecuted for use of false documents by ensuring that asylum seekers are ﬁrst allowed to pursue ez anch , 2017 asylum relief; if and only if they are found not to have an asylum claim a-S (after an asylum interview, pursuing relief in immigration court, and eralt bruary 2 .P SA v d on Fe exhausting appellate remedies) should a person making a frivolous or in U hbe e fraudulent asylum claim iv prosecuted for use of false documents to ited C 3 arc obtain 5039 admission. - 2. 14 No. a more judicious use of prosecutorial resources, the Department of To ensure Justice should: a. Direct U.S. Attorneys to de-prioritize 8 U.S.C. § 1325 (illegal entry) and 8 U.S.C. § 1326 (illegal reentry) prosecutions except in speciﬁc cases where such charges advance one of the Department’s current prosecutorial interests: national security, violent crime, ﬁnancial fraud, and protection of the most vulnerable members of society. b. Direct U.S. Attorneys not to initiate § 1325 or § 1326 charges against individuals who are currently under the age of 18 or who were under the age of 18 at the time of their prior removal from the United States. c. In the case of violent crime, direct U.S. Attorneys to pursue § 1325 or § 1326 charges only against individuals who have convictions for serious, violent felonies and whose sentences for those felonies were completed within the previous ﬁve years. 114 AMERICAN CIVIL LIBERTIES UNION Case: 14-50393, 02/07/2017, ID: 10304776, DktEntry: 43-2, Page 117 of 203 d. Prosecutors should exercise discretion not to pursue a § 1326 charge when the nature of the prior removal order, prior entry conviction, or prior reentry conviction that justiﬁes such a charge presents signiﬁcant due process concerns. e. Prosecutors should not pursue a § 1326 charge where the individual’s prior removal order was a summary removal order. f. Prosecutors should exercise discretion not to pursue § 1325 and § 1326 charges against certain vulnerable categories of individuals (for example, victims of domestic violence and the elderly) or against individuals with signiﬁcant U.S. ties (for example, individuals with U.S. citizen or lawful permanent resident spouses, parents, or minor children, and individuals who are or are related to veterans and members of the U.S. Armed Forces). g. DOJ and DHS should end the practice of appointing Border Patrol attorneys or other DHS employees to act as Special Assistant U.S. Attorneys, or in any prosecutorial capacity, in § 1325 and § 1326 cases. B. Executive Ofﬁce for Immigration Review 1. 2. ez anch , 2017 a-S 2 Consistent with INA § 208, permit individuals in ruary eralt bthe reinstatement of removal P v. e or administrative removal A US process to apply F asylum, not just withholding of d on for in ve removal orited relief. C CAT 93 archi 503 Ensure14-all individuals who accept stipulated removal orders be brought . that No before an immigration judge within 48 hours—or at most within 7 days—to ensure that they are knowingly and voluntarily waiving their right to a removal hearing before an immigration judge. 3. Provide regular and specialized training for all court ofﬁcers who interact with unaccompanied minors on children’s rights in the immigration system, the appropriate way to interact with children, and language that should not be used with children that may deter them from seeking protection in the United States. 4. Provide appointed counsel to all children facing removal from the United States who go before an immigration judge. AMERICAN EXILE: Rapid Deportations That Bypass the Courtroom 115 Case: 14-50393, 02/07/2017, ID: 10304776, DktEntry: 43-2, Page 118 of 203 TO THE DEPARTMENT OF STATE 1. Issue guidance for all consular processing ofﬁces clarifying that for individuals who have been unlawfully deported from the United States, consular ofﬁces are authorized to immediately issue travel documentation and proof of residency so those individuals may return to the United States. 2. Issue guidance for all consular processing ofﬁces explicitly authorizing consular ofﬁcers to (1) review and override an expedited removal order, where ofﬁcers believe the expedited removal order was erroneous; and (2) to immediately issue both a new visa and a I-212 waiver for the individual. TO CONGRESS ez anch , 2017 a-S eralt bruary 2 .P SA v d on Fe A. Expedited Removal ited in U chive C ar 393 1. Amend INA 4-50 to expressly prohibit the use of expedited removal against 1 § 235(b) No. children, persons with disabilities, individuals apprehended within the United States (including individuals apprehended within 100 miles of the border), and individuals arriving at ports of entry after a brief trip outside the United States but who have been in the United States for at least two years prior to their departure. 2. Amend INA § 235(b) to expressly allow an individual placed in expedited removal proceedings to be represented by counsel during all stages of the process and to require immigration ofﬁcers to inform the individual of that right before subjecting them to the process. 3. Amend INA § 235(b) to permit review commensurate in scope with that provided for removal orders in the Court of Appeals by petition of review. 4. Amend INA § 242(a)(2)(D) (8 U.S.C. § 1252(a)(2)(D)) to clarify that nothing in Section 242(a)(2)(A) precludes judicial review of constitutional claims or questions of law relating to an expedited removal order, including challenges to unwritten policies and procedures. 5. Amend INA § 242(e)(3) to clarify that the 60-day deadline runs from the time an expedited removal order is applied to an individual. 116 AMERICAN CIVIL LIBERTIES UNION Case: 14-50393, 02/07/2017, ID: 10304776, DktEntry: 43-2, Page 119 of 203 B. Special Protections for Children 1. Expressly provide for appointment of counsel to all children facing removal from the United States. 2. Expressly require that all children see an immigration judge prior to removal, voluntary or otherwise, from the United States and that they be given adequate time and resources to prepare their cases. 3. Expressly require that children arriving in the United States with or without their parents be released to less restrictive alternatives to detention while going through the immigration enforcement process. Require that children be transferred out of CBP custody as quickly as possible and that in no case they be held in CBP custody beyond 72 hours. Clarify that an increase in the number of children arriving in the United States is not an “exceptional circumstance” under the TVPRA that can justify extending the detention of a child in CBP custody and delaying their transfer to ORR custody beyond 72 hours. 4. Amend 8 U.S.C. § 1232(a)(2) of the TVPRA so that all unaccompanied children, including those arriving from contiguous countries, are treated equally and fairly, with automatic transfer into ORR custody within 72 hours and the right to a hearing before an immigration judge. Expressly prohibit DHS from allowing unaccompanied children from any country to accept voluntary return without a ez anch , 2017 hearing at which the child is represented bytcounsel. a-S 2 5. ry ral v. Pe ndesirebrua to their home country e to return Expressly require that children who state a F A in US h a ed o to DHS or ORR ofﬁcials receiveivprompt hearing before an immigration judge rc Cited 93 statement. Require that the immigration judge fully advise within 48 hours of such a 3 0 the child of -5 or her rights and of the availability of forms of immigration relief, o. 14hisnot limited to a T visa, U visa, SIJS, or asylum. Provide that if the N including but child, following such advisal by the immigration judge, makes an informed and independent decision to return to his or her home country, the immigration judge may grant voluntary departure. C. Other Recommendations to Improve Fairness in Removals 1. Amend INA § 240(d) to explicitly require that any individual who signs a stipulated order of removal be brought before an immigration judge before the order is entered. 2. Appropriate funds to EOIR to provide appointed counsel to all children facing removal. 3. Appropriate funds to EOIR to hire additional immigration judge teams in order to clear the nationwide backlog in immigration courts. 4. Create a pilot project that assigns immigration judges to designated international airports in the United States, including but not limited to airports serving New York City, Los Angeles, Houston, Miami, and Detroit, so that immigration judges could immediately conduct hearings for individuals whom CBP ofﬁcers suspect are inadmissible, rather than having CBP issue expedited removal orders. AMERICAN EXILE: Rapid Deportations That Bypass the Courtroom 117 Case: 14-50393, 02/07/2017, ID: 10304776, DktEntry: 43-2, Page 120 of 203 GLOSSARY OF TERMS Administrative Removal (or “238b removal”), authorized by INA § 238(b), is a summary removal procedure that can be used to issue a removal order to a non-citizen who is not a lawful permanent resident in the United States and who has been convicted of an aggravated felony or other qualifying offense under immigration law. These orders are issued by an immigration ofﬁcer, sometimes while the individual is still in criminal custody. Consequence Delivery System (CDS) describes several instruments utilized by the Department of Homeland Security to deter unauthorized entry and reentry to the United States through civil and criminal penalties. Some of these mechanisms include the use of summary removal orders; referral for criminal prosecution for illegal entry or reentry; and “lateral deportation” or “remote repatriation,” where a Mexican national arrested at the U.S. border is deported to a location far from where he or she entered the United States. Convention Against Torture (CAT) is an international human rights treaty, signed and ratiﬁed by the United States in 1994, that obligates countries that have signed it to prohibit and prevent torture and cruel, inhuman, or degrading treatment or punishment in all circumstances. In immigration proceedings, CAT protections such as withholding of removal and deferral of removal ensure that individuals are not returned to places where they would face torture. Aggravated Felony is a category of crimes, listed in the Immigration and Nationality Act (INA) at 8 U.S.C. § 1101(a)(43), that trigger severe penalties for non-citizens, making them deportable and ineligible for most forms of relief from removal. The crimes considered “aggravated felonies” include crimes that, under state criminal laws, are not necessarily felonies and may not even include a term of imprisonment. The INA identiﬁes Convention Relatingezthe Status of Refugees to 21 types of crimes in the aggravated felony category 7 nch an international human rights (Refugee -Sa Convention) is , 201 ranging from tax evasion to rape, and what is considered 2 ta y eral b been implemented into U.S. law through treaty that has ruar an aggravated felony varies in accordance with state law. v. P e Refugee Convention requires that asylum A INA n F Some aggravated felonies do require that the individual in US hived o§ 208. Thepenalized for their illegal entry or presence seekers not be Cited 93 a was sentenced for a period of 365 days or more for therc and that they be given the opportunity to seek asylum; it 3 crime to constitute an aggravated felony—for example, -50 . 14violence. Even if prohibits the expulsion of asylum seekers to places where burglary, a crime of theft, or a crime of No they face persecution. the person never actually served any time in prison for the offense—for example, if the person receives a “suspended Credible Fear Interview (CFI) is a threshold interview sentence” from a criminal court but is not required to serve conducted by an asylum ofﬁcer for individuals subject all or any part of that sentence in prison—his or her crime to expedited removal who claim fear of persecution or can be considered an aggravated felony. torture if returned to their country of origin. The asylum ofﬁcer then determines whether the claim is sufﬁciently Asylum is a type of relief from deportation; it is given to meritorious that the individual can receive a full asylum qualiﬁed applicants who fear returning to their country of hearing in court; if the ofﬁcer decides the non-citizen’s fear nationality because of past persecution or a well-founded is not “credible,” the non-citizen can be removed through fear of persecution on account of race, religion, nationality, expedited removal. membership in a particular social group, or political opinion. Individuals granted asylum can petition for their family members to come to the United States and may apply for lawful permanent residence and, ultimately, citizenship. 118 AMERICAN CIVIL LIBERTIES UNION Case: 14-50393, 02/07/2017, ID: 10304776, DktEntry: 43-2, Page 121 of 203 Customs and Border Protection (CBP) is a law enforcement agency within the Department of Homeland Security and includes several components, including the Ofﬁce of Field Operations (OFO) and Customs and Border Patrol (“Border Patrol”). OFO is responsible for border security, including screenings, inspection, and admission at ports of entry. Border Patrol, which operates beyond ports of entry within 100 miles of U.S. international borders, arrests individuals whom it suspects of unlawfully entering the United States. Both Border Patrol and OFO arrest, detain, and deport individuals through summary removal procedures like expedited removal. Deportation or “removal” under the Immigration and Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA) is a federal law that signiﬁcantly altered immigration law and procedures. One of its most consequential changes was to create expedited removal at the U.S. border so that individuals who previously would have been given an immigration hearing if they arrived without proper travel documents could instead be deported by immigration ofﬁcers without a hearing. Illegal Reentry is a federal crime and is the reentry into the United States of an individual who has previously been deported and has not been given permission to reenter the United States. Illegal reentry is a felony under 8 U.S.C. § 1326 and is punishable by up to 20 years in prison. Nationality Act is the forcible expulsion of a deportable or inadmissible non-citizen from the United States with a formal removal order issued either by an immigration Immigration and Customs Enforcement (ICE) is an ofﬁcer or an immigration judge. Throughout this report, agency under the Department of Homeland Security the terms “deportation” and “removal” are used for responsible for arresting, detaining, and prosecuting individuals deported with a removal order; individuals non-citizens accused of violating immigration law in who take voluntary return, which requires he or she leave immigration court. z the country and also comes with civil consequences should che 7 the individual return to the United States, are referred to -San y 2, 201 ta al Immigration and Nationality Act (INA) is the basic body as “returning” or being “repatriated” to their countries of . Per uar v Febr law in the United States. Passed in 1952 and A of immigration origin. on US ed in archived amended numerous times since then, the INA collected, Cit codiﬁed, and structured the extant U.S. immigration laws. Expedited Removal, authorized under 0393 5INA § 235, . 14- applies to is a summary removal procedure that No Inadmissible is an immigration law term that describes all unauthorized immigrants at ports of entry and a non-citizen who is not eligible to be admitted to the unauthorized immigrants found within the United States United States under U.S. immigration law because he or and within 14 days of arrival if arrested within 100 miles of she lacks valid admission documents or based on certain the U.S. international border. Expedited removal involves a characteristics such as prior immigration violations, formal removal order issued by an immigration ofﬁcer or criminal history, or medical conditions. Border Patrol agent and includes a minimum ﬁve-year ban on reentering the United States. Lawful Permanent Resident (LPR) (also known as a “green card holder”) is a non-citizen authorized to live and Illegal Entry is a federal crime and is the unauthorized work in the United States on a permanent basis. entry into the United States without being inspected and admitted by an immigration ofﬁcer. It is a misdemeanor under 8 U.S.C. § 1325 and is punishable by up to 6 months in federal prison. AMERICAN EXILE: Rapid Deportations That Bypass the Courtroom 119 Case: 14-50393, 02/07/2017, ID: 10304776, DktEntry: 43-2, Page 122 of 203 Non-Refoulement Obligation (“non-refoulement”) Relief from Removal is a type of immigration beneﬁt under Article 3 of the Convention Against Torture is a legal requirement, binding on the United States through the Foreign Affairs Reform and Restructuring Act of 1998 (“FARRA”). Non-refoulement requires that the U.S. government not expel, extradite, or involuntarily return a person to a country in which there are substantial grounds for believing that he or she would be in danger of being subjected to torture. granted to an individual, although technically “removable” because of his or her immigration status and other factors, when the government determines he or she should not be deported and should be allowed to stay in the United States based on equitable factors recognized in the INA such as length of residence and family ties. While relief is discretionary, some individuals cannot be deported even if they are “removable” (e.g., an unauthorized immigrant or a lawful permanent resident who has been convicted of certain crimes) because he or she would face persecution or torture if removed to his or her country of origin. This is not considered “relief,” as it is mandatory in keeping with U.S. law and obligations. Notice to Appear (NTA) is the “charging document” issued by Immigration and Customs Enforcement to a person whom the U.S. government seeks to deport from the United States by means of a regular removal hearing before an immigration judge. The NTA starts the immigration case, in court, against a non-citizen. Operation Streamline, currently in effect in four judicial districts, is a “zero-tolerance” program that requires the federal criminal prosecution and imprisonment of all unlawful border crossers. Judges combine the initial appearance, arraignment, plea, and sentencing into one mass hearing for the 70–80 defendants processed daily. Attorneys are often not provided until courtroom appearances. USA Stipulated Order of Removal, authorized under INA § 240, is a type of summary removal in which a noncitizen accepts his or her deportation and waives arguments to relief or to dispute his or her removability. It is reviewed and signed by an immigration judge; however, immigration judges are not required to meet with the individual taking a stipulated order or to ez h question him or her in person. 17 anc ta-S ary 2, 20 ral Summary Removal v. Pe n Febru Procedures are processes by which immigration enforcement ofﬁcers of the Department of o ed in archived Homeland Security order a non-citizen deported from it C Reasonable Fear Interview (RFI) is an interview the United States or process a non-citizen to be returned, 393 4-50 who have conducted by an asylum ofﬁcer o. non-citizens for 1 without a formal removal order, to their country of N a fear of persecution or torture in their country of origin but who have either a prior order of removal or have been convicted of certain offenses. These individuals, in the government’s view, are not entitled to asylum and can receive only less permanent protection with fewer beneﬁts. As in the credible fear process, an asylum ofﬁcer determines whether the non-citizen’s claim is sufﬁciently meritorious that he or she should receive a hearing in court on his or her claim for protection. Reinstatement of Removal, authorized under INA § 241(a)(5), is a summary removal order that may be issued to individuals who previously received a formal removal order, departed the United States, and subsequently returned to the United States without permission from the U.S. government. These orders are issued by immigration ofﬁcers, not judges. 120 AMERICAN CIVIL LIBERTIES UNION origin. These procedures do not involve a judge or a full hearing but in many cases have the same consequences— deportation, bars on reentry, and penalties for returning without authorization—as a removal order issued by a judge from the Department of Justice after a full hearing. Summary removal procedures include expedited removal, reinstatement of removal, administrative removal (238b), stipulated orders of removal, and voluntary return. Case: 14-50393, 02/07/2017, ID: 10304776, DktEntry: 43-2, Page 123 of 203 Trafﬁcking Victims Protection Reauthorization Act (TVPRA) is a federal law that provides several protections for victims of trafﬁcking and includes critical safeguards for unaccompanied children entering the United States. In particular, the TVPRA requires that unaccompanied children from “noncontiguous countries” go before an immigration judge to have their cases heard. Children from the contiguous countries of Mexico and Canada must be screened to determine whether they have an asylum claim, whether they are at risk of or a victim of trafﬁcking, and whether they have the capacity to choose to return to their country of origin. If not, they must see an immigration judge. Withholding of Removal is a form of protection stemming from U.S. obligations under the Convention Against Torture and the Refugee Convention that prevents the return or removal of a person to a country where he or she faces torture or persecution. This protection does not include all the beneﬁts of asylum, such as the right to petition for one’s children to come to the United States, and is not a permanent status, nor does it lead to permanent status in the United States. T Nonimmigrant Visa (T visa) is a visa for individuals arriving or already inside the United States who are or have been victims of human trafﬁcking and who are willing to assist in an investigation or prosecution of human trafﬁcking. U Nonimmigrant Visa (U visa) is a visa for victims of certain crimes—ones that either occurred in the United ez anch , States or violated U.S. laws—who are willing to help in an a-S eralt bruary 2 investigation or prosecution of that crime. Some of the . P v e qualifying crimes include domestic violence, kidnapping, USA ed on F in and rape. rchiv Cited 2017 3a 5039 Violence Against Women Act. 14 allows a battered No (VAWA) spouse, child, or parent to apply for a visa petition under the INA if the abuser was a U.S. citizen or lawful permanent resident. Voluntary Return/Administrative Voluntary Departure is a tool that allows non-citizens to “accept” repatriation to their country of origin without a formal removal order; as such, it does not incur all of the penalties associated with a formal removal order. However, it does require the individual to waive a hearing and the opportunity to make claims for relief, to depart from the United States, and to wait outside the United States, in some cases for many years, until he or she can apply to return. AMERICAN EXILE: Rapid Deportations That Bypass the Courtroom 121 Case: 14-50393, 02/07/2017, ID: 10304776, DktEntry: 43-2, Page 124 of 203 ACKNOWLEDGEMENTS T Law Center; and Shoba Sivaprasad Wadhia, Pennsylvania State Dickinson School of Law. We would also like to thank Grace Meng, Senior Researcher, Human Rights Watch, for her advice and inspiration in choosing this project. his report was researched and written by Sarah Mehta, The ACLU is particularly grateful to the Mexican human Human Rights Researcher at the ACLU. Within the rights attorneys and Mexican migrant shelters and their ACLU, this report was reviewed in full by Jennifer Turner, staff who provided assistance and space for the interviews, Senior Researcher, Human Rights Program; Jennifer Chang including Esmeralda Flores, Gilberto Martínez, Blanca Newell, Senior Staff Attorney, Immigrants’ Rights Project; Cynthia Navarrete García, Perla del Ángel, Rocío Meléndez Chris Rickerd, Policy Counsel; and Jamil Dakwar, Director, Domínguez, Marla Conrad, Maria Gallegos, and Adalberto Human Rights Program. Portions of this report were also Ramos. reviewed by Jameel Jaffer, Director, Center for Democracy; Judy Rabinovitz, Deputy Director, Immigrants’ Rights Over one hundred individuals who had been deported or Project; Carl Takei, National Prison Project; and Ahilan were facing deportation shared their stories with the ACLU, Arulanantham, Deputy Legal Director, ACLU of Southern including intimate details about violence they had faced California, and Senior Staff Attorney, Immigrants’ Rights and their fears for their families on both sides of the border. Project. Gabriela Rivera, Staff Attorney, ACLU of San Diego The ACLU thanks all the individuals and their families & Imperial Counties, not only assisted in preparing the who were interviewed for this report for their courage and Freedom of Information Act requests (some of which she generosity in sharing their stories. is currently litigating), but also helped identify individuals interviewed for this report. Human Rights Program ez assistant Astrid Reyes provided invaluable interpretation anch , 2017 a-S services as well as research and administrative assistance, eralt bruary 2 P e and Terry Ding, paralegal for the Immigrants’ Rights SA v. U cases ed on F in Project, assisted in locating and procuring public legal hiv Cited 93alsorc and pleadings. Astrid Dominguez, ACLU of Texas, a 03 provided crucial interpretative assistance.5 . 14- No The ACLU is grateful to the following individuals for their assistance in interpreting during interviews for this report: Alejandra Ávila, Vicki Gaubeca, Araceli Gonzalez, Yanira Lemus, César López, Camilo Mejia, Michelle Stavros, and Rosa Valderrama. The ACLU would like to thank the following individuals for their incalculable assistance in both reviewing draft sections and providing expertise throughout the project: Lisa Brodyaga; Ira Kurzban; Jennifer Koh Lee, Western State College of Law; Erika Pinheiro and all of her colleagues at the Esperanza Immigrant Rights Project, Catholic Charities of Los Angeles; Trina Realmuto, National Immigration Project of the National Lawyers Guild; Marc R. Rosenbaum, Migration Policy Institute; Aryah Somers; Jessica Shulruff, Americans for Immigrant Justice; Jayashri Srikantiah, Stanford Law School; Stephanie Taylor, American Gateways; Karen Tumlin, National Immigration 122 AMERICAN CIVIL LIBERTIES UNION Case: 14-50393, 02/07/2017, ID: 10304776, DktEntry: 43-2, Page 125 of 203 ENDNOTES 8. Department of Justice, “Inspection and Expedited Removal of Aliens; Detention and Removal of Aliens; Conduct of Removal Proceedings; Asylum Procedures; Final Rule,” 62 Fed. Reg.10313, March 6, 1997. 9. a form that includes a paragraph explaining asylum to individuals processed for expedited removal. 8 C.F.R. 235.3(b)(2)(i). 1. 2. Statistics, Annual Report, , September 2014, available at publications/ois_enforcement_ar_2013.pdf. The remaining 75,142 removal orders could include orders issued by immigration judges such as voluntary departure (where the judge may not actually see the individual in person) as well as other summary removal the number of these removals through a Freedom of Information Act request but has not received a response from the Department of Homeland Security, which conducts these removals. 3. 4. Throughout this report, the terms “removal” and “deportation” are used interchangeably to refer to the compulsory repatriation of an individual with an order requiring their departure issued by the U.S. government. As discussed later in this report, “summary removal procedures” may also include administrative voluntary departure or “voluntary return” where an individual agrees to leave the United States without a formal order of removal. 10. United States Commission on International Religious Freedom, REPORT ON ASYLUM SEEKERS IN EXPEDITED REMOVAL, Feb. 8, 2005, available at http://www.uscirf.gov/index.php?option=com_ content&task=view&id=1892&Itemid=1. 11. spoke directly and who had a (prior or current) removal order when nor does it include individuals who were not deported by CBP at the border (for example, individuals arrested by ICE in the interior of the United States, including individuals who were soon after serving a criminal sentence or being arrested by local police anywhere in the United States). 12. As explained in the Methodology section of this report, full names are not used for individuals interviewed for this report in order to respect the sensitivity of the information communicated and because several of these individuals have on-going immigration cases. Full names are provided for individuals whose stories are already in the public domain. ez anch , 2017 a-S eralt bruary 2 .P SA v d on Fe generally Rethinking Removability, 65 in U hive 13. See ited F . L. R . 1803 (2013). rc C 3a 5. Throughout this report, the phrase “summary removal 5039 14. A U visa is a nonimmigrant visa given to crime victims who 14procedures” will be used to describe the various administrative assist law enforcement with the investigation and prosecution of No. LA EV removal processes where a person can be removed or returned from the United States without seeing a judge. These processes include expedited removal, reinstatement, administrative removal, voluntary return, and stipulated orders of removal. Their differences, including the claims that can be made and their consequences, are explained at length in the legal background section of this report. crimes. 6. Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (hereinafter “IIRIRA”), enacted as Division C of Rule.pdf. 104–208, 110 Stat. 3008 (Sept. 30, 1996). 7. TRACIMMIGRATION, Customs and Border Protection operates within 100 miles of 15. any international land or sea border, maximizing its interpretation of available at http:// 16. FINDINGS AND RECOMMENDATIONS RELATING TO THE 2012-2013 MISSIONS TO MONITOR THE PROTECTION SCREENINGS OF MEXICAN UNACCOMPANIED CHILDREN ALONG THE U.S.-MEXICO BORDER (“UNHCR CONFIDENTIAL REPORT”), , (“Immigration and Customs Enforcement (ICE) has had diminishing success in convincing Immigration Judges to issue removal orders. Such orders are now granted only about 50 percent of the time, the lowest level since systematic tracking began more than 20 years ago...During FY 2011 that rate had fallen to 70.2 percent; by FY 17. Sonora, Mexico. it was down to only 50.3 percent.”). ON THE 18. Memorandum for the Heads of Executive Departments and Agencies, 19. UNITED NATIONS HIGH COMMISSIONER FOR REFUGEES, CHILDREN RUN: UNACCOMPANIED CHILDREN LEAVING CENTRAL AMERICA AMERICAN EXILE: Rapid Deportations That Bypass the Courtroom 123 Case: 14-50393, 02/07/2017, ID: 10304776, DktEntry: 43-2, Page 126 of 203 AND MEXICO AND THE NEED FOR INTERNATIONAL PROTECTION (May 2014), 39 (hereinafter “UNHCR Report”), available at http://www. Texas were unrepresented in 2009. Texas Appleseed, System, March 2010, p. 13, available at http://www.texasappleseed. net/index.php?option=com_docman&task=doc_download&gid=313. 20. U.S. Senate, Committee on the Judiciary, “The Southern Border in Crisis: Resources and Strategies to Improve National Security,” S. Hrg. 109-1018 (June 7, 2005). 29. Julie Myers Wood & Wendy Young, , THE WALL STREET JOURNAL, Sept. 22, 2013, available at http://online.wsj.com/news/articles/SB10001424 21. This strategy is known as the “Consequence Delivery System” and includes several programs such as the use of formal summary removal orders, criminal prosecution for illegal entry and reentry, and remote repatriation. See generally Marc R. Rosenblum, Congressional Research Service, y, Jan. 6, 2012, available at http://fpc.state.gov/documents/organization/180681.pdf/. young as 5 facing an immigration judge with no representation.”). See generally , No. 2:14-CV-01026 (W.D.Wash. July 9, 2014), available at 30. Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (hereinafter “IIRIRA”), enacted as Division C of 22. To date, DHS has failed to provide complete data regarding recidivism rates, so evaluating the “success” of these Consequence possible. 23. U.S. Congress, Committee on the Judiciary, U.S. Senate, “The Southern Border in Crisis: Resources and Strategies to Improve National Security,” S. Hrg. 109-1018 (June 7, 2005); Vice President Joseph Biden, Remarks to the Press and Question and Answer at the Residence of the U.S. Ambassador, Guatemala City, Guatemala (June 20, 2014) (“none of these children or women bringing children will be eligible under the existing law in the United States.”), available at remarks-press-qa-vice-president-joe-biden-guatemala; Interview with Secretary of Homeland Security Jeh Johnson, NBC NEWS, MEET THE PRESS, July 6, 2014 (video) (“The goal of the Administration is to stem the tide and send the message unequivocally that if you come 104–208, 110 Stat. 3008 (Sept. 30, 1996). The various processes created in 1996 include expedited removal, administrative voluntary departure, reinstatement, administrative removal, and stipulated orders of removal. Each is discussed at length in subsequent sections of this report. 31. are currently being litigated requesting information as to the number of people considered a recent illegal entrant by virtue of where they were apprehended, and within that number, how many people were ez anch , 2017 a-S eralt bruary 2 .P information has SA v d on Fe not been released to date. U in ve P Cited 93 archi I32. Marc R.DRosenblum and Doris: Meissner, M T ,T D R 503 E , (April 2014) at 21 (“MPI Report”) available H . 14No at http://www.migrationpolicy.org/research/deportation-dilemmaIGRATION NSTITUTE UMANE to Panama (July 1, 2014) (stating incorrectly that people who are not available at http://m.state.gov.md228646.htm. 24. ILEMMA ECONCILING OLICY OUGH AND reconciling-tough-humane-enforcement. 33. at 4. . at 25. 35. 1967 United Nations Protocol Relating to the Status of Refugees, Jan. 31, 1967, 19 U.S.T. 6223, 6276. , 259 U.S. 276, 284-85 (1922). See also , 130 S.Ct. 1473, 1481 (2010) (“deportation is a particularly severe penalty”). 27. EPORTATION NFORCEMENT 34. , 189 U.S. 86, 100-01 (1903). 25. 26. HE 36. Immigration judges are administrative judges within the , 385 U.S. 276, 285 (1966). Justice. While they are “administrative” actors, they nonetheless are One federal appellate court compared the immigration code second only to the federal tax code in its complexity. 548 F.2d 37, 38 (2nd Cir. 1977); , 847 F.2d 1307, 1312 (9th Cir. 1987). , 28. VERA INSTITUTE FOR JUSTICE, IMPROVING EFFICIENCY AND PROMOTING JUSTICE IN THE IMMIGRATION SYSTEM: LESSONS FROM THE LEGAL ORIENTATION PROGRAM, May 2008, 1, available at http://www. organization, found that 86 percent of immigration detainees in 124 AMERICAN CIVIL LIBERTIES UNION is part of the agency (DHS) that is responsible for apprehending, detaining, prosecuting, and removing non-citizens. 37. , 588 (BIA 2011). 25 I&N Dec. 580, 38. Memorandum from John Morton, Director, ICE, “Exercising Prosecutorial Discretion Consistent with the Civil Immigration Enforcement Priorities of the Agency for the Apprehension, Detention, and Removal of Aliens,” June 17, 2011. Case: 14-50393, 02/07/2017, ID: 10304776, DktEntry: 43-2, Page 127 of 203 39. . Prosecutorial discretion, which can be exercised in the charging process, during the litigation, and/or to settle a case, is a tool that applies to ICE. It does not appear that there is any such guidance for CBP. 40. 8 U.S.C. § 1229a(b)(4)(A)-(B). 41. 8 U.S.C. § 1229a(b)(4)(C). 42. See Daniel Costa, Overloaded Immigration Courts, ECON. POL. INST., July 24, 2014, available at http://www.epi.org/ publication/immigration-court-caseload-skyrocketing/; Ana Campoy, 2014, available at http://online.wsj.com/news/articles/SB40001424 052702304070304580077491244309462. See also Eli Saslow, In a , WASH. POST, Feb. 2, 2014, available at http://www. washingtonpost.com/national/in-a-crowded-immigration-courtseven-minutes-to-decide-a-familys-future/2014/02/02/518c3e3e- 45. U.S. Congress, Committee on the Judiciary, U.S. Senate, “The Southern Border in Crisis: Resources and Strategies to Improve National Security,” S. Hrg. 109-1018 (June 7, 2005). 46. MPI report at 18. 47. through FOIA, on how agents determine whether to allow someone to withdraw a request for admission, to be referred to regular removal proceedings, or to place someone in a summary removal proceeding such as expedited removal. 48. Department of Homeland Security, FY 2013 ICE Removal Statistics, available at http://www.ice.gov/removal-statistics/. Setting, CNN (June 26, 2014), http://www.cnn.com/2014/06/26/ opinion/immigration-judge-broken-system/. 43. nytimes.com/2014/08/23/us/us-faces-suit-over-tactics-at-immigrantdetention-center.html; , Study Group on Immigrant Representation 4 (Dec. 2011) represented non-detained non-citizens received favorable outcomes, as opposed to 13 percent of unrepresented non-detained noncitizens). Kirk Semple, , N.Y. TIMES, Aug. 4, 2014, available at http://www.nytimes.com/2014/08/05/nyregion/ advocates-scramble-as-new-york-accelerates-child-deportationcases.html; Julia Preston, , N.Y. Times, Aug. 25, 2012, at A1, available at http:// www.nytimes.com/2012/08/26/us/more-young-illegal-immigrantsface-deportation.html?pagewanted=all (describing six-year-old child in removal proceedings without counsel); see also Julie Myers Wood & Wendy Young, , The Wall Street Journal, Sept. 22, 2013, available at http://online. wsj.com/news/articles/SB1000142412788732449260457908340034 49. Under the INA, a person who is “inadmissible” is ineligible for a visa or for admission to the United States based on health grounds, their criminal record, or, under some circumstances, a prior removal order. ez anch , 2017 a-S ry (b)(2)(ii). 51. eralt 8 C.F.R. § 235.32 v. P n Februa A 52. § 235(b); 8 C.F.R. § in US hived o INASecurity, “Designating235.3(b)(1)(ii); Department of Homeland Aliens for Expedited Removal,” ited rc C a 69 Fed. Reg. 48877-01, 48879 (Aug. 11, 2004) (“[T]his notice 393 -50 applies only to aliens encountered within 14 days of entry without o. 14 N inspection and within 100 air miles of any U.S. international land judge with no representation.”). See generally, HUMAN RIGHTS , DEPORTATION BY DEFAULT: MENTAL DISABILITY, UNFAIR HEARINGS, AND INDEFINITE DETENTION IN THE US IMMIGRATION SYSTEM (July 2010), available at immigrants with mental disabilities on the right to counsel, which resulted in a permanent injunction in California, Arizona, and Washington State in May 2013. 44. Jaya Ramji-Nogales, Andrew Schoenholtz, and Philip G. Schrag, , 60 STAN. L. REV 50. 8 U.S.C. § 1225(b)(1)(A)(i). border.”), available at http://www.gpo.gov/fdsys/granule/FR-200408-11/04-18469. 53. INA § 212(a)(9)(A)(i), 8 U.S.C. § 1182(a)(9)(A)(i). 54. INA § 212(a)(6)(C). 55. See INA § 235.3(b)(1)(A)(i) and (ii); 8 C.F.R. §§ 235.3(b)(4) and (b)(5). Unaccompanied minors may also not be issued an expedited removal order; instead, unaccompanied minors from Mexico and Canada may be brought to an immigration judge or, under certain circumstances, permitted to take voluntary return. All other unaccompanied minors are given a full immigration hearing. DHS issues an expedited removal order. See 8 C.F.R. §§ 235.3(b)(5). Trevizo, Ariz. Daily Star, Aug. 23, 2014, available at http://tucson.com/news/ local/border/who-gets-detained-released-sometimes-just-luck/ article_a42169bf-6399-51be-ae1d-3c0feed6ecf3.html. Julia Preston, , N.Y. Times, Aug. 22, 2014, available at http://www. 56. 8 C.F.R. § 235.3(b)(5)(i). 57. 8 U.S.C. § 1225(b)(1)(A)(ii). 58. , 608 F.3d 325 (7th Cir. 2010); , 539 F.3d 1133 (9th Cir. 2008); F.3d 443 (5th Cir. 2001). AMERICAN EXILE: Rapid Deportations That Bypass the Courtroom , 275 125 Case: 14-50393, 02/07/2017, ID: 10304776, DktEntry: 43-2, Page 128 of 203 59. In testimony in 2005, shortly after the expansion of expedited Border Patrol, explained to the Senate Committee on the Judiciary that expedited removal sped up the process: “That is why we are with expedited removal. . . . Under ER [] basically, the agent on the ground will make that determination as to whether that person has any claim to be in the United States or right to be in the United States. . . . .[O]nce that determination is made, these people are rapidly removed out of the country without an immigration judge coming into play.” U.S. Congress, Committee on the Judiciary, U.S. Senate, “The Southern Border in Crisis: Resources and Strategies to Improve National Security,” S. Hrg. 109-1018 (June 7, 2005). 60. 67 Fed. Reg. 68924-01 (Nov. 13, 2002) (“The Service believes that the expedited removal provisions, and exercising its authority to detain this class of aliens under 8 C.F.R. part 235, will assist in deterring surges in illegal migration by sea, including potential mass migration, and preventing loss of life.”). 61. , THE HUFF. POST, Oct. 28, 2013, available at: http:// misplays_b_4158840.html. 62. 63. 64. 65. 66. 68. After the dissolution of the INS in 2003, the newly created Department of Homeland Security (DHS) took over responsibility for numerous immigration enforcement and removal programs, including expedited removal. 69. Department of Justice, “Inspection and Expedited Removal of Aliens; Detention and Removal of Aliens; Conduct of Removal Proceedings; Asylum Procedures; Final Rule,” 62 Fed. Reg. 1031201 (March 6, 1997). 70. “DHS Announces Unprecedented Expansion of Expedited Removal to the Interior: Practice Advisory,” (Aug. 13, 2004) at 2, available at http://shusterman.com/pdf/ailf81304.pdf. 71. -, 25 I&N Dec. 520 (BIA 2011) that the DHS has discretion to put aliens in section 240 removal proceedings even though they may also be subject to expedited removal under section 235(b)(1)(A)(i) of the Act. Section 235(b) (2)(A) of the Act provides that ‘in the case of an alien who is an determines that an alien seeking admission is not clearly and beyond a doubt entitled to be admitted, the alien shall be detained for a see also, Shoba S. Wadia, 5 COLUM. J. RACE L. 1 (2014). ez anch , 2017 72. Wadia. at 5. . lta-S a eraMary Kenney, ry 2at 5. .P 73. , bru 8 U.S.C. § 1225(b)(1)(A)(ii). SA v d on Fe U d in ive74. Eric Schmitt, 8 U.S.C. § 1225(b)(1)(B)(iii)(III); 8Cite § 208.30(g).rch C.F.R. a . May 3, 1996. , N. Y. T 3 5039 judge 8 C.F.R. § 1208.30(g)(2)(iv)(A) (“If 4-immigration 75. “Domestic Violence Cases in the Asylum Process,” 1the No. Congressional Record Volume 146, Number 111 (Tuesday, 69 Fed. Reg. 48877-01 (Aug. 11, 2004). does not have a credible fear of persecution or torture, the case shall be returned to the Service for removal of the alien. The immigration IMES September 19, 2000) available at http://www.gpo.gov/fdsys/pkg/ CREC-2000-09-19/html/CREC-2000-09-19-pt1-PgS8752.htm. 76. 67. response to the large number of migrants from Cuba and Haiti who . 126 AMERICAN CIVIL LIBERTIES UNION 8 C.F.R. § 235.3(b)(4). 78. “summary exclusion,” which would eliminate the ability of arriving non-citizens to get a hearing and appeal a denial of relief even if they did not have proper immigration documentation. While summary exclusion was not adopted in the 1980s, it reemerged in 1995 as “expedited removal of arriving aliens” and became law as part of IIRIRA in 1996. See generally Philip G. Schrag, A WELL-FOUNDED FEAR: THE CONGRESSIONAL BATTLE TO SAVE POLITICAL ASYLUM IN AMERICA, (Routledge 2000); CONGRESSIONAL RESEARCH SERVICE, IMMIGRATION POLICY ON EXPEDITED REMOVAL OF ALIENS (Sept. 30, 2005), at 3, available at: http://trac.syr.edu/immigration/library/ P13.pdf.; UNITED STATES COMMISSION ON INTERNATIONAL RELIGIOUS FREEDOM, REPORT ON ASYLUM SEEKERS IN EXPEDITED REMOVAL, (Feb. 8, 2005) available at: http://www.uscirf.gov/index.php?option=com_ content&task=view&id=1892&Itemid=1. 77. 8 C.F.R. § 235.3(b)(4)(i)(C). In February 2014, citing The memorandum states that a claim should be referred to an asylum , (Feb. 28, 2014), available at http://www. aila.org/content/default.aspx?docid=48256. Advocates have raised concern that this standard, which is higher than the standard an asylum seeker must meet in court, unjustly diverts asylum seekers into expedited removal without the chance to seek protection. Plan leaves one with the clearly improper message that asylum Case: 14-50393, 02/07/2017, ID: 10304776, DktEntry: 43-2, Page 129 of 203 by the statutory framework and U.S. asylum law.” Memorandum, Haitian applicants for adjustment under the Haitian Refugee Torture Determinations,” April 21, 2014, available at http://static. squarespace.com/static/50b1609de4b054abacd5ab6c/t/53558353e4 HRIFA § 902(a)(2); 8 C.F.R. § 241.8(d); and some individuals applying for adjustment of status under INA § 245A (legalization) who are class members of certain lawsuits. 89. 79. Refugee Protection Act of 2001, S. 1311, 107th Cong. (2001), available at see generally, Philip G. Schrag, (Routledge 2000). 8 C.F.R. § 241.8(a). 90. See generally, Trina Realmuto, National Immigration Project American Immigration Center, (“Reinstatement Practice Advisory”) 9-10, (Aug. 2013), available at http://www.nationalimmigrationproject.org/ 80. , REPORT ON ASYLUM SEEKERS IN EXPEDITED REMOVAL, (Feb. 8, 2005) available at: http://www.uscirf.gov/index. php?option=com_content&task=view&id=1892&Itemid=1. 91. 81. 92. INA § 242(b)(1). Filing a petition for review, however, does not automatically stay the removal. Data obtained through a FOIA by The New York Times processed under ER have no criminal history, and less than 1 percent had been convicted of a violent crime. Over 60 percent of ERs with criminal history had illegal entry/reentry as their most serious offense. 82. 93. 8 C.F.R. § 241.8(b). INA § 242(b)(4)(A)&(B). 94. One study showed that ICE conducted more than 8,300 reinstatements in the Chicago area between FY 2007 and FY 2011. María Inés Zamudio, , THE CHICAGO REPORTER, May 1, 2013, available at http://www.chicagoreporter.com/speedyremoval#.VAi6VBatbTo. z nche a212(a)(9)(A). 2017 95. a-S§ INA , have any statutory basis. Bizarrely, the statute does not even permit eralt bruary 2 P 96. e , 23 I&N Dec. 866 (BIA 2006). the habeas court to consider whether the underlying legal regimev. is USA ed on F d in r573-574 97. 8 U.S.C. § 1326. iv C Boumediene v. Bush, 110 Cite. L. R . 537, ch 93 a (2010). 98. ,S U :T 03 14-5 R C (TRACfed), http://tracfed.syr. . 325, 329 (7th Cir. 2010). o N 83. , 608 F.3d edu/ (membership required); OLUM EV YRACUSE ECORDS NIVERSITY RANSACTIONAL LEARINGHOUSE 84. , 635 F.3d 563, 566 (1st Cir. 2011) (“The lack of procedural protections accompanying expedited SYRACUSE UNIVERSITY: TRANSACTIONAL RECORDS CLEARINGHOUSE (TRACfed), http://tracfed. syr.edu/ (membership required). 8 U.S.C. § 1229a, that is required to effectuate a formal removal.”). 99. 85. 100. INA § 241(b)(3)(A). See generally 64 Fed. Reg. 8478-01 (Feb. 19, 1999); Department of Homeland Security, U.S. Citizenship and Immigration Services, “Reinstatement of a Prior Order,” at 1 (p. INA § 241(a)(5), 8 U.S.C. § 1231(a)(5); 8 C.F.R. § 241.8. 86. Department of Homeland Security, FY 2013 ICE Removal Statistics. This is also the fastest rising category of deportations. In 2005, 43,137 people were deported through reinstatement. 87. , 727 F.3d 873, 878 (9th Cir. 2013) (“[ ] ICE agents, to whom § 1231(a)(5) delegates the decision to reinstate a prior removal order, may exercise their discretion not to pursue streamlined reinstatement procedures.”). 88. Some categories of individuals are statutorily exempt from reinstatement. These groups include Nicaraguans and Cuban applicants for adjustment under § 202 of the Nicaraguan Adjustment 114 Stat. 2763 (Dec. 21, 2000) amending NACARA § 202(a)(2); 8 C.F.R. § 241.8(d); Salvadoran, Guatemalan, and Eastern INA § 241(a)(5). Toolkit,” August 2014, available at https://law.psu.edu/sites/default/ 101. INA § 235(b)(1)(B)(v). 102. 8 C.F.R. § 208.30(e)(3). 103. 8 C.F.R. §§ 208.31(c); see generally, U.S. Department of Homeland Security, U.S. Citizenship and Immigration Services, “Questions & Answers: Reasonable Fear Screenings,” available at http://www.uscis.gov/humanitarian/refugees-asylum/asylum/ questions-answers-reasonable-fear-screenings. AMERICAN EXILE: Rapid Deportations That Bypass the Courtroom 127 Case: 14-50393, 02/07/2017, ID: 10304776, DktEntry: 43-2, Page 130 of 203 104. 114. USCIS Asylum Division, Individuals facing reinstatement of removal are also at 8 (Aug. 6, 2008), available at Against Women Act (VAWA), INA § 212(a)(9)(C)(iii), or through certain types of visas, such as a U visa (for victims of crime), INA § 101(a)(15)(U), INA § 212(d)(14) (waiver for crime Determinations-31aug10.pdf. 105. 106. at 11. , 480 U.S. 421, 440 (1987). 107. See Center for Gender & Refugee Studies, University of PRO SE MANUAL: ASYLUM, WITHHOLDING OF REMOVAL, AND CONVENTION AGAINST TORTURE PROTECTION FOR SURVIVORS OF DOMESTIC VIOLENCE, at 12, available at thorough list of ways a person might be eligible to adjust status, including through consular processing, see Reinstatement Practice Advisory, note 90. 115. Department of Homeland Security, FY 2013 ICE Removal Statistics, available at http://www.ice.gov/removal-statistics/. waiting in detention for a reasonable fear interview. 8 U.S.C. § 1229c(a)(1). 117. 108. 116. 8 C.F.R. § 240.25 (c). 118. 2006); (C.D. Cal. 1982). , 439 F.3d 614, 620 (9th Cir. , 541 F.Supp. 351, 374 n.27 119. 109. 509 F.3d 677 (5th Cir. 2007); ., 487 F.3d 855, 862 (11th Cir. 2007); 396 F.3d 999, 1002 (8th Cir. 2005); , 394 F.3d 780, 782 n.1 (9th Cir. 2005); ., 341 F.3d 533, 545 (6th Cir. 2003); ., 436 F.3d 89, 100–01 (2d Cir. 2006) (noting that denial of asylum in favor of withholding of removal would have the “practical effect” of separating the individual from his wife and children). 8 U.S.C. § 1229c(a)(2)(A). 120. 8 C.F.R. § 240.25(a), (c). 121. Cal. June 4, 2013). , No. 2:13-CV-03972-JAK, ¶ 5(C.D. ez anch , 2017 a-S 122. a8tU.S.C. § 1182(a)(9)(B)(i)(II). er l bruary 2 . P 8 Fe 123. SA v d on U.S.C. § 1182(a)(9)(B)(i)(I). in U hive 124. 8 U.S.C. § 1182(a)(9)(B)(v). Cited 93 arc 110. 8 C.F.R. §§ 208.31; 241.8(e). 3 -50 125. . 111. o. 14 N refer case to immigration judge); 1208.31(e) (same); 241.8(e) 126. 8 U.S.C. § 1182(a)(9)(C)(i). (same); 1241.8(e) (same); 8 C.F.R. §§ 208.2(c)(2) (immigration judge jurisdiction in referred cases); 1208.2(c)(2) (same). If the immigration judge decides the individual does not have a reasonable fear of persecution and/or is not eligible for relief under CAT, the non-citizen may appeal that determination to the Board of Immigration Appeals (BIA). 8 C.F.R. § 1208.31(e). If an asylum 127. 8 C.F.R. § 240.25(c). 128. (C.D. Cal. June 4, 2013). not have the right to appeal to the BIA. 8 C.F.R. §§ 208.31(g)(1); 1208.31(g)(1). 112. 113. , 531 F.3d 141, 150 (2d Cir. 2008). Interview with Narcisco G., Reynosa, Mexico, April 17, voluntary departure (“voluntary return”) but fail to depart the United States can be subject to civil penalties. 8 C.F.R. § 1240.26(j). Moreover, their voluntary return is converted into a formal removal order when the individual fails to depart the United States within the allotted time. 8 C.F.R. § 1240.26(a). 128 AMERICAN CIVIL LIBERTIES UNION . ¶ 44. 130. an immigration judge. 8 C.F.R. §§ 208.31(f), (g); 1208.31(f),(g). 129. , No. 2:13-CV-03972-JAK, ¶ 33-36 . 131. , (Aug. 27, 2014), available at https://www.aclusandiego.org/aclu-achieves-class-action-lawsuitsettlement-ends-deceitful-immigration-practices/; Gabriela Rivera “Victory! Immigration Authorities Must Stop Coercing Immigrants Into Signing Away Their Rights,” Aug. 27, 2014, available at https://www.aclu.org/blog/immigrants-rights/victory-immigrationauthorities-must-stop-coercing-immigrants-signing-away. 132. Interview with Veronica V., by telephone, April 23, 2014 (on Case: 14-50393, 02/07/2017, ID: 10304776, DktEntry: 43-2, Page 131 of 203 subsequently created the Department of Homeland Security and vested it with power to enforce immigration statutes. 133. , (Aug. 27, 2014), available at https://www.aclusandiego.org/aclu-achieves-class-action-lawsuitsettlement-ends-deceitful-immigration-practices/; Gabriela Rivera “Victory! Immigration Authorities Must Stop Coercing Immigrants Into Signing Away Their Rights,” Aug. 27, 2014, available at https://www.aclu.org/blog/immigrants-rights/victory-immigrationauthorities-must-stop-coercing-immigrants-signing-away. 134. Administrative removal applies to undocumented individuals individuals with permanent resident status on a 8 U.S.C. § 1228(b)(2)(B). 145. INA § 238(b) (“The Attorney General may . . . determine and issue an order of removal pursuant to the procedures set forth in this subsection or section 240.”) (emphasis added). See also raises a genuine issue of material fact regarding the preliminary notice to appear to initiate removal proceedings under section 240 of the Act.”) and 8 C.F.R. § 238.1(d)(2)(iii) (“If the deciding Service basis. 135. “Aggravated felonies” include crimes that, under state criminal laws, are not necessarily felonies and may not even include a term of imprisonment. The Immigration and Nationality Act (INA) ranging from tax evasion to rape, listed at 8 U.S.C. § 1101(a)(43), and what is considered an aggravated felony varies in accordance with state law. Moreover, federal courts can and do review and determine that the crime is not an aggravated felony under immigration law. These can be complicated legal determinations for lawyers and judges. expedited proceedings under section 238 of the Act and shall, where appropriate, cause to be issued a notice to appear for the purpose of initiating removal proceedings before an immigration judge under section 240 of the Act.”). 146. Federal courts have previously rejected challenges to 238b brought under the Equal Protection Clause of the U.S. Constitution, asserting that the statute has no rational basis for allowing some individuals to be charged and processed through a summary removal procedure with limited safeguards while referring others to full immigration court hearings. , 415 F.3d 375 (5th Cir. 2005) (holding that the Attorney ez anch , 2017454 F.3d 813, 818 (8th Cir. basis); -S , 136. A “crime involving moral turpitude” (CIMT) is a crime that, 2 lta 2006) , 512 F.3d 1104, for immigration purposes, is considered to be a depraved or immoral Pera (same); uary v. 1107 (9th Cir. 2008) (same); , 519 F.3d 546, ebr act, or even a “reprehensible act” carried out with recklessness. F USA ed on(6th Cir. 2008) (same). However, advocates suggest that a 552 n While the INA does not list all the crimes that can ibe considered v i challenge to the decision to place a person in the summary 238b CIMTs, some crimes that may be CIMTs include crimes arch Cited 93 involving proceedings instead of through immigration court raises fairness fraud or bodily harm to others. Persons with503 a conviction for a issues under CIMT can be deportable (under 8o. 14 USC § 1227(a)(2)(A)(i), (ii)) or N for relief when convicted of an aggravated felony “hangs on the inadmissible (under 8 USC § 1182(a)(2)(A), with some exceptions , 132 S. Ct. 476, 486 (2011). See Practice Advisory, Implications of for “youthful offenders” or “petty offenses”). 137. INA § 238(b), 8 U.S.C. § 1228(b). 138. 8 U.S.C. § 1228(b)(1). Individuals Challenging Arbitrary Agency Policies (Dec. 2011) at 11 available at http://nationalimmigrationproject.org/legalresources/ 139. 8 U.S.C. § 1228(b)(3). The actual period for appeal is governed by 8 U.S.C. § 1252(b)(1) and is 30 days, although under federal regulations the automatic stay on removal is only for 14 days. Based on the 238b form, this deadline may not be at all apparent to the individual facing removal and trying to collect supporting materials for appeal. 140. such a chance system, in which one longtime immigrant may have an opportunity to seek adjustment while another will not, based or follow the procedures under INA § 238(b).”); Jeffrey D. Stein, Judulang . 141. 8 U.S.C. § 1228(b)(4)(A)-(C). DHS is required to provide the individual with “a list of available free legal services programs” that can provide assistance. 8 C.F.R. § 238.1(b)(2)(iv). 142. 8 C.F.R. § 238.1(e). 144. Although the statute refers to the “Attorney General,” the 147. 8 U.S.C. § 1228(b)(4)(E),(F). 143. (forthcoming) (July 11, 2012) available at http://www.law.yale.edu/ documents/pdf/News_&_Events/Stein_Delineating_Discretion.pdf. 8 C.F.R. §§ 238.1(f)(3); 208.31. The rules that apply to reasonable fear determinations for individuals with a 238b administrative removal order are the same that apply to individuals with reinstated orders of removal. AMERICAN EXILE: Rapid Deportations That Bypass the Courtroom 129 Case: 14-50393, 02/07/2017, ID: 10304776, DktEntry: 43-2, Page 132 of 203 DEPORTATION WITHOUT DUE PROCESS, 148. A U visa will cancel any prior order of removal. 8 C.F.R. § 214.14(c)(5)(i) (“For a petitioner who is subject to an order of exclusion, deportation, or removal issued by the Secretary, the order will be deemed canceled by operation of law as of the date 164. 149. removal order.” María Inés Zamudio, , THE CHICAGO REPORTER, May 1, 2013, available at http://www.chicagoreporter. com/speedy-removal#.U5noey_D8iA. 8 C.F.R. §§ 238.1(b)(2)(i), 1238.1(b)(2)(i). 8 C.F.R. § 208.31. 150. See 8 C.F.R. §§ 238.1(c)(2)(i), 1238.1(c)(2)(i); see also INA § 101(a)(43); 8 U.S.C. §1101(a)(43). 151. 165. Assistance Foundation, “The majority of the people who signed 166. 8 U.S.C. § 1229a(b)(4)(C) and 8 C.F.R. § 1240.9 8 C.F.R. § 1238.1(h). 153. concurring). 154. DEPORTATION WITHOUT DUE PROCESS, at 12-13. 8 U.S.C. § 1228(c)(3)(A)(i). 167. 152. at 9. . at 2. There are no regulations on what information an ICE a stipulated order of removal, leading to further inconsistencies , 559 U.S. 356, 378 (2010) (J. Alito, Interview with Ricardo S., by telephone, March 10, 2014 155. Miguel Perez, , THE RECORD, July 10, 2002, available at http://lists.topica.com/lists/ImmigrantRightsAFSCNYMRO/read/ message.html?sort=t&mid=803694050; Daisy Cutter, , THE DAILY KOS, Aug. 16, 2008, available at http://www.dailykos.com/ story/2008/08/16/569034/-US-citizens-detained-and-or-deported-byimmigration-enforcement#. 168. 169. 170. 171. DEPORTATION WITHOUT DUE PROCESS, at 4. . at 5-6. at 9; see also DEPORTATION WITHOUT DUE PROCESS, at 12. ez 172. Koh, , at h anc479; American17 S 20 Immigration Council, Immigration Policy Center,2, alta- ruary Per , May 2014. 156. INA § 240(d); 8 U.S.C. §1229a(d). A v. on Feb S in U 173. ed MPI report at 26. 157. Inspection and Expedited Removal of Aliens, 62 Fed.Reg. hiv ited rc C a 10312-01, 10322 (Mar. 6, 1997). 174. See also, Daniel Gonzales, 393 4-50 R , Nov. 6, 2011, ,T A .1 158. 8 C.F.R. § 1003.25(b). No available at http://www.azcentral.com/arizonarepublic/news/article HE 159. 8 C.F.R. § 1003.25(b)(1)-(8). 160. RIZONA EPUBLIC s/2011/11/06/20111106immigration-arizona-deportation-program. html. A stipulated order cannot be appealed; however, a non-citizen grant these petitions. 161. 8 C.F.R. § 1003.25(b). 162. U.S. Immigration and Customs Enforcement, (April 2011), available 175. , 623 F.3d 672, 683 (9th Cir. 2010) (“Without any independent inquiry of the petitioner, and depending solely on information provided by DHS, the IJ concluded that Ramos process rights. As we have noted, shortcuts frequently turn out to be mistakes.”) (internal citations omitted). at prosecutors.pdf; see also, U.S. Department of Justice, Executive 176. María Inés Zamudio, , The Chicago Reporter (May 1, 2013), available at http://www.chicagoreporter.com/speedyremoval#.U5noey_D8iA. , (Sept. 15, 2010), available at http:// www.justice.gov/eoir/efoia/ocij/oppm10/10-01.pdf (“These orders 177. the Department of Homeland Security (DHS).”). 163. Tumlin, DEPORTATION WITHOUT DUE PROCESS (September 2011) at 12, available at http://www.stanford.edu/group/irc/Deportation_ Without_Due_Process_2011.pdf. 130 AMERICAN CIVIL LIBERTIES UNION , , 757 F.3d 885 (9th Cir. 2014) , denied her any opportunity to stay in the United States and urged her to take a stipulated order; 7th Circuit held that although the IJ did not Case: 14-50393, 02/07/2017, ID: 10304776, DktEntry: 43-2, Page 133 of 203 cannot be reopened). 178. U.S. Congress, Senate, Subcommittee on Immigration, Committee on the Judiciary, “The Detention and Treatment of Haitian Asylum seekers,” Statement of Senator Sam Brownback (Oct. 2, 2002), available at http://www.gpo.gov/fdsys/pkg/CHRG107shrg88613/html/CHRG-107shrg88613.htm. 179. U.S. Congress, House Judiciary Committee, “Asylum Goodlatte, “I am certainly not calling for reduced asylum protections. On the contrary, asylum should remain an important 2014, available at 3ea2-44a0-aa79-b9da1cb175e9/113-66-86648.pdf; , Testimony of Representative Trey Gowdy, “We know that there are survivors of inconceivable and heinous atrocities. We are outraged. We are sympathetic. And more than just sympathy, we are willing to open our country to provide those in need with a refuge, with a sanctuary with safety and dignity.” 180. Universal Declaration of Human Rights, G.A. res. 217A (III), U.N. Doc A/810 at 71 (1948), art. 14. 181. Convention relating to the Status of Refugees, 189 U.N.T.S. 150, April 22, 1954 (“the Refugee Convention”) (implemented in U.S. law through INA Section 208); Protocol Relating to the Status of Refugees, Jan. 31, 1967, 606 U.N.T.S. 267; 19 U.S.T. 6223; Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (Convention Against Torture), adopted December 10, 1984, G.A. res. 39/46, annex, 39 U.N. GAOR Supp. (No. 51) at 197, U.N. Doc. A/39/51 on October 21, 1994. Determinations, February 28, 2014, available at http://www.aila. org/content/default.aspx?docid=48256. Advocates raised concern both that this standard is much higher than what an asylum seeker must actually show to qualify for asylum under the law, and also that the new instructions were issued in a surreptitious manner. See, available at http://www.lexisnexis. com/legalnewsroom/immigration/b/insidenews/archive/2014/05/05/ credible-fear-lesson-plan-39-undermines-the-asylum-process-39Committee Chair, “ is Enough!” (April 25, 2014), available at http://ailaleadershipblog. org/2014/04/25/the-revised-credible-fear-lesson-plan-enough-isenough/. 188. Interview with Kaveena Singh, Berkeley, California, 189. UNHCR, CONFIDENTIAL REPORT, FINDINGS AND RECOMMENDATIONS RELATING TO THE 2012-2013 MISSIONS TO MONITOR THE PROTECTION SCREENINGS OF MEXICAN UNACCOMPANIED CHILDREN ALONG THE U.S.-MEXICO BORDER (“UNHCR CONFIDENTIAL REPORT”), ez anch , 2017 a-S eralt bruary 2 .P SA v d on Fe in U hive ited 190. Interview with Manaf S., Oakland, California, March 3, 2014 C arc 393 -50 o. 14 N 191. 182. Article 31(1) of the 1951 Refugee Convention states, “The Contracting States shall not impose penalties, on account of their illegal entry or presence, on refugees who, coming directly from a territory where their life or freedom was threatened in the sense of Article 1, enter or are present in their territory without authorization, provided they present themselves without delay to the authorities and show good cause for their illegal entry or presence.” The Refugee Convention, art. 31(1). These protections apply also to individuals seeking 183. spoke directly and who had a (prior or current) removal order when 184. 8 U.S.C. § 1225(b)(1)(A)(ii). 185. 8 C.F.R. § 235.3(b)(2). 186. See appendices to this report, available at www.aclu.org; see also 8 C.F.R. § 235.3(b)(2)(i) (requiring that this script be read to the non-citizen). In February 2014, USCIS quietly but deleteriously 192. 193. . Interview with Ana N. R., T. Don Hutto Residential Center, in detention with an expedited removal order at the time of this credible. 194. 195. 196. on interviews with relatives. 187. that asylum applicants must now “demonstrate a substantial and realistic possibility of succeeding” in their cases to be permitted an opportunity to apply for asylum before an immigration judge. 197. AMERICANS FOR IMMIGRANT JUSTICE, THE “HIELERAS”: A REPORT ON HUMAN & CIVIL RIGHTS ABUSES COMMITTED BY U.S. CUSTOMS AND BORDER PROTECTION AGENCY (2013), available at http://www.aijustice.org/the_hieleras_a_report_on_human_civil_ rights_abuses_committed_by_u_s_customs_and_border_protection_ agency; see also Arizona, In the Shadow of the Wall: Family Separation, Immigration AMERICAN EXILE: Rapid Deportations That Bypass the Courtroom 131 Case: 14-50393, 02/07/2017, ID: 10304776, DktEntry: 43-2, Page 134 of 203 Enforcement and Security Preliminary Data from the Migrant Border Crossing Study (2013), available at: http://las.arizona.edu/sites/ NO MORE DEATHS, A CULTURE OF CRUELTY: ABUSE AND IMPUNITY IN SHORT-TERM U.S. BORDER PATROL CUSTODY (2011), available at http:// www.nomoredeaths.org/Abuse-Report-Culture-of-Cruelty/Viewcategory.html; Rachel Bale, Center for Investigative Reporting, , UNION-TRIBUNE SAN DIEGO, Nov. 20, 2013, available at http://www.utsandiego.com/news/2013/ nov/20/cir-border-detainees-freezers/. 198. to government); , 458 F.3d 1052 (9th Cir. 2006) (holding that reporting not required if applicant can convincingly establish that doing so would have been futile or have subjected him or her to further abuse). 205. Interview with Nydia R., San Francisco, California, February 206. Testimony of Agent Araceli Barba de la Cruz (July 24, 2013) at . Interview with Ponchita, Nogales, Sonora, Mexico, March 207. . at 21:9-15. 208. 199. . at 26:15-25. with migrants in Mexico said, “When we have talked to migrants 209. well but when I explain to them what the conditions should be like, about due process, the number goes down to 20-30 percent. … So abuses are not seen [as abuses] all the time because they felt like this is how they are supposed to be treated.” Interview at Casa de Recursos des Migrantes, Agua Prieta, Mexico, February 28, 2014 200. Interview with Nydia R., San Francisco, California, February Interview with Telma M., Broward Transitional Center, 210. , , 26 I&N Dec. 388 (BIA 2014) (recognizing that women who have experienced domestic violence may be considered a “member of a particular social group” for purposes of an asylum claim). 211. Interview with Juan Manuel C., Matamoros, Mexico, April ez anch , 2017 a-S eralt bruary 2 202. Interview with Felipe R., Reynosa, Mexico, April 17, 2014 v. P 213. . e USA ed on F in v Cited 93 archi 214. 203. UNHCR, C R , note 189, at 29. 503 204. Indeed, the United States recognizes 4- non-governmental .is1 that or unable to 215. Interview with Ericka E. F., T. Don Hutto Residential Center, No actors or entities whom the government unwilling 201. 212. ONFIDENTIAL Interview with Bessy M., T. Don Hutto Residential Center, 216. Interview with Braulia A., San Diego, California, March 25, EPORT control (including gangs or even families, in cases of domestic violence) can be persecutors for asylum purposes. See USCIS, of Persecution; Eligibility Based on Past Persecution,” (2009), available at 31aug10.pdf, : , 20 I&N Dec. 142, 147 (BIA 1990) (recognizing persecution from paramilitary death squads); 21 I&N Dec. 337 (BIA 1996) (recognizing persecution from members of opposition political party and clan); , 21 I.&N. Dec. 357 (BIA 1996) (en banc) (recognizing persecution from family members); , 378 F.3d 940, 943 (9th Cir. 2004) (IJ erred in discounting persecution suffered by applicants at the hands of their family members when the applicants had established that the government was unable or unwilling to control their persecutors); 217. HUMAN RIGHTS FIRST, HOW TO PROTECT REFUGEES AND PREVENT ABUSE AT THE BORDER: BLUEPRINT FOR U.S. GOVERNMENT POLICY, at 12 (June 2014), available at 218. Interview with Wendy, Miami, Florida, April 11, 2014 (on 219. Interview with Rosa F. H., Hutto, Texas, April 22, 2014 (on 220. 221. where an IJ concluded that to qualify for asylum the applicant had to demonstrate government persecution); -, 22 I&N 222. conditions indicated that it would be unproductive and possibly 224. 132 AMERICAN CIVIL LIBERTIES UNION 223. . Interview with Maria, Marian, and Rosemarie, Miami, Case: 14-50393, 02/07/2017, ID: 10304776, DktEntry: 43-2, Page 135 of 203 225. Interview with Jacqueline Bradley Chacon, by telephone, 226. 227. 232. 233. , No. 4:14-CV-01775-KAW (N.D. 8 C.F.R. § 208.31(b). 234. . 228. being targeted they were deportees from the United States, and it is not uncommon for deportees from the United States to be kidnapped or murdered after their deportation and repatriation. See Elizabeth Kennedy, , NO CHILDHOOD HERE: WHY CENTRAL AMERICAN CHILDREN ARE FLEEING THEIR HOMES, at 5 (July 2014) available at http://www. 235. , No. 4:14-CV-01775-KAW (N.D. Interview with Alejandro, by telephone, May 28, 2014 (on 236. . 237. . 238. CBS NEWS, “For child immigrants, dangers of staying are most grave,” July 17, 2014, available at http://www.cbsnews.com/news/ child-immigrants-face-grave-dangers-by-staying-in-central-america/; 2014, available at tragedia-de-todo-un-pais; deportado de EUA en Tejutla,” May 24, 2014, available at http:// capital a deportado de EUA,” December 14, 2013, available at 509 F.3d 677 (5th Cir. 2007); ., 487 F.3d 855, 862 (11th Cir. 2007); 396 F.3d 999, 1002 (8th Cir. 2005); , 394 F.3d 780, 782 n.1 (9th Cir. 2005); ., 341 F.3d 533, 545 (6th Cir. 2003); ., 436 F.3d 89, 100–01 (2d Cir. 2006) (noting that denial of asylum in favor of withholding of removal would have the “practical effect” of separating the individual from his wife and children); see generally U.S. DEPARTMENT OF JUSTICE, EXECUTIVE OFFICE OF IMMIGRATION REVIEW, FACTSHEET: ASYLUM AND WITHHOLDING OF REMOVAL RELIEF CONVENTION AGAINST TORTURE PROTECTIONS, (2009), available at http://www.justice.gov/eoir/press/09/ AsylumWithholdingCATProtections.pdf. ez anch , 2017 a-S 240. ary challenged the limitation (in reinstatement eralt Advocates have 2 v. P proceedings)ron who can receive asylum as inconsistent with eb u F A Martín,” January 11, 2013, available at the in US hived onasylum statute, which provides that “any” immigrant, regardless of his or her immigration status, is eligible to apply for Cited 93 arc asylum. INA § 208(a), 8 U.S.C. § 1158(a). See 3 50 2012, available at , No. 12-72800, (9th Cir. Feb. 4, 2014). The Supreme . 14judicial/262121-asesinan-a-dos-hombres-deportados-de-eua.html; El No Court has also indicated that asylum remains available to individuals fue deportado de EUA,” March 19, 2013, available at http://www. 8 C.F.R. § 208.16(f). subject to reinstatement. 548 U.S. 30, 35 n.4 (2006); 12, 2013, available at http://www.elsalvador.com/mwedh/nota/ nota_completa.asp?idCat=47859&idArt=8399962. 229. 239. Interview with immigration attorney, via email, June 22, 2014 acknowledgement of the availability of asylum , , ). 241. 230. Interview with Ana D., Broward Transitional Center, Florida, 242. 231. . 243. UNITED STATES COMMISSION ON INTERNATIONAL RELIGIOUS FREEDOM, EXPEDITED REMOVAL STUDY: TWO YEARS LATER (2007), available at: http://www.uscirf.gov/images/stories/pdf/scorecard_ USCIS Asylum Division, at 8 (Aug. 6, 2008), available at 244. Determinations-31aug10.pdf. Moreover, while the U.S. Supreme support a grant of asylum, NS v. Cardozo-Fonseca, 480 U.S. 421, 430 (1987), courts have required immigrants seeking withholding to demonstrate at least a 51 percent likelihood of suffering future persecution. See Immigration Equality, , (2006), available at https://immigrationequality.org/issues/ law-library/lgbth-asylum-manual/withholding-of-removal/ 245. . 246. , EXPEDITED REMOVAL STUDY: TWO YEARS LATER (2007), available at: http://www.uscirf.gov/images/stories/ 247. at 4. AMERICAN EXILE: Rapid Deportations That Bypass the Courtroom 133 Case: 14-50393, 02/07/2017, ID: 10304776, DktEntry: 43-2, Page 136 of 203 248. at 7-8. 249. HUMAN RIGHTS FIRST, HOW TO PROTECT REFUGEES AND PREVENT ABUSE AT THE BORDER: BLUEPRINT FOR U.S. GOVERNMENT POLICY, (June 2014), available at AMERICAN IMMIGRATION COUNCIL, MEXICAN AND CENTRAL AMERICAN ASYLUM AND CREDIBLE FEAR CLAIMS: BACKGROUND AND CONTEXT, (May 2014), available at 250. U.S. House of Representatives, , 113th Cong. (2013) available at d824-448e-8259-cce4edc03856/113-56-85905.pdf. U.S. House of Representatives, , 256. Jude Joffe-Block, , FRONTERAS (March 12, 2014) available at http://www.fronterasdesk.org/content/9552/facing-riskrape-migrant-women-prepare-birth-control; Jenny Johnson, , LATIN AMERICA WORKING GROUP EDUCATION FUND, (October 2013), available at 13_Migrant_Report-v5.pdf; JESUIT REFUGEE SERVICE/USA, PERSISTENT INSECURITY: ABUSES AGAINST CENTRAL AMERICANS IN MEXICO (October 2013), available at https://www.jrsusa.org/assets/Publications/File/ Persistent_Insecurity.pdf; Sarah Stillman, , THE NEW YORKER, April 5, 2013, available at http:// www.newyorker.com/online/blogs/comment/2013/04/migrants-and- U.S. House of Representatives, , 113th Cong. (2014) available at http://judiciary.house.gov/_cache/ 251. included any individuals who at some point passed through ICE and were considered removals. It is possible this data is an underestimate depending how the data provided was coded by DHS before it was provided to The New York Times. ; HUMAN RIGHTS FIRST, HOW TO PROTECT REFUGEES AND PREVENT ABUSE BORDER . AT THE 252. HUMAN RIGHTS FIRST, at Appendix B: Security Checks (detailing the numerous databases to which CBP and ICE have , FRONTERAS, Aug. 27, 2013, available at http:// www.fronterasdesk.org/content/8932/riding-la-bestia-immigrationtrain; Karl Penhaul, CNN, “Scarred but alive after riding the train of death,” July 30, 2010, available at http://www.cnn.com/2010/ 257. U.S. Congress, Committee on the Judiciary, U.S. Senate, “The Southern Border in Crisis: Resources and Strategies to Improve National Security,” S. Hrg. 109-1018 (June 7, 2005); Vice President Joseph Biden, Remarks to the Press and Question and Answer at the Residence of the U.S. Ambassador, Guatemala City, Guatemala (June 20, 2014) (“none of these children or women bringing children will be eligible under the existing law in the United States.”), available at remarks-press-qa-vice-president-joe-biden-guatemala; Interview with Secretary of Homeland Security Jeh Johnson, NBC NEWS, MEET THE PRESS, July 6, 2014 (video) (“The goal of the Administration is to stem the tide and send the message unequivocally that if you come ez anch , 2017 border, and which become even more extensive should the individual a-S be detained and/or referred into immigration court.). eralt bruary 2 P A v. on Fe 253. . at 28. In its written testimony for the December US 2013 d in House Judiciary Hearing, “Asylum Abuse: Is IttOverwhelming chive i ed r C 3a 5039 security credible fear interviews “are extensively trained in national 14issues, the security and law enforcement background check process, No. eligibility criteria, country conditions, interview techniques, making proper credibility determinations, and fraud detection.” U.S. Congress, Written Testimony before the House Committee on the Judiciary, “Asylum Abuse: Is It Overwhelming Our Borders?” Combined DHS Written Testimony, Dec. 12, 2013, p. 7, available at c681c6499251/combined-dhs-testimony.pdf. 254. 8 U.S.C. § 1158(d)(6). 255. to Panama (July 1, 2014) (stating incorrectly that people who are not available at http://m.state.gov.md228646.htm. 258. Interview with Jaime Díez, Brownsville, Texas, April 18, See Chief Michael Fisher for a House Committee on the Judiciary hearing titled “Asylum Abuse: Is it Overwhelming our Borders?” (Dec. 12, 2013), available at http://www.dhs.gov/news/2013/12/12/ written-testimony-uscis-ice-and-cbp-house-committee-judiciary- 259. 1803, 1821 (2013). 260. 261. number—approximately 5 percent—of individuals who were issued expedited removal orders were referred for credible fear interviews. FY 2013 ICE data, procured by The New York Times Rethinking Removability, 65 FLA. L. REV. Rachel E. Rosenbloom, , 54 B.C.L. REV. 1965, 1967 (2013). Rethinking Removability, at. 1822, citing , U.S. CENSUS BUREAU, http:// xhtml?pid=ACS_10_1YR_B05001&prodType=table. 134 AMERICAN CIVIL LIBERTIES UNION Case: 14-50393, 02/07/2017, ID: 10304776, DktEntry: 43-2, Page 137 of 203 262. 263. 281. See 8 U.S.C. § 1433(a). Rethinking Removability, at 1822. 264. Rosenbloom 265. Interview with Gabriela Rivera, by email, June 3, 2014 (on , at 1972. 282. recognition of her citizenship from the Department of State only 266. 2014). , No. 3:14-CV-01434 (S.D. Cal. June 12, 267. Interview with Gabriela Rivera, by email, June 3, 2014 (on 268. Interview with Peter V., Tijuana, Mexico, March 26, 2014 behalf of immigrants with mental disabilities on the right to counsel, which resulted in a permanent injunction in California, Arizona, and Washington State in May 2013. 269. 270. 271. 283. HUMAN RIGHTS WATCH/AMERICAN CIVIL LIBERTIES UNION, DEPORTATION BY DEFAULT: MENTAL DISABILITY, UNFAIR HEARINGS, AND INDEFINITE DETENTION IN THE US IMMIGRATION SYSTEM (July 2010), available at http://www.hrw.org/reports/2010/07/26/deportation- Interview with Peter V., Tijuana, Mexico, March 26, 2014 284. 285. . at 31. For example, 8 C.F.R. § 1240.10(c) discusses a non- 272. 273. , No. 1:14-CV-016, First Amended Petition for Writ of Habeas Corpus (S.D. Texas February he or she is deportable if there is no lawyer or other representative appearing with the individual. The IJ must “direct a hearing on ez anch , 2017 a-S ry . at 3. eralt KarenrMusalo, E2 R ,H R , v. P 286. Feb ua . at 6. USA ed on B A , 2001, http://www.abanet.org/irr/hr/ A in v winter01/musalo.html. Cited 9 10, 2014hi Interview with Jaime Díez, by telephone, June3 arc (on 287. 503 . 14o California, N admission that he or she is deportable, or that he or she is a noncitizen (an “alien” under U.S. immigration law). 274. XPEDITED 275. 276. MERICAN 277. , No. 1:09-CV-00208 (S.D. Tex. 2009). See also, Jazmine Ulloa, , THE TEXAS OBSERVER (May 13, 2010), available at http://www.texasobserver.org/born-tobe-barred/. 278. The requirement to have a U.S. passport when crossing a land border is relatively recent (introduced in 2009) and has affected travel and life along the Mexico and Texas border in particular. The Western Hemisphere Travel Initiative (“WHTI”), which went into effect in June 2009, requires that U.S. citizens have a passport to enter the United States at a land border crossing. Intelligence AR EMOVAL UMAN IGHTS SSOCIATION , (Aug. 7, 2007) available at http://www.aclu-sc.org/releases/view/102548 (accessed June 25, after 89-day ordeal,” August 8, 2007. 288. (E.D.N.C. Oct. 13, 2010). 289. , No. 4:10-cv-142 . 290. Brownsville, Texas, Department of State Health Services, Vital § 7209, 118 Stat. 3638, 3823-24, § 546, 120 Stat. 1355, 1386-87 (2006), 291. Notice of Intent to Issue a Final Administrative Removal 8 U.S.C. §1185 (2012)); see 22 C.F.R. § 53.1 (2013). However, at the time, CBP had a policy of permitting applicants for admission 292. U.S. Department of Homeland Security, Immigration and instead of a passport.” 279. 280. complaint at 13. 293. , 1:09-CV-00208 (2009). Jazmine Ulloa, , . 294. 8 C.F.R. § 235.3(b)(5). AMERICAN EXILE: Rapid Deportations That Bypass the Courtroom 135 Case: 14-50393, 02/07/2017, ID: 10304776, DktEntry: 43-2, Page 138 of 203 313. 295. Special Agents in Charge, and Chief Counsels (Nov. 19, 2009), available at www.ice.gov/doclib/detention-reform/pdf/usc_ guidance_nov_2009.pdf (providing the most recent guidance in a series of memoranda, and stating that “[a]s a matter of law, ICE cannot assert its civil immigration enforcement authority to arrest and/or detain a [U.S. citizen]”). 296. 8 C.F.R. § 1235.3(b)(5)(iv) (providing for a claimed status review hearing, at which an Immigration Judge reviews an expedited . 314. . 315. Megan K. Stack, , ASSOCIATED PRESS, June 10, 2000, available at http://amarillo.com/ 316. (5th Cir. 2003); Megan K. Stack, 317. refugee, asylee, or United States citizen). 297. 298. . Interview with Timothy D., by telephone, May 31, 2014 (on lives in Canada, is a U.S. citizen and that he has two approved I-130 applications. 299. Interview with Nydia R., San Francisco, California, February 300. , No. 03-40420 . 8 U.S.C. § 1101(a)(13)(C). 318. . §§(a)(13(C)(i)-(ii). These are not the only ways a person can be seen as abandoning their status and is no longer entitled a hearing. The statute states: “(C) An alien lawfully admitted for permanent residence in the United States shall not be regarded as seeking an admission into the United States for purposes of the immigration laws unless the alien--(i) has abandoned or relinquished that status, (ii) has been absent from the United States for a continuous period in excess of 180 days, (iii) has engaged in illegal activity after having departed the United States, (iv) has departed from the United States while under legal process seeking removal of the alien from the United States, including removal proceedings under this chapter and extradition proceedings, (v) has committed an 304. ez anch granted 017 section 1182(h) or offense the alien has been U.S. Department of Homeland Security, Record of , 2relief under a-S 1229b(a) of this title, or y is attempting to enter at a time or place eralt bruar (vi)2 .P Fe SA v d on to the United States after inspection and authorization by an U d in rch veadmitted Interview with Nydia R., San Francisco, e CitCalifornia, February i 3a 5039 319. 14No. 305. Interview with Nydia R., San Francisco, California, February 306. Interview with Francisco by email, May 20 and 21, 2014 (on 301. 302. 303. . 320. 321. , 608 F.3d 325, 329 (7th Cir. 2010). 322. , 741 F.3d 1016, 1021 n.4 (9th Cir. 2014) (“We do not evaluate the merits of the 307. 308. 309. . 310. 311. There is a statutory cap on the number of U visas that can be issued each year; thus, many people who are approved for a U visa cannot get the visa immediately and must wait until the following 8 U.S.C. § 1252(e)(5) (barring judicial review of “whether the alien is actually inadmissible or entitled to any relief from removal”), nor do we inquire as to whether, had Smith made an honest request to enter for business purposes, as a temporary visitor or otherwise, he might have been granted a visa to do so.”). 323. . at 1022 n.6 (“we need not reach the question whether and under what circumstances a petitioner who establishes none of the permissible bases under § 1252(e)(2) might still have claims under the Suspension Clause.”). receiving a U visa, an individual receives deferred action and should not be removed. 324. 312. 325. Interview with Guadeloupe, by telephone, May 28, 2014 (on 136 AMERICAN CIVIL LIBERTIES UNION Case: 14-50393, 02/07/2017, ID: 10304776, DktEntry: 43-2, Page 139 of 203 326. Interview with Marisol Pérez, San Antonio, Texas, April 23, to place such a person in expedited removal.”), available at https:// shusterman.com/pdf/ailf81304.pdf. 327. 343. 328. 329. determine whether an individual might be eligible for cancellation, Interview with Antonio, by telephone, March 15, 2014 (on Interview with Wendy D.G., Miami, Florida, April 9, 2014 344. 345. 330. a person was issued an expedited removal order, and the grounds upon which a person found to be misrepresenting themselves; this FOIA information was not provided and its provision is currently being litigated. 331. . 346. . 347. Interview with Inocencia C., Orange, California, March 22, 348. Interview with Roland J., by telephone, March 12, 2014 (on 349. Interview with Claudia D., by telephone, April 12, 2014 (on 350. Interview with Braulia A., San Diego, California, March 25, 351. U.S. Department of Homeland Security, Expedited Removal 332. 333. 334. 335. Canada and Mexico. ez anch , 2017 a-S eralt . bruary 2 . P 353. SA v d on Fe 337. in U hive 354. ited involvement and were later deemed credible evidence by a U.S. C 338. arc 393 -50 339. See generally, Congressional Research Service, Immigration o. 14 3 (September 30, 2005), 355. Interview with Braulia A., San Diego, California, March 25, Policy on Expedited Removal NAliens, at of 336. 352. Interview with Braulia A., San Diego, California, March 25, Interview with Timothy D., by telephone, May 13, 2014 (on available at http://fpc.state.gov/documents/organization/54512.pdf. 340. , 142 U.S. 651, 660 (1892). 341. , , 345 U.S. 206, 212 (1953) (non-citizens yet to be admitted are not entitled to the same panoply of rights as non-citizens who have entered the United States, even unlawfully) , 533 U.S. 678, 693 (2001) (“once an alien enters the country, the legal circumstance changes, for the Due Process Clause applies to presence here is lawful, unlawful, temporary, or permanent”). 356. 357. ACLU OF NEW MEXICO, TORN APART: HOW U.S. IMMIGRATION POLICY FRAGMENTS NEW MEXICAN FAMILIES, (2014), available at http://www.aclu-nm.org/wp-content/uploads/2013/04/ tornapart_030113_05_web05.pdf ; see also border,” MSNBC, July 22, 2014, available at http://www.msnbc. com/msnbc/many-deported-recent-border-crossers-arent-recent-ornear-the-border. 342. 358. TORN APART, note 357, at 10-11. , August 13, 2004 at 6 (noting that “It is possible that individuals who have resided in the United States for ten years or longer will be placed in interior expedited removal. Although short absences from the U.S. will not break the 359. As earlier explained, there are two forms of voluntary departure: (a) voluntary departure that is granted by an immigration judge at either the outset or conclusion of formal removal hearings; and (b) voluntary return that is administered and issued by an will treat any absence from the country as breaking the fourteenday presence requirement for internal expedited removal. … There return. 360. “Voluntary departure may not be granted unless the alien AMERICAN EXILE: Rapid Deportations That Bypass the Courtroom 137 Case: 14-50393, 02/07/2017, ID: 10304776, DktEntry: 43-2, Page 140 of 203 such voluntary departure to its terms and conditions.” (emphasis added). 8 C.F.R. § 240.25 (c). 361. (C.D. Cal. 2013). , 13-cv-03972-JAK 362. 8 U.S.C. § 1182(a)(9)(B)(i)(II). 363. 8 U.S.C. § 1182(a)(9)(B)(i)(I). 364. Interview with Veronica V., by telephone, April 23, 2014 (on 365. . 366. . 367. Interview with Emmanuel M., by telephone, June 13, 2014 368. 378. In March 2010, in , the U.S. Supreme Court held that failure to inform a criminal defendant of the immigration consequences of a criminal conviction before entering into a plea agreement constituted ineffective assistance of counsel and could be the basis of a claim under the Sixth Amendment to the U.S. Constitution. Such a claim allows an individual to vacate the criminal conviction that led, as a collateral consequence, to his or her deportation. However, in 2013, the Supreme Court held that this decision did not apply retroactively to criminal convictions entered before March 2010. , 133 S.Ct. 1103 (2013). 379. For many years, the Department of Homeland Security argued that crimes involving drug possession were aggravated . 369. days or more in prison (which can include a suspended sentence). Thus, for Ricardo, whether or not “conspiracy to commit burglary” was a crime that fell within the aggravated felony category at that time, the reduction of his sentence to 364 days meant that his conviction could never be an aggravated felony. . 370. B-13-108 (S.D. Tex. 2013). 371. ., No. Interview with Marisol Pérez, San Antonio, Texas, April 23, recent years, the U.S. Supreme Court has since determined that many low-level drug crimes that have been prosecuted as aggravated example, in , 127 S.Ct. 625 (2006), the Supreme Court held that simple possession offenses (misdemeanors under federal law) are not aggravated felonies. And in , 133 S.Ct. 1678 (2013), the Supreme Court held that “social sharing of a small amount of marijuana” (sometimes prosecuted as “possession with intent to sell”) is not an aggravated felony. In its decision, the Court further observed, “This is the third time in seven years that we have considered whether the Government has properly ez anch , 2017 a-S eralt bruary 2 373. “Aggravated felonies” include crimes that, under state .P SA v d on Fe criminal laws, are not necessarily felonies and may not even include nU a term of imprisonment. The Immigration andiNationality Act (INA)ive ted i arch C 393 ranging from tax evasion to rape, listed at 8 4-50 1101(a)(43), U.S.C. § 1 and what is considered an aggravatedo. N felony varies in accordance . at 1693. See generally, I 372. Cal. June 4, 2013). with state law. Some aggravated felonies do require that the individual was sentenced for a period of 365 days or more for the crime to constitute an aggravated felony—for example, burglary, a crime of theft, or a crime of violence. Even if the person never actually served any time in prison for the offense—for example, if the person receives a “suspended sentence” from a criminal court but is not required to serve all or any part of that sentence in prison—his or her crime can be considered an aggravated felony. 374. See turpitude.”). 375. Interview with Ricardo S., by telephone, March 10, 2014 MMIGRANT DEFENSE PROJECT, “Drug Aggravated Felonies,” available at http:// immigrantdefenseproject.org/litigation/drug-aggravated-felonies. 380. , No.4:10-cr-0397, Memorandum and Order (S.D. Tex. Nov. 16, 2010). 381. Statement of Secretary Jeh C. Johnson, U.S. Department of Homeland Security Before House Committee on Homeland Security, June 24, 2014, available at http://docs.house.gov/ meetings/HM/HM00/20140624/102395/HHRG-113-HM00-WstateJohnsonJ-20140624.pdf. UNITED NATIONS HIGH COMMISSION FOR REFUGEES, CHILDREN RUN: UNACCOMPANIED CHILDREN LEAVING CENTRAL AMERICA AND MEXICO AND THE NEED FOR INTERNATIONAL PROTECTION (“UNHCR Report”) 39 (May 2014), available at http://www.unhcrwashington. 382. ON THE federal public defender in Arizona and the immigration attorney prosecution for illegal reentry under 8 U.S.C. § 1326. All interviews 376. Interview with Ricardo S., by telephone, March 10, 2014 (on 377. A crime of theft or burglary is a crime that is considered to be an aggravated felony only when the individual is sentenced to 365 138 AMERICAN CIVIL LIBERTIES UNION children who experienced dangerous and traumatic journeys to the United States: “The conditions in Central America have deteriorated to such a point that, when the WRC asked the children if they would Case: 14-50393, 02/07/2017, ID: 10304776, DktEntry: 43-2, Page 141 of 203 risk the dangerous journey north through Mexico all over again now that they had direct knowledge of its risks, most replied that they would. They said that staying in their country would guarantee death, and that making the dangerous journey would at least give them a chance to survive. Many of them expressed a longing for their homelands, stating that they would not have left but for fear for their lives.” WOMEN’S REFUGEE COMMISSION, FORCED FROM HOME: THE LOST BOYS AND GIRLS OF CENTRAL AMERICA, 7 (Oct. 2012). 8 U.S.C. §§ 1232(a)(2)(B), (a)(5)(D). That said, children are not 383. U.S. Department of Homeland Security, Statement by Secretary of Homeland Security Jeh Johnson Before the Senate Committee on Appropriations, July 10, 2014, available at http:// www.dhs.gov/news/2014/07/10/statement-secretary-homelandsecurity-jeh-johnson-senate-committee-appropriations. 393. 384. Memorandum for the Heads of Executive Departments and Agencies, see also Dianne Solís and Alfredo Corchado, , DALLAS MORNING NEWS, June 7, 2014, http://www.dallasnews.com/news/headlines/20140607immigrant-children-seeking-sanctuary-face-bleak-future.ece; see generally, CONGRESSIONAL RESEARCH SERVICE, UNACCOMPANIED ALIEN CHILDREN: AN OVERVIEW, June 23, 2014, available at http://fas.org/ sgp/crs/homesec/R43599.pdf. 385. 8 U.S.C. § 1232(a)(5)(D) (“Any unaccompanied alien child sought to be removed by the Department of Homeland Security, except for an unaccompanied alien child from a contiguous country . . . shall be placed in removal proceedings under section 240 of the Immigration and Nationality Act.”). two children, ages two and 14, who traveled with their mother; all three were issued expedited removal orders in Texas. Recent data on ICE apprehensions, procured and calculated from The New York Times FOIA data on removals, shows that 83 children were issued expedited removal orders (and 74 received reinstated orders of . 394. Special Immigrant Juvenile Status is available to noncitizen children who have been abused, neglected, or abandoned or another similar basis under state law by one parent or both; these children, if approved, can later become lawful permanent residents and work lawfully in the United States. See INA § 101(a); 8 U.S.C. § 1101(a)(27)(J). 395. See 5044 (2008), TVPRA § 1232(a)(5)(D)(i). 396. Services (DUCS) is responsible for placing unaccompanied children in appropriate housing throughout their immigration proceedings. Most children who are not released to family or sponsors are housed in shelters, although the full range of placements includes secure facilities and temporary foster care. See generally, Department of Health and Human Services, Factsheet: U.S. Department of Human ez anch , 2017 a-S eralt bruary 2 .P SA v d on Fe in U hive Refugee Resettlement, Unaccompanied Alien Children Program, (May 2014), available at ited 386. C arc orr/unaccompanied_childrens_services_fact_sheet.pdf. 393 no lawful immigration status in the United States; has not attained -50 18 years of age; and with respect o. 14 there is no parent or legal to whom 397. N I J C , “U.S. Government N guardian in the United States; or no parent or legal guardian in the ATIONAL MMIGRANT USTICE United States is available to provide care and physical custody.” 6 U.S.C. § 279(g). 387. The INS was later dissolved and replaced by the Department of Homeland Security and the U.S. Citizenship and Immigration Services. 388. , HUMAN RIGHTS WATCH, SLIPPING THROUGH CRACKS: UNACCOMPANIED CHILDREN DETAINED BY THE U.S. IMMIGRATION AND NATURALIZATION SERVICE (1992). THE 389. Stipulated Settlement Agreement, , No. CV 854544-RJK (Px) (C.D. Cal. Jan. 17, 1997) (“the Flores Settlement”), available at meese_agreement.pdf. 390. 391. ; 8 U.S.C. § 1232(c)(2)(A). 8 C.F.R. § 236.3. 392. 619 F. Supp. 656 (C.D. Cal. 1985). Although was decided prior to 1996 and the introduction of most summary removal statutes at issue in this report, its protections for children survive. ENTER Held Hundreds of Immigrant Children in Adult Detention Facilities, Sometimes for Weeks,” June 4, 2014, available at http://www. immigrantjustice.org/press_releases/us-government-held-hundredsimmigrant-children-adult-detention-facilities#.U5cklSi5K1h; DEPARTMENT OF HOMELAND SECURITY, OFFICE OF INSPECTOR GENERAL, CBP’S HANDLING OF UNACCOMPANIED ALIEN CHILDREN, Sept. 2010, available at http://trac.syr.edu/immigration/library/P5017.pdf were adequately trained with respect to the Agreement and that DHS had developed a one-hour training but only 35 percent of agents in FY 2008 and 40 percent of agents in FY 2009 had completed that training); see generally , 95 MARQ. L. REV. 1635 (2012). 398. In the preamble to the Convention on the Rights of the Child, the United Nations recognized that the “child, by reason of his physical and mental maturity, needs special safeguards and care, including appropriate legal protection, before as well as after birth.” Convention on the Rights of the Child (“CRC”), adopted Nov. 20, 1989, GA Res. 44/25, Annex, UN GAOR 44th Session, Supp. No. 49 at 166, UN Doc. A/44/49 (1989). AMERICAN EXILE: Rapid Deportations That Bypass the Courtroom 139 Case: 14-50393, 02/07/2017, ID: 10304776, DktEntry: 43-2, Page 142 of 203 399. Interview with Kevin G., Nogales, Mexico, March 3, 2014 410. at 16. 411. 400. 412. 401. As a report from the Congressional Research Service and Removal (DRO) of DHS has the mission of enforcing U.S. immigration laws to ensure the departure from the United States of all removable aliens” (internal citations omitted). CONGRESSIONAL RESEARCH SERVICE, UNACCOMPANIED ALIEN CHILDREN: POLICIES AND ISSUES, 14 (2007), available at http://www.rcusa.org/uploads/pdfs/ 402. Regarding Systemic Abuse of Unaccompanied Immigrant Children (June 11, 2014), available at http://www.acluaz.org/sites/default/ 403. General of the Department of Homeland Security has reviewed 16 of the complaints and stated that it was unable to substantiate those complaints. See Memorandum to Secretary Jeh C. Johnson from John Roth, Inspector General, , (July 30, 2014), available at http://www.oig.dhs.gov/ assets/Mgmt/2014/Over_Un_Ali_Chil.pdf; Memorandum to Secretary Jeh C. Johnson from John Roth, Inspector General, , (Aug. 28, 2014), available at http://www.oig.dhs.gov/assets/pr/2014/Sig_Mem_Over_Unac_ Alien_Child090214.pdf. Advocates, however, claim that the OIG did not adequately or sensitively investigate the initial 16 of the 116 complaints and that they continue to receive similar complaints regarding inappropriate detention conditions and abuse from unaccompanied children. National Immigrant Justice Center, “DHS Inspector General Fails to Adequately Investigate Abuse of Detained Immigrant Children,” Sept. 3, 2014, available at http://www. immigrantjustice.org/press_releases/dhs-inspector-general-failsadequately-investigate-abuse-detained-immigrant-children. . 413. While “contiguous” countries includes children from Canada and Mexico, in practice, the law distinguishing between children from contiguous and non-contiguous countries appears to be concerned with Mexican children, given both its legislative history and the number of children arriving from Mexico. 414. The 2014 UNHCR study based on interviews of unaccompanied children found that 64 percent of Mexican children had potential international protection needs; of those children, “[32 percent] spoke of violence in society, 17 percent spoke of violence in the home and 12 percent spoke of both” while “[a] striking 38 percent of the children from Mexico had been recruited into the human smuggling industry—precisely because of their age and vulnerability.” UNHCR Report, n. 19, at 11. 415. REFUGEES INTERNATIONAL, MEXICO’S UNSEEN VICTIMS, 3-4 (July 2, 2014), available at http://refugeesinternational.org/sites/default/ letterhead.pdf. Some Mexican children, Refugees International ez anch , 2017 a-S 2 416. a8 U.S.C. § uary er lt br 1232(a)(2). In addition to Form 93, which is P TVPRAe v. the USA ed on F screening form used to determine the existence of a in v Cited 93 archi to be presented with the I-770 form, to establish their consent to 503 determine whether a child has an asylum claim or is at risk of being . 14No 404. Interview with Maria, February 28, 2014, Agua Prieta, 405. should be able to apply for asylum based on their use, by non-state actors, as child combatants. . at 7. 417. 8 U.S.C. § 1232(a)(2), (a)(5)(D)(i). 418. 8 U.S.C. § 1232(e). Furthermore, if after determining that the child can be removed and does not meet the TVPRA protective to pursue a removal order (as opposed to voluntary departure), the child must be referred to regular immigration proceedings in front of a judge and also transferred to ORR custody. 8 U.S.C. § 1232(a)(5)(D)(i). Even without this screening checklist, Interview with Mexican immigration staff, February 28, removal proceedings rather than require them to take voluntary use of this option. 406. 419. M. Aryah Somers, Draft, 407. . at 8. 408. . 409. n. 402. 140 AMERICAN CIVIL LIBERTIES UNION U.S. Customs and Border Protection, , available at http://www.cbp.gov/ newsroom/stats/southwest-border-unaccompanied-children (accessed July 1, 2014); see also Betsy Cavendish and Maru Cortazar, APPLESEED, CHILDREN AT THE BORDER: THE SCREENING, PROTECTION AND REPATRIATION OF UNACCOMPANIED MEXICAN MINORS (Appleseed Report), 49 (2011), available at http://appleseednetwork.org/wpcontent/uploads/2012/05/Children-At-The-Border1.pdf. Case: 14-50393, 02/07/2017, ID: 10304776, DktEntry: 43-2, Page 143 of 203 APPLESEED 438. Estudios Migratorios de la Unidad de Política Migratoria de la SEGOB). 421. . at 39. at 27, June 2014. 440. U.S. Department of Health and Human Services, About available at https://www.acf. 441. 442. . at 29. Appleseed Report, 443. n. 16, at 14. 422. Interview with Arturo, Nogales, Mexico, March 3, 2014 (on n. 419. at 49-50. 444. 2014). 423. . at 36. 439. 420. at 40. 445. 424. to refer the child for a formal removal hearing, but as the TVPRA screening (when it occurs) does not include any questions about 446. States. 447. Interview on March 3, 2014, Nogales, Sonora, Mexico (on 425. Interview with Hector, Nogales, Mexico, March 3, 2014 (on 426. Interview with Brian, Nogales, Mexico, March 3, 2014 (on 427. 428. 429. 430. See also, UNHCR Report, children interviewed raised international protection concerns. , FUSION, July 11, 2014, available at http://fusion.net/justice/story/kids-equalcentral-american-kids-court-date-mexicans-845375. 448. Interview with Mexican immigration staff in Nogales, . at 48. 436. , N.Y TIMES, July 15, 2014, available at http:// takingnote.blogs.nytimes.com/2014/07/15/beware-john-cornynshumane-immigration-act/?_php=true&_type=blogs&_php=true&_ type=blogs&_r=1&. 437. . 452. See 8 C.F.R. § 236.3; (C.D. Cal. 1985). 8 C.F.R. § 236.3(h). 433. CENTER FOR PUBLIC POLICY PRIORITIES, A CHILD ALONE AND WITHOUT PAPERS: A REPORT ON THE RETURN AND REPATRIATION OF UNACCOMPANIED UNDOCUMENTED CHILDREN BY THE UNITED STATES, at 40, (2008) (“CPPP Report”), available at http://forabettertexas.org/ images/A_Child_Alone_and_Without_Papers.pdf. 435. n. 419, at 36. ATIONAL OURNAL 451. 434. Appleseed Report, ez 449. anch , 2017 M. E. interview with legal services organization in California, a-S eralt bruary 2 .P SA v d on Fe Johnson, 450. Fawn U d e17. in archive J , July 16, N n. Citat 402 2014, available at http://www.nationaljournal.com/congress/there93 503 . . 14No 20140716?ref=nj_daily. Interview with Hiram and Pepe, Nogales, Mexico, March 3, 431. 432. Erin Siegal McIntyre, n. 16 at 14. , 619 F. Supp. 656 453. 8 C.F.R. § 1236.3(g) (“Each juvenile, apprehended in the immediate vicinity of the border, who resides permanently in Mexico or Canada, shall be informed, prior to presentation of the voluntary departure form or being allowed to withdraw his or her application for admission, that he or she may make a telephone call to a parent, close relative, a friend, or to an organization found on the free legal services list. A juvenile who does not reside in Mexico or Canada who is apprehended shall be provided access to a telephone and must in fact communicate either with a parent, adult relative, friend, or with an organization found on the free legal services list prior to presentation of the voluntary departure form. If such juvenile, does in fact make such contact, the requirements of this section are 454. Appleseed Report, n. 419, at 39. AMERICAN EXILE: Rapid Deportations That Bypass the Courtroom 141 Case: 14-50393, 02/07/2017, ID: 10304776, DktEntry: 43-2, Page 144 of 203 455. . The Form 93 is not publicly available on the CBP website article.exm/2011-08-17_cbp_agent_pleads_guilty_to_harassment; Interview with Greg Boos, by telephone, January 17, 2014 (on Appleseed noted that it was able to procure a heavily redacted copy of the form only in response to their 2010 FOIA. 456. 457. . 458. source that reviewed CBP data, between 2007 and 2010, 422 individuals were issued expedited removal orders in the area where Helle worked (Blaine, Washington); 55 of those orders came from Helle alone. Kathy Tomlinson, , CANADIAN BROADCASTING CORPORATION, Sept. 27, 2011, available at http://www.cbc.ca/news/canada/british-columbia/ex-u-s- . at 36. . 459. Prieta, Sonora, Mexico. 460. Appleseed Report, n. 419, at 34. 461. 462. 467. Kathy Tomlinson, n. 466; see also Expedited Removal, Sept. 20, 2011 (requesting that CBP review Interview with Greg Boos, by telephone, January 17, 2014 where a supervisor will vacate the order, there may still be retaliatory consequences for the individual returning to the United States. In one case, Boos says, a client had been accused of overstaying her visa but a FOIA proved that to be untrue; although the deportation order was rescinded, according to Boos, the supervisor said his client was “really going to have to prove her non-immigrant intent” in the 468. Interview with Cathy Potter, by telephone, July 3, 2014 (on 469. See Section I. A.-E., on the temporal, procedural, and substantive limits of judicial review available for expedited removal, reinstatement, administrative removal, and stipulated orders of removal. ez anch , 2017 a-S 463. Interview with Greg Boos, by telephone, January 17, 2014 eralt bruary 2 .P see also, Michael Platt, SA v d on Fe in U S , Feb. 11, 2013, available ed ,C it at http://www.rchive C 3a calgarysun.com/2013/02/11/canadian-actor-chad-rook-barred5039 14No., F , Feb. 21, 2013, retaliate.” ALGARY UN ORBES available at http://www.forbes.com/sites/kashmirhill/2013/02/21/ the-privacy-price-to-cross-the-border/; CTV BRITISH COLUMBIA, , Jan. 9, 2014, available at http://bc.ctvnews.ca/b-c-actor-credits-mediaattention-for-overturning-border-ban-1.1632570#ixzz36okzWcFC. 470. The Board of Immigration Appeals, as well as some courts, has determined that a person seeking review of a prior removal order must demonstrate a “gross miscarriage of justice” for a court to undo the order. , 14 I&N Dec. 110, 111-12 (BIA 1972); , 359 F. Appx 370, 372 (4th Cir. 2009) (per curiam); , 436 F.3d 508 (5th Cir. 2006); , 183 Fed.Appx. 425 (5th Cir. 2006). In the Ninth Circuit, individuals seeking to collaterally attack a deportation order must show that the order was fundamentally unfair because the orders violated due process and the individuals were prejudiced by that violation. , 364 F.3d 1042, 1048 (9th Cir. 2004) (internal quotation marks and citation omitted). 471. Rachel Rosenbloom, , 464. Operations, U.S. Customs and Border Protection, Dec. 30, 2013 (on 33 U.HAWAI’I L. REV. 139, 183 (2011). 465. 472. Although rejected by 10 federal circuit courts of appeal, the Board of Immigration Appeals, which reviews appeals of immigration judge decisions, maintains that there is a post-departure 466. even if involuntary, is “a transformative event that fundamentally point along the side of the neck. . . . I told the driver, ‘You can drive any way you want to in Canada. But if you drive that way down better position after departure than any other alien who is outside the territory of the United States.” , 24 I&N Dec. 646, 656 (B.I.A. 2008) (emphasis in the original). See generally car and left.” Declaration of Joel J. Helle in Support of Notice of Removal, , NO. CV11-971, See also Jeremy Schwartz, , NORTHERN LIGHT, Aug. 17, 2011, available at http://www.thenorthernlight.com/news/ 142 AMERICAN CIVIL LIBERTIES UNION 65 SMU L. REV observes that despite all the impediments built against individuals seeking review of their case post-deportation, “the entire discussion Case: 14-50393, 02/07/2017, ID: 10304776, DktEntry: 43-2, Page 145 of 203 485. by the specter of its opposite: failure to depart. As the Supreme Court repeatedly noted in the days before IIRIRA, the reason that motions to reopen were particularly disfavored in the deportation or removal context was that ‘every delay works to the advantage of the For the person who is already outside the United States, there is nothing to be gained by a motion to reopen or reconsider unless it is meritorious.” Rosenbloom, at 181. 473. Interview with Carlos S., Tijuana, Mexico, March 24, 2014 474. Interview with Juan C., Tijuana, Mexico, March 24, 2014 (on 475. 476. According to FOIA data obtained by The New York Times received reinstatement orders from ICE were apprehended through the “criminal alien program” (CAP) and were not necessarily living Interview with Ken McGuire, by telephone, February 11, 486. ICE has explicit civil immigration enforcement priorities (for apprehension, prosecution, and removal), which include non-citizens who pose a national security risk, fugitives, and recent unlawful entrants. See U.S. Customs and Immigration Enforcement, John Morton, Director, Memorandum, Civil Immigration Enforcement Action: Priorities for the Apprehension, Detention, and Removal of Aliens, March 2, 2011, available at https://www.ice.gov/doclib/ news/releases/2011/110302washingtondc.pdf; U.S. Customs and Immigration Enforcement, John Morton, Director, Memorandum, “Exercising Prosecutorial Discretion Consistent with the Civil Immigration Enforcement Priorities of the Agency for the Apprehension, Detention, and Removal of Aliens,” June 17, 2011, available at http://www.ice.gov/doclib/secure-communities/pdf/ prosecutorial-discretion-memo.pdf. 487. Interview with Pancho, Nogales, Mexico, March 3, 2014 (on 488. 489. 477. INA §§ 212(a)(9)(C)(i)(II), (C)(ii). 490. 478. 479. 480. 481. Interview with Alex B., by telephone, January 17, 2014 (on ez anch , 2017 Interview with Nancy Falgout, by telephone, January 14, a-S eralt bruary 2 .P SA v d on Fe Interview with Ken McGuire, by telephone, n U 11, i February hive ited C arc 393 25, 2014 (on Interview with Enrique, Tijuana, 4-50 March Mexico, 492. Shoba S. Wadhia, n. 491, at 21. Similarly, a large o. 1 N number of appeals in circuit court come from asylum or withholding491. Shoba S. Wadhia, 5 COLUM. J. RACE & L. 1, 21 (2014). Similarly, a large number of appeals in circuit court come from asylum or withholding-based claims. Stacy Caplow, , 7 NW. J.L. & SOC. POL’Y 1 (2012). 482. An in absentia order of removal can be entered against a person who does not show up at their immigration hearing if the government can demonstrate, by clear, convincing, and unequivocal evidence, that the proper written notice was provided and that the individual was removable. 8 C.F.R. § 1003.26. This report does not focus on individuals in this category, who could have seen a judge but for whatever reason, missed their hearings and were subsequently ordered removed by an immigration judge. However, people who were deported with in absentia orders who said they had never received notice of their hearing, some of whom appeared to have very strong immigration cases and every incentive to appear parent raising four U.S. citizen children and who had been in the United States for approximately 26 years, paid a lawyer who never informed him of the court date. Since his deportation, he says, his three younger children have been staying with friends. 483. Interview with Marcos V., Tijuana, Mexico, March 25, 2014 484. Interview with Ken McGuire, by telephone, February 11, based claims. Stacy Caplow, , 7 NW. J.L. & SOC. POL’Y 1 (2012). 493. C.F.R. § 214.14(c)(5)(i) (“For a petitioner who is subject to an order of exclusion, deportation, or removal issued by the Secretary, the order will be deemed canceled by operation of law as 494. U.S. Department of Homeland Security, U.S. Citizenship and (T) and Victims of Crime Form I-918 (U) Visa Statistics (FY2002FY2012),” (2012) available at http://www.uscis.gov/tools/reportsstudies/immigration-forms-data/data-set-form-i-914-application-tnonimmigrant-status (accessed on June 17, 2014). Even those who are “approved” for U visas, however, do not immediately get them, as there is a statutory cap of 10,000 U visas per year. Individuals who are approved for a U visa but cannot get one due to the cap are given a Notice of Conditional Approval given deferred action and placed on a waiting list until the next year. See U.S. Citizenship and Immigration Services, “USCIS Approves 10,000 U Visas for 5th Straight Fiscal Year,” (Dec. 11, 2013); see generally, ASISTA AMERICAN EXILE: Rapid Deportations That Bypass the Courtroom 143 Case: 14-50393, 02/07/2017, ID: 10304776, DktEntry: 43-2, Page 146 of 203 Stakeholder Teleconference (Dec. 11, 2013). 495. U.S. Citizenship and Immigration Services, “Removal considered as criminal defendants two years ago.” Joe Palazzollo and Miriam Jordan, , WALL ST. JOURNAL, May 31, 2013, available at http://online.wsj.com/article/SB1000142 4127887323336104578499480108652610.html. Interview with Demetrio, Adelanto, California, March 28, 505. See WAREHOUSED AND FORGOTTEN: IMMIGRANTS TRAPPED IN OUR SHADOW PRIVATE PRISON SYSTEM, June 2014, available at aclu-car-reportonline.pdf. 498. Interview with Emmanuel M., by telephone, June 13, 2014 506. GRASSROOTS LEADERSHIP, OPERATION STREAMLINE: COSTS AND CONSEQUENCES (Sept. 2012), available at http://grassrootsleadership. 499. Interview with Elizabeth Badger, by telephone, January 13, request and responses, 496. ).] 497. prosecutions for illegal entry and reentry continue to rise, and their corresponding costs should be expected to rise as well. 500. 501. Operation Streamline proceedings for illegal entry, in particular, have been criticized for their lack of due process. See July 2014, available at 507. Syracuse University: Transactional Records Clearinghouse (TRACfed), n. 98. 508. Reform should Eliminate Operation Streamline, available at https:// see generally, HUMAN RIGHTS WATCH, TURNING MIGRANTS INTO CRIMINALS (2013), available at http://www.hrw.org/reports/2013/05/22/ turning-migrants-criminals-0. Judges combine the initial appearance, arraignment, plea, and sentencing into a single hearing, sometimes taking as few as 25 seconds per defendant. Fernanda Santos, , supra n. 98, FY 2013 DHS data provided to The New York Times ez anch , 2017 a-S eralt bruary 2 .P SA v d on Fe U d in rch i http://www.nytimes. ive510. Interview with Veronica Trull, by telephone, March 2, 2014 Border,” The New York Times, Feb. 11, 2014, te C 3a com/2014/02/12/us/split-second-justice-as-us-cracks-down-on5039 border-crossers.html. 14No. 511. 502. 509. Interview with Victoria Trull, by telephone, March 2, 2014 see also, HUMAN RIGHTS WATCH, TURNING MIGRANTS INTO CRIMINALS, n. 502 at 46 (quoting one federal defender as saying three-quarters of her clients charged with illegal reentry never saw an immigration judge). 8 U.S.C. §§ 1325-1326 (2011); 18 U.S.C. § 3559 (2011). 503. U.S. DEP’T OF JUSTICE, SMART ON CRIME, REFORMING THE CRIMINAL JUSTICE SYSTEM FOR THE 21ST CENTURY, at 2 (Aug. 2013), available at http://www.justice.gov/ag/smart-on-crime.pdf. 504. As Judge Sam Sparks, U.S. District Court for the Western District of Texas, said, “The expenses of prosecuting illegal entry and reentry cases (rather than deportation) on aliens without any American taxpayer that is neither meritorious nor reasonable.” MY , FOX HOUSTON, Feb. 7, 2010, http://www.myfoxhouston.com/story/18229445/ federal-judge-questions-immigration-prosecutions. Judge Ruben Castillo of the U.S. District Court for the Northern District of Illinois and former Commissioner, U.S. Sentencing Commission, make sense.” Forrest Wilder, , TEXAS OBSERVER Dec. 8, 2010, available at http://www.texasobserver.org/ forrestforthetrees/the-lawsuit-west-of-the-pecos. Judge Robert C. Brack, on the U.S. District Court for the District of New Mexico, observed, “Every day I see people who would never have been 144 AMERICAN CIVIL LIBERTIES UNION 512. NATIONAL PUBLIC RADIO, , Sept. 13, 2010. 513. NPR, “Is Operation Streamline Worth Its Budget Being Tripled?” September 5, 2013, available at: http://www.npr. org/2013/09/05/219177459/is-operation-streamline-worth-itsbudget-being-tripled. 514. Strategic Plan Not Yet in Place to Inform Border Security Status and Resource Needs,” December 2012, https://media.azpm.org/master/ document/2013/1/9/pdf/gaoborderreport.pdf. 515. Interview with Felipe R., Reynosa, Mexico, April 17, 2014 516. 517. Interview with Francisco, Tijuana, Mexico, March 24, 2014 518. 8 U.S.C. § 1326(a). 519. , 481 U.S. 828, 838 (1987). Case: 14-50393, 02/07/2017, ID: 10304776, DktEntry: 43-2, Page 147 of 203 520. The exhaustion requirement “cannot bar collateral review of a deportation proceeding when the waiver of right to an administrative appeal did not comport with due process.” 364 F.3d 1042, 1048 (9th Cir. 2004) (citing , 249 F.3d 1180, 1183-84 (9th Cir. 2001)). The Due Process 533. deportation order be “considered and intelligent.” at 1049; see , 481 U.S. at 839. An alien who is not advised of his rights cannot make a “considered and intelligent” waiver, and is thus not subject to the exhaustion of administrative remedies requirement of 8 U.S.C. § 1326(d). at 10491050. 536. 521. Procedures Manual,” Nov. 2007 (revised July 2010), at 136 (p. 49 of , 228 F.3d 956, 960 (9th Cir. 2000). 522. For a non-citizen who is not a permanent resident of the United States and who wants to immigrate to the United States Interview with Inocencia C., Orange, California, March 22, 534. . 535. . Interview with Ericka E.F., T. Don Hutto Residential Center, 537. Department of Homeland Security, U.S. Citizenship and Immigration Services, “Reinstatement of a Prior Order,” at 1 (p. 14 538. residence. The approved I-130 makes the individual eligible for an immigrant visa if and when that becomes available. Immediate relatives, such as parents, spouses, or children of U.S. citizens, do not have to wait for a visa number whereas other relatives in “preference” categories are subject to the immigrant visa limit and must wait for a visa to become available. See generally, U.S. Department of Homeland Security, USCIS, “Instructions for Form I-130 Petition for Alien Relative,” available at http://www.uscis. 539. 540. Interview with Jacqueline Bradley Chacon, by telephone, 541. U.S. Department of Homeland Security, Immigration and Customs Enforcement, , 7 (April 28, 2014) (and noting that “ICE also removed 14,892 aliens claiming a U.S.-born child who were apprehended along the borders while attempting to unlawfully enter the United States”), available at Department of Homeland Security, Immigration and Customs Enforcement, , (April 28, 2014) available at ez anch , 2017 523. a-S eralt bruary 2 (S.D. Cal. Sept. 30, 2013). .P SA v d on Fe 524. , No.4:10-cr-0397, in U hive ited Memorandum and Order (S.D. Tex. Nov. 16, 2010). C arc 393 (S.D. -54:13-cr-00611, 525. , No. 0 542. H I P ,H F o. 14 Tex. Jan. 30, 2014). N R W M B H C UMAN MPACT 526. HUMAN RIGHTS WATCH, TURNING MIGRANTS INTO CRIMINALS, n. 502 at 63-64. 527. The Refugee Convention, 528. Interview with Soledad, San Francisco, California, February 529. n. 181, art. 31(1). . ARTNERS OW AMILY-FOCUSED IMMIGRATION HILDREN AND FAMILIES, 8 (June 2013), available at http://www.familyunityfamilyhealth.org/ uploads/images/FamilyUnityFamilyHealth.pdf; see generally, Seth Freed Wessler, APPLIED RESEARCH CENTER (now “Race Forward”), SHATTERED FAMILIES: THE PERILOUS INTERSECTION OF IMMIGRATION ENFORCEMENT AND THE CHILD WELFARE SYSTEM (November 2011), available at https://www.raceforward.org/research/reports/shatteredfamilies?arc=1. EFORM ILL EAN ETTER EALTH FOR 543. 530. 544. 531. Under Interview with Marisol Pérez, by telephone, February 26, , a class-action lawsuit brought by This case was brought in the Central District of California and 545. See generally IMMIGRATION LAWYERS ASSOCIATION, AMERICAN Robbins, No. 2:07-cv-03239-TJH-RNB (C.D. Cal. 2010). 532. Interview with Inocencia C., Orange, California, March , (2009) available at http://www.aila.org/content/ default.aspx?bc=1016|6715|6721|8815|31024|30095. For example, an immigrant who was unlawfully present in the U.S. prior to AMERICAN EXILE: Rapid Deportations That Bypass the Courtroom 145 Case: 14-50393, 02/07/2017, ID: 10304776, DktEntry: 43-2, Page 148 of 203 waiver under INA § 212(a)(9)(B)(v). An asylee or refugee subject to the three- or ten-year bar can seek a waiver under INA § 209(c). If an individual is subject to a permanent ban under 212(a)(9)(C)(i) (I), the options for a waiver are more limited. Certain individuals may still apply for waivers, such as Temporary Protected Status (TPS) applicants or asylees and refugees applying to adjust status. An undocumented victim of violence under the Violence Against Women Act (VAWA) can apply for a discretionary waiver of the fraud or misrepresentation bar if they meet certain criteria. , AMERICAN IMMIGRATION LAW FOUNDATION LEGAL ACTION CENTER, (2009) available at http://www.ailf.org/lac/pa/lac_pa_fraudwaiver.pdf. 546. 547. 548. Interview with Katie and Jorge R., by telephone, January 28, (2006), entered into force May 3, 2008, arts. 12-13 (requiring that governments “ensure effective access to justice for persons with disabilities ... including through the provision of procedural and age-appropriate accommodations” and further “take appropriate measures to provide access by persons with disabilities to the support they may require in exercising their legal capacity.”). 560. U.N. Committee on the Rights of the Child, “Treatment of Unaccompanied and Separated Children Outside their Country of Origin,” General Comment No. 6, UN Doc. CRC/GC/2005/6 (2005), available at http://www2.ohchr.org/english/bodies/crc/docs/GC6. pdf, paras. 36 & 69 (“the unaccompanied or separated child should representative”). 561. Body of Principles for the Protection of Persons Under Any Form of Detention and Imprisonment, Principle 17(2), G.A. Res. 43/173, Annex, U.N. Doc. A/Res/43/173 (Dec. 9, 1988). 562. ICCPR, n. 555, art. 14. According to the Human Rights Committee, the requirement of a competent, independent, and impartial tribunal “is an absolute right that is not subject to any exception.” Human Rights Committee, “Right to equality before courts and tribunals and to a fair trial,” General Comment No. 32, U.N. Doc CCPR/C/GC/32 (2007), ¶ 19. . 549. 550. 563. American Convention on Human Rights (“Pact of San José, Costa Rica”), adopted November 22, 1969, O.A.S. Treaty Series No. 36, 1144 U.N.T.S. 123, entered into force July 18, 1978, reprinted in Basic Documents Pertaining to Human Rights in the Inter-American 551. ez anch , 2017 a-S eralt bruary 2 553. . .P SA v d on Fe 554. , Inter-Am. Ct. H.R. (ser. C) No. 218, eoas.org/dil/treaties_B-32_American_Convention_on_Human_ in U hiv Rights.htm. ited ¶ 97 (Nov. 23, 2010). C arc 393 564. Inter-American Commission on Human Rights, Report No. 555. International Covenant on Civil and Political Rights -50 o. 14 Res. 2200A (XXI), (“ICCPR”), adopted December 16, 1966, G.A. N 552. 21 U.N. GAOR Supp. (No. 16) at 52, U.N. Doc. A/6316 (1966), by the United States on June 8, 1992, http://www.ohchr.org/ en/professionalinterest/pages/ccpr.aspx, art. 13; see also Body of Principles for the Protection of Persons Under Any Form of Detention and Imprisonment, Principle 17(2), G.A. Res. 43/173, Annex, U.N. Doc. A/Res/43/173 (Dec. 9, 1988) (right of all detainees to receive legal assistance if he or she is unable to afford a lawyer), available at http://www.un.org/documents/ga/res/43/ a43r173.htm. 556. U.N. Human Rights Committee, “The Position of Aliens Under the Covenant,” General Comment No.15, U.N. Doc. A/41/40 (1986), ¶¶ 9, 10. 557. United Nations, , para. 67 (August 7, 2014). 558. ICCPR, art 13, n. 555. 559. International Convention on the Protection and Promotion of the Rights and Dignity of Persons with Disabilities (“CRPD”), adopted December 13, 2006, G.A. Res.61/106, U.N. Doc. A/61/49 146 AMERICAN CIVIL LIBERTIES UNION Guttlein and Rodolfo Izal Elorz v. Mexico, April 13, 1999, Section 70-1. 565. ICCPR, n. 555, art 2. 566. Universal Declaration of Human Rights, G.A. Res. 217A (III), U.N. Doc A/810 at 71 (1948), art. 8 (“Everyone has the right to an effective remedy by the competent national tribunals for acts violating the fundamental rights granted him by the constitution or by law.”). 567. Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (Convention Against Torture), adopted December 10, 1984, G.A. res. 39/46, annex, 39 U.N. GAOR Supp. (No. 51) at 197, U.N. Doc. A/39/51 (1984), entered into force art. 14, sec. 1 (requiring countries to “ensure in its legal system that the victim of an act of torture obtains redress and has an enforceable right to fair and adequate compensation.”). 568. International Convention on the Elimination of All Forms of Racial Discrimination (“CERD”), adopted December 21, 1965, G.A. Res. 2106 (XX), annex, 20 U.N. GAOR Supp. (No. 14) at 47, U.N. Doc. A/6014 (1966), 660 U.N.T.S. 195, entered into force January Case: 14-50393, 02/07/2017, ID: 10304776, DktEntry: 43-2, Page 149 of 203 576. (granting victims of racial discrimination “the right to seek ... just and adequate reparation or satisfaction for any damage suffered as a result of such discrimination.”). 569. American Convention on Human Rights, O.A.S. Treaty Series No. 36, 1144 U.N.T.S. 123, entered into force July 18, 1978, reprinted in Basic Documents Pertaining to Human Rights in the 577. IACHR, Report No. 51/96, Case 10.675, Haitian Centre for Human Rights (United States), March 13, 1997. 578. 570. European Convention for the Protection of Human Rights and Fundamental Freedoms, 213 U.N.T.S. 222, opened for signature Nov. 4, 1950, entered into force Sept. 3, 1953, as amended by Protocols Nos. 3, 5, 8, and 11, entered into force 21 September 1970, 20 December 1971, 1 January 1990, and 1 November 1998 respectively, art. 13 (“Everyone whose rights and freedoms as set forth in this Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has UNHCR CONFIDENTIAL REPORT, n. 16 at 25 (discussing ground for not providing protection in the United States). 579. art. 25 (“Everyone has the right to simple and prompt recourse, or any other effective recourse, to a competent court or tribunal for protection against acts that violate his fundamental rights recognized by the constitution or laws of the state concerned or by this Convention, even though such violation may have been committed , 509 U.S. 155 (1993). Refugee Convention, n. 189, art. 31. 580. UNHCR, Guidelines on the Applicable Criteria and Standards relating to the Detention of Asylum seekers and Alternatives to Detention, Guideline 1, (2012), available at http://www.unhcr. org/505b10ee9.html. 581. CRC, n. 398, arts. 3, 22; see also I/A Court H.R., Juridical Condition and Human Rights of the Child,” Advisory Opinion OC17/02, paragraphs 58-59 (August 28, 2002), available at http://www.corteidh.or.cr/docs/opiniones/seriea_17_ing.pdf. 582. U.N. Committee on the Rights of the Child, General Comment No. 6, at para. 84. 583. . ¶ 79. 584. UNHCR, Guidelines on the Applicable Criteria and Standards relating to the Detention of Asylum-Seekers and Alternatives to Detention, (2012) available at http://www.unhcr.org/505b10ee9. html, para. 54. ez anch , 2017 S 37(b), 572. American Convention on Human Rights, art. 22(8). The 585. tal CRC, art.ary 2 n. 398; U.N. Convention on the Rights Inter-American Court for Human Rights, interpreting the American Pera Child, . of theFebru Convention, recently reiterated this “individual human right to v SA n , U.N. Doc. CRC/C/DEU/CO/3o U seek and receive international protection on foreignn territory.” ed iOpinion rchived 4 (Feb. 25, 2014); United Nations, Report of the United Nations Cit Inter-American Court of Human Rights, Advisory 3 a Special Rapporteur on the Human Rights of Migrant Workers, 39 OC-21/14, Gabriela Rodríguez Pizarro, E/CN.4/2003/85, para. 75(a) (December 4-50 1 30, 2002) (“detention of children is permitted only as a measure of No. Summary, Aug. 19, 2014. 571. Universal Declaration of Human Rights, n.564, art. 14. 573. (OHCHR), , Guideline 7, para. 5, A/69/CRP.1, 23 July 2014. 574. OHCHR, note 8, Guideline 7. 575. The Refugee Convention, n. 189, art. 33. See also Protocol Relating to the Status of Refugees, 606 U.N.T.S. 267, entered into force October 4, 1967. Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (Convention Against Torture), adopted December 10, 1984, G.A. res.39/46, annex, 39 U.N. GAOR Supp. (no. 51) at 197, U.N. Doc. A/39/51 (1984), entered into force June 26, 1987, art. 3.; ICCPR, n. 555, art. 7.; U.N. Human Rights Committee (UN HRC), General Comment 20, Replaces General Comment 7 Concerning Prohibition of Torture and Cruel Treatment or Punishment (FortyFourth Session, 1992), Compilation of General Comments and General Recommendations Adopted by Human Rights Treaty Bodies, U.N. Doc. HRI/GEN/1/Rev.6 at 151 (2003). last resort and only when it is in the best interest of the child, for the shortest appropriate period of time and in conditions that ensure the realization of the rights enshrined in the Convention on the Rights of the Child”), available at http://www.unhchr.ch/Huridocda/Huridoca. see also François Crépeau, U.N. Special Rapporteur on the human rights of migrants, “Migrant Children should not be Detained,” High-level Dialogue on international migration and development (October 2, 2013). 586. U.N. Convention on the Rights of the Child, , U.N. Doc. CRC/C/PRT/CO/3-4 (Feb. 25, 2014). 587. U.N. Convention on the Rights of the Child, , U.N. Doc. CRC/C/CHN/CO/3-4 (Oct. 4, 2013). 588. IACHR, Report No. 51/96, Case 10.675, Haitian Centre for Human Rights (United States), March 13, 1997 available at http:// www.cidh.oas.org/annualrep/96eng/USA10675.htm. AMERICAN EXILE: Rapid Deportations That Bypass the Courtroom 147 Case: 14-50393, 02/07/2017, ID: 10304776, DktEntry: 43-2, Page 150 of 203 589. , 387 U.S. 1, 37 (1967) ( , 287 U.S. 45, 69 (1932)). 590. U.N. Committee on the Rights of the Child, General Comment No. 6, para. 69. 591. ICCPR, n. 555, art. 9(4). 592. U.N. Human Rights Committee, Communication No. 560/1993. 593. Human Rights Committee, General Comment No. 8, in Report of the Human Rights Committee, Human Rights Committee, U.N. GAOR, 37th sess., Supp. No. 40, Annex V at 95 (1982). 594. UNHCR DETENTION GUIDELINES: GUIDELINES ON THE APPLICABLE CRITERIA AND STANDARDS RELATING TO THE DETENTION OF ASYLUM-SEEKERS AND ALTERNATIVES TO DETENTION (2012), paras. 18–19 (providing that decisions to detain must be based on a “detailed and individualized assessment”) and para. 20 (establishing that mandatory or automatic detention is prohibited as arbitrary), available at http://www.unhcr.org/505b10ee9.html; a violation of the right to liberty where detention of irregular migrants was automatic without consideration of individualized circumstances); U.N. Human Rights Committee, , No. 560/1993, U.N. Doc. CCPR/C/59/D/560/1993, April 30, 199 paras. 9.2, 9.4 (holding that detention must be necessary “in all the circumstances of the case” and the grounds for detention must be “particular to . . . individuals”); InterAmerican Commission for Human Rights (“IACHR”), REPORT ON IMMIGRATION IN THE UNITED STATES: DETENTION AND DUE PROCESS (Dec. 2010) ¶ 428 (disapproving “mandatory detention for broad classes of immigrants”) and paras. 35, 37, available at http://cidh. DetentionAndDueProcess.pdf. need for detaining an asylum seeker) available at http://www.unhcr. org/505b10ee9.html; see also UNHCR, DETENTION OF REFUGEES AND ASYLUM SEEKERS (1986), available at http://www.unhcr.org/refworld/ docid/3ae68c43c0.html (giving the initial statement regarding the protections due to detainees). 598. See generally, HUMAN RIGHTS WATCH, FORCED APART: FAMILIES SEPARATED AND IMMIGRANTS HARMED BY UNITED STATES DEPORTATION POLICY (2007), available at http://www.hrw.org/ reports/2007/07/16/forced-apart-0. 599. Universal Declaration of Human Rights (UDHR), adopted December 10, 1948, G.A. Res. 217A(III), U.N. Doc. A/810 at 78 (1948), art. 16(3). The Declaration also states, “Motherhood and childhood are entitled to special care and assistance.” UDHR, art. 25(2). 600. CRC, 601. U.N. HUMAN RIGHTS COMMITTEE, n. 398, art. 9(1). , art. 23, July 27, 1990. 602. U.N. HUMAN RIGHTS COMMITTEE, , Nov. 4, 1986. 603. , Communication No. 930/2000, U.N. Doc. CCPR/C/72/D/930/2000 (2001). ez anch , 2017 a-S eralt bruary 2 .P SA v d on Fe in U hive ited C arc 393 -50 o. 14 N 595. IACHR REPORT ON DETENTION, n. 591, paras. 39, 134 (“The burden of proof must be on the authority ordering detention or denying parole, not on the immigrant”); UNHCR Detention Guidelines, n. 591, para. 47(v) (“[The] burden of proof to establish the lawfulness of the detention rests on the authorities in question”); see Human Rights Comm., Shams et al v. Australia, Communication Nos. 1255, 1256, 1259, 1260, 1266, 1268, 1270, 1288/2004, U.N. Doc CCPR/ C/ 90/ D/ 1255, 1256, 1259, 1260, 1266, 1268, 1270, and 1288/2004 (2007), para. 72 (holding that a government must advance grounds “particular to [individual] cases which would justify their continued detention”); Human Rights Comm., , note 79, ¶ 9.4 (holding that a to be designated as arbitrary). 596. U.N. COMMISSION ON HUMAN RIGHTS, REPORT OF THE WORKING GROUP ON ARBITRARY DETENTION, A/HRC/13/30, January 18, 2010, para. 59. 597. See Shams et al v. Australia, supra n. 592; UNHCR, DETENTION GUIDELINES, n. 591, Guideline 4 (prohibiting arbitrary detention and requiring individualized assessment of the 148 AMERICAN CIVIL LIBERTIES UNION Case: 14-50393, 02/07/2017, ID: 10304776, DktEntry: 43-2, Page 151 of 203 ez anch , 2017 a-S eralt bruary 2 .P SA v d on Fe in U hive ited C arc 393 -50 o. 14 N Case: 14-50393, 02/07/2017, ID: 10304776, DktEntry: 43-2, Page 152 of 203 ez anch , 2017 -S ral a hundreds 2 everytyear,bruary of thousands of people (83 .P e SA v d percent) are deported from the United States without a on F U in ve a judge; instead, their Cited 93 archi hearing. These individuals never see single immigration rights and fates are determined by a 503 enforcement ofﬁcer in a summary removal procedure that . 14No can take mere minutes. The ofﬁcer issuing a deportation E order is the same ofﬁcer who arrests, detains, prosecutes, and deports the individual; there is no independence, no opportunity for the individual to speak to a lawyer, and no meaningful opportunity for the individual to defend his or her rights to be in the United States. Those deported in these near-instantaneous removal procedures—which are used in over 83 percent of all deportations—include U.S. citizens, longtime residents with U.S. citizen children, asylum seekers, and individuals with valid work and tourist visas. While a person can be ordered removed and deported in a matter of hours, the consequences and ramiﬁcations of these removal orders can last a lifetime; individuals are banished for years, sometimes for life, and with almost no opportunity to ﬁx an unfair or even illegal removal order. This report documents 136 cases of individuals who faced deportation from the United States without the basic opportunity to be heard in court—in some cases, with shattering consequences for them and their U.S. citizen family. Case: 14-50393, 02/07/2017, ID: 10304776, DktEntry: 43-2, Page 153 of 203 Immigration Enforcement Actions: 2013 JOHN F. SIMANSKI Each year, the Department of Homeland Security (DHS) undertakes immigration enforcement actions involving hundreds of thousands of aliens who may be or are in violation of U.S. immigration laws. These actions include the apprehension or arrest, detention, return, and removal from the United States of aliens (see Box 1). Aliens may be removable from the United States for violations including illegally entering the United States, failing to abide by the terms and conditions of admission, or committing crimes. Primary responsibility for the enforcement of immigration law within DHS rests with U.S. Customs and Border Protection (CBP), U.S. Immigration and Customs Enforcement (ICE) and U.S. Citizenship and Immigration Services (USCIS). CBP is generally responsible for immigration enforcement at and between the ports of entry, and ICE is generally responsible for interior enforcement, and detention and removal operations. USCIS is generally responsible for the administration of immigration and naturalization functions (see APPENDIX). This Office of Immigration Statistics (OIS) Annual Report presents information on aliens determined inadmissible, apprehended, arrested, detained, returned, or removed, during 2013.1 Key findings in this report include: ENFORCEMENT ACTIONS PROCESS Inspection Process All aliens who are applicants for admission or otherwise seeking admission or readmission to or transit through hez are 17 • CBP determined approximately 204,000 aliens were theanc States 20inspected. CBP officers within the United inadmissible. a-S of y 2, (OFO) eralt Office arField Operationsapplyingdetermine the admisu • DHS apprehended approximately 662,000. aliens; 64 Febr of aliens who are v P n sibility for admission to the SA percent were citizens of Mexico.U United States at designated ports of entry. Applicants for do in ve admission determined to be inadmissible may be, as Cited aliens. chi • ICE detained nearly 441,000 93 ar 3 appropriate, permitted to voluntarily withdraw their 0 • Approximately.178,000 aliens were returned to their 14-5 application for admission and return to their home No home countries through processes that did not country, processed for expedited removal or referred to require a removal order. an immigration judge for removal proceedings. CBP officers may transfer aliens issued a charging document • DHS removed approximately 438,000 aliens from the (e.g., Notice to Appear (NTA), Notice of Referral to an United States.2 The leading countries of origin for Immigration Judge) to ICE for detention and custody those removed were Mexico (72 percent), Guatemala determinations. Aliens who apply under the Visa Waiver (11 percent), Honduras (8.3 percent), and El Salvador Program (VWP) who are found to be inadmissible are (4.8 percent). refused admission without referral to an immigration • Expedited removal orders accounted for 44 percent, judge, per Section 217 of the Immigration and of all removals. Nationality Act (INA), unless the alien requests asylum. • Reinstatements of final orders accounted for 39 Apprehension Process percent, of all removals. Aliens who enter without inspection between ports of • ICE removed approximately 198,000 known criminal entry and are apprehended by U.S. Border Patrol (USBP) aliens from the United States.3 of CBP may be, as appropriate, removed, permitted to return to their country, or issued a NTA to commence In this report, years refer to fiscal years (October 1 to September 30). proceedings before the immigration court. Aliens issued a Includes removals, counted in the year the events occurred, by both ICE and CBP . charging document are either transferred to ICE for detenRemovals and returns are reported separately. Refers to persons removed who have a prior criminal conviction. tion and custody determinations pending a hearing or 1 2 3 Ofﬁce of Immigration Statistics POLICY DIRECTORATE Case: 14-50393, 02/07/2017, ID: 10304776, DktEntry: 43-2, Page 154 of 203 released on their own recognizance. Beginning in FY12, USBP implemented the Consequence Delivery System (CDS) across all sectors. CDS guides USBP agents through a process designed to uniquely evaluate each subject and identify the ideal consequences to deliver to impede and deter further illegal activity. CDS consequences can include administrative, criminal, or programmatic actions. Aliens unlawfully present in the United States and those lawfully present who are subject to removal may be identified and apprehended by ICE within the interior of the United States. The agency’s two primary operating components are Homeland Security Investigations (HSI) and Enforcement and Removal Operations (ERO). ICE may identify aliens in violation of their status for removal while they are incarcerated, during worksite enforcement operations, or through other means. Aliens apprehended by ICE are generally subject to the same consequences as aliens who are apprehended by USBP. Benefit Denial USCIS has authority to issue an NTA or otherwise refer an alien for removal proceedings upon determining that an alien is inadmissible or has violated immigration law pursuant to INA Sections 212 and 237. USCIS will also issue an NTA when required by statute or regulation,4 e.g., termination of conditional permanent resident status, denial of asylum application, termination of refugee status, or positive credible fear determination. BOX 1. Deﬁnitions of Immigration Enforcement Terms Administrative Removal: The removal of an alien not admitted for permanent residence, or of an alien admitted for permanent residence on a conditional basis pursuant to section 216 of the INA, under a DHS order based on the determination that the individual has been convicted of an aggravated felony (INA § 238(b)(1)). The alien may be removed without a hearing before an immigration judge. Alien: A person who is not a citizen or national of the United States. Deportable Alien: An alien inspected and admitted into the United States but who is subject to removal under INA § 237(a). Detention: The physical custody of an alien in order to hold him/her, pending a determination on whether the alien is to be removed from the United States or awaiting return transportation to his/her country of citizenship after a ﬁnal order of removal has been entered. Expedited Removal: The removal without a hearing before an immigration judge of an alien arriving in the United States who is inadmissible because the individual does not possess valid entry documents or is inadmissible for fraud or misrepresentation of material fact; or the removal of an alien who has not been admitted or paroled in the United States and who has not afﬁrmatively shown to the satisfaction of an immigration ofﬁcer, that the alien had been physically present in the United States for the immediately preceding 2-year period (INA § 235(b)(1)(A)). Inadmissible Alien: An alien who is ineligible to receive a visa and ineligible to be admitted to the United States, according to the provisions of INA § 212(a). ez anch , 2017 Following arrest or transfer of custody from CBP, ICE ERO makes S alta- ru of y 2 custody redeterminations, which may result in detention or erReinstatementarFinal Removal Orders: The removal of an alien b v. P on F reinstatement of a prior removal order, where the alien release on bond, orders of supervision, or orders of recognizance. SApro- d onthe e U An alien may be detained during the pendency of removal ive in departed the United States under an order of removal and illegally Cited 93 arch re-entered the United States (INA § 241(a)(5)). The alien may be ceedings, and, if an alien is ordered removed, the alien may be removed without a hearing before an immigration judge. detained for a certain period of time pending503 repatriation. o. 14 Removable Alien: An alien who is inadmissible or deportable N Removal Process Detention Process Removal proceedings include the administrative process that leads to the removal of an alien pursuant to Sections 237 or 212 of the INA. Unless eligible for relief, the most common dispositions for aliens found within the United States, are returns, expedited removals, reinstatements of final orders and removal obtained through removal proceedings. Return. Certain apprehended aliens who appear to be inadmissible or deportable may be offered the opportunity to voluntarily return to their home country in lieu of formal removal proceedings before an immigration judge.5 Generally, aliens waive their right to a hearing, remain in custody, and, if applicable, agree to depart the United States under supervision. Some aliens apprehended within the United States may agree to voluntarily depart and pay the expense of departing. Voluntary departure may be granted by an immigration 4 As authorized by Revised Guidance for the Referral of Cases and Issuance of Notices to Appear (NTAs) in Cases Involving Inadmissible and Removable Aliens, PM 602-0050, November 7, 2011. http://www.uscis.gov/sites/default/files/USCIS/Laws/Memoranda/Static_Files_Memoranda/ NTA%20PM%20%28Approved%20as%20final%2011-7-11%29.pdf 5 Examples include voluntary departure under INA § 240B, VWP returns under INA § 217(b), crewmembers under INA § 252(b) and stowaways under INA § 217(b). 2 (INA § 240(e)(2)). Removal: The compulsory and conﬁrmed movement of an inadmissible or deportable alien out of the United States based on an order of removal. An alien who is removed has administrative or criminal consequences placed on subsequent reentry. Return: The conﬁrmed movement of an inadmissible or deportable alien out of the United States not based on an order of removal. judge, during an immigration hearing or prior to an immigration hearing by certain DHS officials. Expedited Removal. DHS officers and agents may order the expedited removal of certain aliens who are inadmissible because they do not possess valid entry documents or are inadmissible for fraud or misrepresentation of material fact; or because the alien, who has not been admitted or paroled in the United State, has not affirmatively shown to the satisfaction of an immigration officer, that the alien had been physically present in the United States for the immediately preceding 2-year period. Aliens placed in expedited removal proceedings are generally not entitled to immigration proceedings before an immigration judge unless the alien is Case: 14-50393, 02/07/2017, ID: 10304776, DktEntry: 43-2, Page 155 of 203 seeking asylum or makes a claim to legal status in the United States. An expedited removal order issued by a DHS officer is equivalent to a removal order issued by an immigration judge. Reinstatement of Final Removal Orders. Section 241(a)(5) of the INA permits DHS to reinstate final removal orders, without further hearing or review, for aliens who were removed or departed voluntarily under an order of removal and who illegally re-entered the United States. Removal Proceedings. Aliens not immediately returned or processed for removal by a DHS officer, e.g. due to a fear of return or because the alien has applied for certain forms of adjustment of status, may be issued an NTA for an immigration hearing and may be transferred to ICE for a custody determination, which may result in detention or release on bond, orders of supervision, or orders of recognizance. Removal hearings before an immigration court may result in a variety of outcomes including an order of removal; a grant of voluntary departure at the alien’s expense (considered a “return”); a grant of certain forms of relief or protection from removal, which could include adjustment to lawful permanent resident status; or termination of proceedings. Decisions of immigration judges can be appealed to the Board of Immigration Appeals. The penalties associated with removal include not only the removal itself but also possible fines, imprisonment for up to ten years for those who fail to appear at hearings or who fail to depart, and a bar to future legal entry.6 The imposition and extent of these penalties depend upon the individual circumstances of the case. DATA7 Apprehension and inadmissibility data are collected in the Enforcement Integrated Database (EID) using Form I-213, Seized Asset and Case Tracking System (SEACATS), and EID Arrest Graphical User Interface for Law Enforcement (EAGLE). Data on individuals detained are collected through the ICE ENFORCE Alien Detention Module (EADM) and the ENFORCE Alien Removal ez anch , 2017 a-S eralt bruary 2 .P SA v d on Fe in U hive ited C arc Table 1. 393 Fiscal Years 2011 to 2013 0 Apprehensions by Program and Country of -5 Nationality: o. 14 (Countries ranked by 2013 apprehensions) N 7 6 The bar is permanent for aggravated felons and up to 20 years for certain other aliens. CBP data (apprehensions, inadmissible aliens, removals, and returns) are current as of November 2013. ICE ERO apprehension data are current as of October 2013. ICE HSI data are current as of October 2013. ICE removal and return data are current as of January 2014. USCIS NTA data current as of May 2014. 2013 Program and country of nationality 2012 Number Percent 2011 Number Percent Number Percent PROGRAM Total . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 662,483 100.0 671,327 100.0 678,606 100.0 CBP U.S. Border Patrol . . . . . . . . . . . . . . . . . . . . . . . 420,789 63.5 364,768 54.3 340,252 50.1 Southwest sectors (sub-total) . . . . . . . . . . . . . . . . 414,397 62.6 356,873 53.2 327,577 48.3 ICE Enforcement and Removal Operations . . . . . . . . . 229,698 34.7 290,622 43.3 322,093 47.5 ICE Homeland Security Investigations . . . . . . . . . . . . 11,996 1.8 15,937 2.4 16,261 2.4 COUNTRY OF NATIONALITY Total . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 662,483 100.0 671,327 100.0 678,606 100.0 Mexico . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 424,978 64.1 468,766 69.8 517,472 76.3 Guatemala . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 73,208 11.1 57,486 8.6 41,708 6.1 Honduras. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 64,157 9.7 50,771 7.6 31,189 4.6 El Salvador . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 51,226 7.7 38,976 5.8 27,652 4.1 Ecuador . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5,680 0.9 4,374 0.7 3,298 0.5 Dominican Republic . . . . . . . . . . . . . . . . . . . . . . . . . 3,893 0.6 4,506 0.7 4,433 0.7 Cuba . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2,809 0.4 4,121 0.6 4,801 0.7 Nicaragua . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2,712 0.4 2,532 0.4 2,278 0.3 Jamaica . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2,147 0.3 2,655 0.4 2,862 0.4 Haiti . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1,992 0.3 1,492 0.2 1,351 0.2 All other countries, including unknown . . . . . . . . . . . . 29,681 4.5 35,648 5.3 41,562 6.1 Source: U.S. Department of Homeland Security, Enforcement Integrated Database (EID); Seized Asset and Case Tracking System (SEACATS); EID Arrest Graphical User Interface for Law Enforcement (EAGLE); CBP U.S. Border Patrol data for 2013 are current as of November 2013, 2012 are current as of November 2012, 2011 are current as of December 2011; ICE Enforcement and Removal Operations data for 2013 are current as of October 2013, 2012 are current as of October 2012, 2011 are current as of January 2012; Homeland Security Investigations data for 2013 are current as of October 2013, 2012 are current as of October 2012, 2011 are current as of June 2012. 3 Case: 14-50393, 02/07/2017, ID: 10304776, DktEntry: 43-2, Page 156 of 203 Module (EARM). Data on USCIS NTAs are collected using the USCIS NTA Database. Data on individuals removed or returned are collected through both EARM and EID. The data on enforcement actions (e.g., inadmissible aliens, apprehensions, NTAs, and removals) relate to events. For example, an alien may be apprehended more than once, and each apprehension would count as a separate record. Removals and returns are reported separately and counted in the years the events occurred. Data appearing for a given year may change in subsequent years due to updating of the data series.8 TRENDS AND CHARACTERISTICS OF ENFORCEMENT ACTIONS Apprehensions DHS made 662,483 apprehensions in 2013 (see Table 1). The U.S. Border Patrol was responsible for 420,789 or 64 percent (see Figure 1) of all apprehensions. Ninety-eight percent of USBP apprehensions occurred along the Southwest border. ICE ERO made 229,698 administrative arrests and ICE HSI made 11,996 administrative arrests.9 Table 2. Apprehensions by U.S. Border Patrol Sector: Fiscal Years 2011 to 2013 (Sectors ranked by 2013 apprehensions) 2013 U.S. Border Patrol Sector Total . . . . . . . . . . . . . . . . . Rio Grande Valley, TX . . . . . . . Tucson, AZ . . . . . . . . . . . . . . . Laredo, TX . . . . . . . . . . . . . . . San Diego, CA . . . . . . . . . . . . Del Rio, TX . . . . . . . . . . . . . . . EL Centro, CA . . . . . . . . . . . . . EL Paso, TX . . . . . . . . . . . . . . Yuma, AZ . . . . . . . . . . . . . . . . Big Bend, TX* . . . . . . . . . . . . Miami, FL. . . . . . . . . . . . . . . . All other sectors . . . . . . . . . . . 2012 Percent Number Percent Number Percent 420,789 154,453 120,939 50,749 27,496 23,510 16,306 11,154 6,106 3,684 1,738 4,654 100.0 36.7 28.7 12.1 6.5 5.6 3.9 2.7 1.5 0.9 0.4 1.1 364,768 97,762 120,000 44,872 28,461 21,720 23,916 9,678 6,500 3,964 2,509 5,386 100.0 26.8 32.9 12.3 7.8 6.0 6.6 2.7 1.8 1.1 0.7 1.5 340,252 59,243 123,285 36,053 42,447 16,144 30,191 10,345 5,833 4,036 4,401 8,274 100.0 17.4 36.2 10.6 12.5 4.7 8.9 3.0 1.7 1.2 1.3 2.4 * Formerly known as Marfa, TX. Source: U.S. Department of Homeland Security, Customs and Border Protection (CBP) U.S Border Patrol (USBP), Enforcement Integrated Database (EID), November 2013. Table 3. Aliens Determined Inadmissible by Mode of Travel, Country of Citizenship, and Field Ofﬁce: Fiscal Years 2011 to 2013 (Ranked by 2013 inadmissible aliens) 2013 Characteristic 2012 Nationality of Aliens Apprehended by Border Patrol. Non-Mexican aliens accounted for 36 percent of all USBP apprehensions in 2013, up from 27 percent in 2012. USBP apprehensions of non-Mexican aliens increased 182 percent from 2011 to 2013. 8 9 4 Arrests under INA § 287(g) are included in ICE ERO apprehension data for 2011 to 2013. MODE OF TRAVEL Total . . . . . . . . . . . . . . . . . Land . . . . . . . . . . . . . . . . . . . Sea . . . . . . . . . . . . . . . . . . . . Air . . . . . . . . . . . . . . . . . . . . . An administrative arrest refers to the arrest of an alien who is charged with an immigration violation. Administrative arrests are included in the DHS apprehension totals. India . . . . . . . . . . . . . . . . . . . Ukraine . . . . . . . . . . . . . . . . . Russia. . . . . . . . . . . . . . . . . . Spain . . . . . . . . . . . . . . . . . . El Salvador . . . . . . . . . . . . . . All other countries, including unknown . . . . . . . . . . . . . . . FIELD OFFICE Total . . . . . . . . . . . . . . . . . Laredo, TX . . . . . . . . . . . . . . . San Diego, CA . . . . . . . . . . . . New Orleans, LA . . . . . . . . . . . San Francisco, CA . . . . . . . . . Buffalo, NY . . . . . . . . . . . . . . Houston, TX . . . . . . . . . . . . . . Tucson, AZ . . . . . . . . . . . . . . . Pre-Clearance*. . . . . . . . . . . . Seattle, WA . . . . . . . . . . . . . . Miami, FL. . . . . . . . . . . . . . . . All other , including unknown . . . . . . . . . . . . . . . *Refers to 2011 Number Percent Number Percent Number Percent 204,108 103,480 51,568 49,060 100.0 50.7 25.3 24.0 193,606 100.0 51.8 27.1 21.1 212,234 107,205 66,227 38,802 100.0 50.5 31.2 18.3 212,234 67,410 32,141 25,197 7,759 16,931 5,983 4,359 3,905 988 853 100.0 31.8 15.1 11.9 3.7 8.0 2.8 2.1 1.8 0.5 0.4 ez 100,341 anch , 52,509 7 S 201 alta- ruary 2 40,756 Per COUNTRY A. .v... . . . . on Feb 100.0 193,606 U.. . Total . . . . S . . 204,108 Nationality of All Apprehended Aliens. In 2013, ited in. . . . . . . . hiv.e.d. Mexico 56,267 27.6 58,658 r.c .. .. .. .. . .. . .. . 29,387 C Canada .3. a. . 14.4 30,731 Mexican nationals accounted for 64 per9 . . .. .. . . . . . . . . . . . . 23,389 03 11.5 22,486 cent of all aliens apprehended by 4-5Philippines 1 . or Cuba . . . . . . . . . . . . . . . . . . . 17,679 8.7 12,253 o Immigration and Customs Enforcement N China, People’s Republic . . . . . 13,552 6.6 12,888 the U.S. Border Patrol, down from 70 percent in 2012. The next leading countries were Guatemala (11 percent), Honduras (9.7 percent), and El Salvador (7.7 percent). These four countries accounted for 93 percent of all apprehensions. 2011 Number 11,815 2,882 2,618 2,423 2,194 5.8 1.4 1.3 1.2 1.1 6,907 2,928 2,946 1,717 1,028 100.0 30.3 15.9 11.6 6.3 6.7 3.6 1.5 1.5 0.9 0.5 41,902 20.5 41,064 21.2 46,708 22.0 204,108 31,781 25,632 21,011 14,939 13,425 10,909 9,991 9,695 9,343 8,684 100.0 15.6 12.6 10.3 7.3 6.6 5.3 4.9 4.7 4.6 4.3 193,606 28,005 26,889 20,204 9,832 14,050 12,706 7,612 8,559 10,529 7,593 100.0 14.5 13.9 10.4 5.1 7.3 6.6 3.9 4.4 5.4 3.9 212,234 25,790 33,719 20,855 6,954 15,712 19,528 7,951 8,586 10,650 6,896 100.0 12.2 15.9 9.8 3.3 7.4 9.2 3.7 4.0 5.0 3.2 48,698 23.9 47,627 24.6 55,593 26.2 abroad. Source: U.S. Department of Homeland Security, Customs and Border Protection, Office of Field Operations. Enforcement Integrated Database (EID), October 2013. Case: 14-50393, 02/07/2017, ID: 10304776, DktEntry: 43-2, Page 157 of 203 Table 4. Notices to Appear Issued by Homeland Security Ofﬁce: Fiscal Years 2011 to 2013 (Ranked by 2013 notices to appear) 2013 Homeland Security ofﬁce 2012 2011 Number Number Percent Number Percent 224,185 101,571 56,896 42,078 23,640 Total . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ICE Enforcement and Removal Operations . . . . . . . . . United States Citizenship and Immigration Services . . CBP U.S. Border Patrol . . . . . . . . . . . . . . . . . . . . . . . CBP Office of Field Operations . . . . . . . . . . . . . . . . . . Percent 100.0 45.3 25.4 18.8 10.5 235,687 140,707 41,778 31,506 21,696 100.0 59.7 17.7 13.4 9.2 250,127 156,208 44,638 31,739 17,542 100.0 62.5 17.8 12.7 7.0 Source: U.S. Department of Homeland Security, Customs and Border Protection, U.S. Border Patrol, November 2013; ICE Enforcement and Removal Operations, October 2013; tions, October 2013, United States Citizenship and Immigration Services, NTA Database, May 2014. Southwest Border Apprehensions. Apprehensions by the USBP along the Southwest border increased 16 percent from 356,873 in 2012 to 414,397 in 2013. Rio Grande Valley was the leading sector for apprehensions (154,453) and displayed the highest increase from 2012 to 2013 (56,691 or 58 percent) (see Table 2). The next leading sectors in 2013 were Tucson (120,939) Laredo (50,749), San Diego (27,496), and Del Rio (23,510). Inadmissible Aliens Table 5. Initial Admissions to ICE Detention Facilities by Country of Nationality: Fiscal Years 2011 to 2013 (Ranked by 2013 detention admissions) 2013 Country of nationality Total . . . . . . . . . . . . . . . . . Mexico . . . . . . . . . . . . . . . . . Guatemala . . . . . . . . . . . . . . . Honduras. . . . . . . . . . . . . . . . El Salvador . . . . . . . . . . . . . . Ecuador . . . . . . . . . . . . . . . . . India . . . . . . . . . . . . . . . . . . . Dominican Republic . . . . . . . . Haiti . . . . . . . . . . . . . . . . . . . Nicaragua . . . . . . . . . . . . . . . Jamaica . . . . . . . . . . . . . . . . . All other countries, including unknown . . . . . . . . . . . . . . . 2012 2011 Number Percent Number Percent Number Percent 440,557 244,585 59,189 50,609 40,261 4,716 4,057 3,537 2,382 2,323 1,933 100.0 55.5 13.4 11.5 9.1 1.1 0.9 0.8 0.5 0.5 0.4 477,523 307,523 50,723 40,469 31,286 3,856 1,522 4,265 1,609 2,131 2,365 100.0 64.4 10.6 8.5 6.6 0.8 0.3 0.9 0.3 0.4 0.5 429,247 288,581 38,450 26,416 23,792 2,957 3,438 4,201 1,775 2,015 2,597 100.0 67.2 9.0 6.2 5.5 0.7 0.8 1.0 0.4 0.5 0.6 35,025 8.2 CBP Office of Field Operations (OFO) ez determined 204,108 aliens arriving at a anch , 2017 a-S port of entry were inadmissible in 2013, y 26,965 eralt bruar6.1 2 31,774 up 5.4 percent from 193,606 in 2012 (See v. P n and e Interior Repatriation Program facilities. 6.7 Note: Excludes OfficeA of Refugee Resettlement F Mexican Table 3). Fifty-one percent of all inadmissiin US hived o Source: U.S. Department of Homeland Security, ENFORCE Alien Detention Module (EADM), October 2013. ble aliens in 2013 were processed at land ited rc C ports, followed by 25 percent at sea ports, 9 a 36. 3 50 and 24 percent at airports. . 14- Table No Nationality of Inadmissible Aliens. Mexican nationals accounted for 28 percent of inadmissible aliens in 2013, followed by Canada (14 percent) and the Philippines (12 percent). Other leading countries included Cuba, China, India, Ukraine, Russia, Spain and El Salvador. The greatest increases from 2012 to 2013 were for nationals of El Salvador (113 percent) and India (71 percent) (see Table 3). Notices to Appear DHS issued 224,185 NTAs in 2013, down from 235,687 in 2012 (see Table 4). ICE ERO issued 101,571 or 45 percent of all NTAs in 2013, down from 140,707 or 60 percent in 2012. NTAs issued by USCIS accounted for 25 percent of all NTAs in 2013, up from 18 percent in 2012, partly due to an increase in the number of CBP Office of Field Opera- Aliens Removed by Component: Fiscal Years 2011 to 2013 2013 Component Total . . . . . . . . . . . . . . . . . ICE . . . . . . . . . . . . . . . . . . . . CBP U.S. Border Patrol . . . . . . CBP Office of Field Operations . . 2012 2011 Number Percent Number Percent Number Percent 438,421 330,651 86,253 21,517 100.0 75.4 19.7 4.9 418,397 345,628 51,012 21,757 100.0 82.6 12.2 5.2 387,134 314,453 42,952 29,729 100.0 81.2 11.1 7.7 Note: OIS and ICE totals may differ. See footnote 2 on page 1. Source: U.S. Department of Homeland Security, ENFORCE Alien Removal Module (EARM), January 2014, Enforcement Integrated Database (EID), November 2013. Table 7. Trends in Total Removals, Expedited Removals, and Reinstatements of Final Removal Orders: Fiscal Years 2011 to 2013 2013 Removals Total . . . . . . . . . . . . . . . . . Expedited Removals . . . . . . . . Reinstatements . . . . . . . . . . . All other removals . . . . . . . . . . 2012 2011 Number Percent Number Percent Number Percent 438,421 193,032 170,247 75,142 100.0 44.0 38.8 17.1 418,397 163,308 146,044 109,045 100.0 39.0 34.9 26.1 387,134 122,236 124,784 140,114 100.0 31.6 32.2 36.2 Source: U.S. Department of Homeland Security, ENFORCE Alien Removal Module (EARM), January 2014, Enforcement Integrated Database (EID), November 2013. 5 Case: 14-50393, 02/07/2017, ID: 10304776, DktEntry: 43-2, Page 158 of 203 “Credible Fear” issued NTAs. USBP issued NTAs accounted for 19 percent of all NTAs in 2013, up from 14 percent in 2012. OFO issued 11 percent of NTAs in 2013 and 9 percent in 2012. Detentions ICE detained 440,557 aliens during 2013, a decrease of 8 percent from 2012 (See Table 5). Mexican nationals accounted for 56 percent of total detainees in 2013, down from 64 percent in 2012. The next leading countries in 2013 were Guatemala (13 percent), Honduras (12 percent) and El Salvador (9 percent). These four countries accounted for 90 percent of all detainees in 2013. Removals and Returns Total Removals. The number of removals increased from 418,397 in 2012 to an all-time high of 438,421 in 2013 (see Tables 6, 7 and Figure 2). ICE accounted for 75 percent of all removals in 2013, down from 83 percent in 2012. USBP accounted for 20 percent of all removals in 2013, up from 12 percent in 2012. OFO performed 4.9 percent of removals in 2013 and 5.2 percent in 2012 (see table 6). Mexican nationals accounted for 72 percent of all aliens removed in 2013. The next leading countries were Guatemala (11 percent), Honduras (8.3 percent) and El Salvador (4.7 percent). These four countries accounted for 96 percent of all removals in 2012 (see Table 8). Expedited Removals. Expedited removals represented 44 percent of all removals in 2013, up from 39 percent in 2012 but down from an all-time high of 49 percent in 1999. Aliens from Mexico accounted for 75 percent of expedited removals in 2013. The next leading countries were Guatemala, Honduras, and El Salvador. Nationals from these four countries accounted for 98 percent of all expedited removals in 2013. ez anch , 2017 a-S eralt bruary 2 .P SA v d on Fe in U hive ited C arc 393 -50 o. 14 N Table 8. Aliens Removed by Criminal Status and Country of Nationality: Fiscal Years 2011 to 2013 (Ranked by 2013 aliens removed) 2013 Country of nationality Total . . . . . . . . . . . . . . . . . . . . . . . Mexico . . . . . . . . . . . . . . . . . . . . . . . Guatemala . . . . . . . . . . . . . . . . . . . . . Honduras. . . . . . . . . . . . . . . . . . . . . . El Salvador . . . . . . . . . . . . . . . . . . . . Dominican Republic . . . . . . . . . . . . . . Ecuador . . . . . . . . . . . . . . . . . . . . . . . Colombia . . . . . . . . . . . . . . . . . . . . . . Brazil. . . . . . . . . . . . . . . . . . . . . . . . . Nicaragua . . . . . . . . . . . . . . . . . . . . . Jamaica . . . . . . . . . . . . . . . . . . . . . . . All other countries, including unknown . . 2012 Total Criminal* NonCriminal 438,421 314,904 46,866 36,526 20,862 2,278 1,491 1,421 1,411 1,337 1,101 10,224 198,394 146,298 15,365 16,609 9,440 1,805 580 956 366 691 993 5,291 240,027 168,606 31,501 19,917 11,422 473 911 465 1,045 646 108 4,933 Total 418,397 303,745 38,900 31,740 18,993 2,868 1,763 1,591 2,397 1,400 1,319 13,681 2011 Criminal* NonCriminal Total Criminal* NonCriminal 200,143 151,444 13,494 13,815 8,674 2,182 706 1,055 424 731 1,150 6,468 218,254 152,301 25,406 17,925 10,319 686 1,057 536 1,973 669 169 7,213 387,134 288,078 30,343 22,027 17,381 2,893 1,716 1,899 3,350 1,502 1,474 16,471 188,964 145,133 11,718 10,825 8,507 2,142 704 1,048 550 696 1,225 6,416 198,170 142,945 18,625 11,202 8,874 751 1,012 851 2,800 806 249 10,055 * Refers to persons removed who have a prior criminal conviction. Note: Excludes criminals removed by Customs and Border Protection (CBP). CBP EID does not identify if aliens removed were criminals. Source: U.S. Department of Homeland Security, ENFORCE Alien Removal Module (EARM), January 2014, Enforcement Integrated Database (EID), November 2013. 6 Case: 14-50393, 02/07/2017, ID: 10304776, DktEntry: 43-2, Page 159 of 203 Reinstatements. Reinstatements of previous removal orders accounted for 39 percent of all removals in 2013. The number of removals based on a reinstatement of final orders increased every year between 2005 and 2013. In 2013, aliens from Mexico accounted for 75 percent of all reinstatements. Other leading countries included Guatemala, Honduras, and El Salvador. These four countries accounted for 99 percent of all reinstatements in 2013. Returns. In 2013, 178,371 aliens were returned to their home countries without an order of removal, a decline of 23 percent from 2012 and the lowest number since 1967 (see Table 10). 2013 was the ninth consecutive year in which returns declined. Fifty-nine percent of returns were performed by OFO in 2013, up from 48 percent in 2012. USBP accounted for 22 percent of all returns in 2013, down from 25 percent in 2012. From 2011 to 2013, returns by USBP decreased 66 percent. ICE accounted for the remaining 20 percent of returns in 2013, down from 27 percent in 2012. Mexican nationals accounted for 49 percent of all returns in 2013, down from 57 percent in 2012. The next leading countries of nationality for returns in 2013 were Canada (13 percent), the Philippines (12 percent) and China (6.6 percent) (see Table 11). Criminal Activity. Approximately 198,000 aliens removed in 2013 had a prior criminal conviction.10 The most common categories of crime were immigration-related offenses, dangerous drugs, criminal traffic offenses, and assault. Immigration-related offenses increased 31 percent from 2012 to 2013 and 65 percent between 2011 and 2013. Dangerous drugs and criminal traffic offenses decreased 28 and 35 percent respectively from 2012 to 2013. These four leading categories accounted for 72 percent of all criminal alien removals in 2013 (see Table 9). 10 FOR MORE INFORMATION For more information about immigration and immigration statistics, visit the Office of Immigration Statistics Website at www. dhs.gov/immigration-statistics. Excludes criminals removed by CBP; CBP EID data do not identify if aliens removed were criminals. Table 9. Criminal Aliens Removed by Crime Category: Fiscal Years 2011 to 2013 (Ranked by 2013 criminal aliens removed) 2013 Crime Category 2012 2011 Number Total . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Immigration* . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Dangerous Drugs** . . . . . . . . . . . . . . . . . . . . . . . . . Criminal Traffic Offenses† . . . . . . . . . . . . . . . . . . . . . Assault . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Burglary . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Weapon Offenses . . . . . . . . . . . . . . . . . . . . . . . . . . . Larceny . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Fraudulent Activities . . . . . . . . . . . . . . . . . . . . . . . . . Sexual Assault . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Forgery . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . All other categories, including unknown . . . . . . . . . . . Percent Number Percent Number Percent 198,394 62,194 30,603 29,844 20,181 5,505 5,296 5,290 5,179 3,166 3,032 28,104 100.0 31.3 15.4 15.0 10.2 2.8 2.7 2.7 2.6 1.6 1.5 14.2 200,143 47,616 42,679 46,162 13,045 3,569 2,513 5,428 3,879 3,353 2,430 29,469 100.0 23.8 21.3 23.1 6.5 1.8 1.3 2.7 1.9 1.7 1.2 14.7 188,964 37,606 43,378 43,154 12,783 3,808 2,730 5,728 4,232 3,576 2,858 29,111 100.0 19.9 23.0 22.8 6.8 2.0 1.4 3.0 2.2 1.9 1.5 15.4 ez anch , 2017 a-S eralt bruary 2 .P SA v d on Fe in U hive ited C arc 393 -50 o. 14 N * Including entry and reentry, false claims to citizenship, and alien smuggling. ** Including the manufacturing, distribution, sale, and possession of illegal drugs. † Including hit and run and driving under the influence. Notes: Data refers to persons removed who have a prior criminal conviction. Excludes criminals removed by Customs and Border Protection (CBP). CBP EID does not identify if aliens removed were criminals. Source: U.S. Department of Homeland Security, ENFORCE Alien Removal Module (EARM), January 2014. Table 10. Aliens Returned by Component: Fiscal Years 2011 to 2013 2013 Component Total . . . . . . . . . . . . . . . . . CBP Office of Field Operations. . CBP U.S. Border Patrol . . . . . . ICE . . . . . . . . . . . . . . . . . . . . 2012 2011 Number Percent Number Percent Number Percent 178,371 104,300 38,779 35,292 100.0 58.5 21.7 19.8 230,386 109,468 58,197 62,721 100.0 47.5 25.3 27.2 322,124 130,996 113,886 77,242 100.0 40.7 35.4 24.0 Note: OIS and ICE totals may differ. See footnote 2 on page 1. Source: U.S. Department of Homeland Security, ENFORCE Alien Removal Module (EARM), January 2014, Enforcement Integrated Database (EID), November 2013. 7 Case: 14-50393, 02/07/2017, ID: 10304776, DktEntry: 43-2, Page 160 of 203 Table 11. Aliens Returned by Country of Nationality: Fiscal Years 2011 to 2013 (Ranked by 2013 aliens returned) 2013 Country of nationality Total . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Mexico . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Canada . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Philippines . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . China, People’s Republic . . . . . . . . . . . . . . . . . . . . . . Ukraine . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . India . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Russia. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Burma . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Guatemala . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Korea, South . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . All other countries, including unknown . . . . . . . . . . . . 2012 2011 Number Percent Number Percent Number Percent 178,371 88,042 23,963 21,523 11,684 2,604 2,462 1,991 1,920 1,347 1,259 21,576 100.0 49.4 13.4 12.1 6.6 1.5 1.4 1.1 1.1 0.8 0.7 12.1 230,386 131,983 27,039 20,903 11,780 2,589 3,273 2,464 2,337 2,332 1,191 24,495 100.0 57.3 11.7 9.1 5.1 1.1 1.4 1.1 1.0 1.0 0.5 10.6 322,124 205,158 28,274 23,150 16,234 4,111 4,136 3,512 2,582 3,026 1,619 30,322 100.0 63.7 8.8 7.2 5.0 1.3 1.3 1.1 0.8 0.9 0.5 9.4 Note: Returns are the confirmed movement of an inadmissible or deportable alien out of the United States not based on an order of removal. Source: U.S. Department of Homeland Security, ENFORCE Alien Removal Module (EARM), January 2014, Enforcement Integrated Database (EID), November 2013. APPENDIX ENFORCEMENT PROGRAM OFFICES U.S. Customs and Border Protection (CBP) Office of Field Operations CBP’s Office of Field Operations (OFO) is responsible for securing the U.S. border at ports of entry while facilitating lawful trade and travel. CBP officers determine the admissibility of aliens who are applying for admission to the United States at designated ports of entry. authorities to investigate immigration and customs violations such as: human rights violations; narcotics; weapons smuggling and the smuggling of other types of contraband; financial crimes; cyber crimes; human trafficking; child pornography; intellectual property violations; commercial fraud; export violations; and identity and benefit fraud. HSI special agents also conduct national security investigations aimed at protecting critical infrastructure vulnerable z sabotage, attack, or exploitation. In heto 017 addition -Sanc HSI criminal investigations, HSI oversees to domestic ,2 a ICE’s t ary 2 eralinternational affairs operations and intelligence functions. .P bru SA v dEnforcement and Removal Operations n Fe o U U.S. Border Patrol d in to chiv ite(USBP) isarsecure e Officers and agents of ICE Enforcement and Removal Operations The primary mission of the U.S. Border C Patrol 3 (ERO) serve as the primary enforcement arm within ICE for the approximately 7,000 miles of international 039border with 4-5 landborder of the identification, apprehension, and removal of certain aliens from . 1 coastal Canada and Mexico and 2,600 miles of No the United States. ERO transports removable aliens, manages aliens United States. Its major objectives are to deter, detect, and interdict the illegal entry of aliens, terrorists, terrorist weapons, and other contraband into the United States. USBP operations are divided into geographic regions referred to as sectors. in custody or subject in conditions of release, and removes individuals ordered to be removed from the United States. U.S. Immigration and Customs Enforcement (ICE) U.S. Citizenship and Immigration Services (USCIS) oversees lawful immigration to the United States and processes applications for immigration benefits within the United States. USCIS provides accurate and useful information to its customers, granting immigration and citizenship benefits, promoting an awareness and understanding of citizenship, and ensuring the integrity of the immigration system. Homeland Security Investigations The U.S. Immigration and Customs Enforcement (ICE) Homeland Security Investigations (HSI) Directorate is a critical asset in the ICE mission, responsible for disrupting and dismantling transnational criminal threats facing the United States. HSI uses its legal 8 U.S. Citizenship and Immigration Services (USCIS) Case: 14-50393, 02/07/2017, ID: 10304776, DktEntry: 43-2, Page 161 of 203 STUDY ON ASYLUM SEEKERS IN EXPEDITED REMOVAL As Authorized by Section 605 of the International Religious Freedom Act of 1998 EVALUATION OF CREDIBLE FEAR REFERRAL IN EXPEDITED REMOVAL AT PORTS OF ENTRY IN THE UNITED STATES ez anch , 2017 a-S eralt bruary 2 .P SA v d n Fe FEBRUARYo2005 in U hive ited C arc 393 -50 o. 14 N Allen Keller, M.D.1,2, Andrew Rasmussen, Ph.D.1,2, Kim Reeves1,2, & Barry Rosenfeld, Ph.D.2,3 1 2 3 Bellevue/NYU Program for Survivors of Torture, New York, NY New York University School of Medicine, New York, NY Fordham University Department of Psychology, Bronx, NY 1 Case: 14-50393, 02/07/2017, ID: 10304776, DktEntry: 43-2, Page 162 of 203 TABLE OF CONTENTS Overview................................................................................................................................3 Background ............................................................................................................................4 I. Study Methodology ........................................................................................................5 Participants.................................................................................................................8 Basis for Secondary Inspection and Case Outcome ............................................9 Use of Interpreters and Bilingual Officers...........................................................10 Representativeness of Study Samples..................................................................11 II. Use and Adherence to the I-867 Format ........................................................................13 Relation to Credible Fear Referrals ...........................................................................17 Confirming Statements Made in Secondary Inspection Interviews...........................18 III. Expressing Fear and Referral.........................................................................................20 Officers Encouraging Aliens to Retract their Fear Claims ........................................23 IV. Understanding the Result of Secondary Inspection Interviews ....................................25 V. Officers’ Behavior During Secondary Inspection Interviews .......................................26 ez 17 anch ta-S ary 2, 20 ral VI. Discussion of Findings ..................................................................................................28 v. Pe n Febru A Study Limitations.......................................................................................................31 in US hived o Conclusion .................................................................................................................33 Cited 93 arc 503 References Cited ....................................................................................................................35 . 14No Appendices.............................................................................................................................36 Appendix A: Demographic Characteristics of Samples ............................................36 Appendix B: Participant Cases Versus Non-participant Cases..................................37 Appendix C: Data Analyses Excluding San Ysidro ..................................................40 Appendix D: Aliens Who Expressed a Fear and Were Not Referred ………………43 2 Case: 14-50393, 02/07/2017, ID: 10304776, DktEntry: 43-2, Page 163 of 203 OVERVIEW Between May and July of 2004, the Bellevue/NYU School of Medicine Program for Survivors of Torture conducted a study of Credible Fear referral in the Expedited Removal process. Section 605 of the International Religious Freedom Act of 1998 authorized the United States Commission on International Religious Freedom (USCIRF) to appoint experts to study the treatment of asylum seekers subject to Expedited Removal. Pursuant to this authority, the Commission appointed Dr. Allen Keller as the “lead” expert with regard to monitoring ports of entry. Under Dr. Keller’s supervision, and employing a methodology developed by the authors of this report in consultation with the other experts appointed by the Commission, two dozen trained research assistants observed more than 400 cases over several months in seven ports of entry (airports and border crossings) in the continental United States. The study integrated data from observations of Secondary Inspection interviews, independent interviews with aliens conducted by our research staff, and a review of official records from these interviews (A-files). A draft of this report was reviewed by Customs and Border Protection (CBP) administrators and port directors, and their comments were used in making revisions. Our findings suggest that when procedures are followed, appropriate referrals are more likely to be made. However, there was frequent failure on the part of CBP officers to provide required information to aliens during the Secondary Inspection interview and occasional failures to refer eligible aliens for Credible Fear interviews when they expressed a fear of returning to hez 017 their home countries. In addition, researchers noted a numberaninconsistencies between their of c ,2 a-S observations and the official records prepared by the alt ay2 er investigating rofficers (A-files). Finally, on a ru .P handful of occasions, researchers observed overt attempts ebCBP officers to coerce aliens to SA v d on F by in U applications for admission. retract their fear claim and withdraw theirchive ited C ar 393 -50 The results of this study shed light on the first three of the four questions posed to the o. 14 N Experts by the Congress in Section 605 of IRFA. Those questions are, whether immigration officers exercising authority pursuant to the Expedited Removal provisions (Section 235(b)) of the Immigration and Nationality Act are, with respect to aliens who may be eligible for asylum, (1) improperly encouraging such aliens to withdraw their applications for admission; (2) incorrectly failing to refer such aliens for an interview by an asylum officer for a determination of whether they have a credible fear of persecution; (3) incorrectly removing such aliens to a country where they may be persecuted; or (4) are detaining such aliens improperly or under inappropriate conditions. 3 Case: 14-50393, 02/07/2017, ID: 10304776, DktEntry: 43-2, Page 164 of 203 BACKGROUND In 1996, the United States Congress passed the Illegal Immigration Reform and Immigration Responsibility Act. One of the results of this law was the creation of the Expedited Removal process for aliens entering the country by fraudulent means, misrepresentation, or without proper travel documents. The Expedited Removal process, which was implemented in April of 1997, was intended to expeditiously identify and remove improperly documented aliens at ports of entry but, at the same time, ensure that bona fide asylum seekers would have access to an asylum hearing (GAO, 2000). All aliens entering the U.S. without proper travel documents or under fraud or misrepresentation are subject to immediate return (Expedited Removal) and are subsequently barred from entering the U.S. for a minimum of five years. However, if at the port of entry (i.e., during the Secondary Inspection interview) the alien states that he/she wishes to seek asylum or expresses fear of returning to the country he or she left, then the person is entitled to further consideration to determine the validity of his or her claim. This process begins with a referral for a Credible Fear interview with an asylum officer, who is charged with assessing the legitimacy of the alien’s claimed fear. This initial screening process at ports of entry has been the subject of debate among legal scholars and human rights activists. One of the primary concerns raised by critics of the Expedited Removal process is the possibility that individuals with a genuine asylum claim may not be identified by the screening procedures and will be erroneously returned to their native country, possibly facing further ez danger or even death (U.N. High Commissioner for Refugees, 2003). Human17 anch , 20 rights a-S organizations have provided anecdotal reports of individuals fearing persecution who were eralt bruary 2 .P removed at the time of entry into the U.S.A v 2004; Lawyers Committee for Human Rights, S (ABA, d on Fe in U hi e 2000), and several lawsuits have been broughtvalleging mistreatment at ports of entry (Wang, ited rc personal communication, C 2004). The General Accounting Office (GAO) reviewed 365 case July 393 a 50 files randomly selected.from-47,791 fiscal year 1999 case files of aliens who attempted entry at o 14 and Miami airports, and San Ysidro border station and were Los Angeles, John N Kennedy, F. charged under the Expedited Removal provisions (GAO, 2000). Although this study showed that inspectors at these ports generally complied with established procedures, the reliance on archival data (i.e., official records or A-files) presupposes that official records provide a reliable account of the actual procedures, behaviors and interactions that occurred. The present study was designed to overcome some of the limitations of GAO’s methodology by integrating observational data and independent interviews in order to analyze the practices of Department of Homeland Security (DHS), Customs and Border Protection (CBP) officers at airport and land port border crossings across the U.S. This represents the first systematic study of the Expedited Removal process using direct observations of CBP officers and aliens during Secondary Inspection interviews and comparing these data with the official records generated from these interviews. The goals of this study were to assess the extent to which existing procedures enabled the identification of aliens with a credible fear of returning to their home country, to assess potential obstacles to accurate identification, and to assess the accuracy of data contained in the official records of these interviews. CBP administrators and port directors were consulted in the implementation of the study (e.g., optimal hours for collecting data) and, after reviewing a draft of the report, provided feedback. 4 Case: 14-50393, 02/07/2017, ID: 10304776, DktEntry: 43-2, Page 165 of 203 I. STUDY METHODOLOGY Data were collected from seven sites across the country: Atlanta Hartsfield International Airport, Houston International Airport, John F. Kennedy International Airport (JFK), Los Angeles International Airport, Miami International Airport, Newark Liberty International Airport, and the San Ysidro Border Station. These sites were selected because of both the high volume of Secondary Inspections conducted and to obtain a representative cross-section of aliens entering the U.S. Across these sites, four sources of data were collected, some of which were integrated for subsequent analysis and others that were analyzed separately. Data collection involved a) observation of Secondary Inspection interviews conducted by CBP officers at several ports across the U.S. (JFK, Los Angeles, Miami, Newark, and San Ysidro), b) observation of videotaped Secondary Inspection interviews (Atlanta and Houston), c) interviews with aliens following a completed Secondary Inspection interview but prior to ultimate disposition (at JFK, Los Angeles, Miami, Newark, and San Ysidro), and d) review of official documents generated by CBP officials for all aliens who were interviewed or observed at the above-named locations (all sites). The decision to use live observation versus videotape was based on the availability of videotaped interviews at the sites as well as the amount and type of access provided to research staff.1 When videotaped observations were reviewed, we provided extra videotapes to the ports of entry in order to permit retention of those videotapes that had been coded in case further review was necessary.2 Prior to initiating data collection, the observational rating scale developed for this study was pilot-tested using videotaped Secondary z heInspection interviews 17 conducted at Houston International Airport. Because study Sanc investigators were prohibited from atcollectedary 2, 20 the CBP officers interfering with the tasks of CBP officers, no data eral P were ru directly from A v. o or decision-making). (i.e., we did not interview officers about their opinionn Feb US in ed ited rchiv research project, 26 research assistants were C 3a In order to complete this large, multi-site 5039 Investigators (Drs. Keller and Rosenfeld), Project recruited and trained by the Principal 14No. Coordinator (Dr. Rasmussen), and Site Supervisor (Ms. Reeves). Research assistants were recruited from local universities and graduate schools, and participated in an initial two-day orientation and training regarding immigration policies, study goals, past research findings, and the instruments and design involved in the current investigation. In addition, on-site supervision was provided on a regular basis by supervisory staff (Dr. Rasmussen and Ms. Reeves) in order to supplement this initial training and address general and site-specific research issues that arose during the course of the study. Efforts were made to recruit researchers that had experience with social and policy research, and were fluent in languages relevant to the particular ports of entry. In addition to English, the languages spoken by research staff included Spanish, French, Mandarin, Haitian Creole, Farsi, Serbo-Croatian, and German. When research interviews required fluency in a language that was not spoken by the available study personnel, telephonic interpreters were used. Study design logistics are presented in Table 1.1.3 1 We requested permission to videotape all interviews at each site. Unfortunately, approval was given by DHS after data collection had already been completed at most sites. 2 Standard procedure at both Atlanta and Houston was to retain videotapes for 90 days in case a need for review arose (although review reported to be extremely rare). All tapes were re-used after this 90 day period. 3 Because this study presents data that concern individuals who may be in danger if they are identified or have been returned to their country of origin, data are presented with as little identifying information as possible. 5 Case: 14-50393, 02/07/2017, ID: 10304776, DktEntry: 43-2, Page 166 of 203 Table 1.1: Study Design Study Site Atlanta Int’l Airport Data Video Obs. Houston Int’l Airport Video Obs. Interview JFK Int’l Airport (JFK) Direct Obs. Interview Direct Obs. Interview Direct Obs. Interview Direct Obs. Interview Direct Obs. Interview Los Angeles Int’l Airport Miami Int’l Airport Newark Int’l Airport San Ysidro Border Station Study Period (# Weeks) All videotaped interviews conducted from May 30 to June 7, 2004 were reviewed A random subset of all videotaped interviews conducted from May 4, 2004 to June 20, 2004 were reviewed June 16 to July 7, 2004 (3 wks) Weds-Mon, 2pm-10pm July 7 to 25, 2004 (3 wks) Weds-Mon, 2pm-10pm May 19 to June 27, 2004 (6 wks) Thurs-Mon, 6am-10pm May 5 to June 13, 2004 (6 wks) Weds-Sun, 2pm-10pm May 26 to July 5, 2004 (6 wks) Weds-Sun 9am-10pm Number of Cases 43 27 13 27 110 32 191 Research assistants monitored the study sites for over 1500 hours, generating data on several hundred cases (described in detail below). The amount of time spent collecting data and the number of staff available varied across sites, ranging from a minimum of two researchers at Atlanta for a two-week period to a maximum of six researchers at Newark, Miami, and San Ysidro for six-week periods at each site. In all ports where live observation and interviews were conducted, staff were present during the hours and days in whichchez the maximum volume of 7 -San y 2,and01 Secondary Inspections were conducted. As a result of space constraints 2 concerns about ta r ral interference with port operations, USCIRF agreed e CBP ebrua to limit both the number of v. P to n F requests Aa given site at any time, as well as the number of o US research assistants who could be present in ed in data.hived it weeks that research staff could collect arc C 393 4-50 number of aliens sent to Secondary Inspection per year 1 National estimates of the No. approximate 10 million, and 90 percent of these individuals are ultimately allowed to enter the U.S. after being processed through an initial triage, usually at a counter in a large waiting room (Congressional Research Service Analysis of INS Workload Data, 2004). Our focus was confined to the 10 percent not allowed past this triage stage—i.e., those sent to Secondary Inspection interviews. Research assistants observed as many Secondary Inspection interviews that time and personnel restrictions allowed (provided they were informed that these interviews were occurring), and conducted independent interviews with aliens after the Secondary Inspection interviews were complete whenever possible. The length of observations ranged from 3 to 386 minutes, with an overall average of 54 minutes, although there was considerable variation across ports of entry. Interviews averaged 18 minutes at San Ysidro (range: 3 to 150) compared to 2 hours and 53 minutes at Houston (range: 79 to 380). Post-inspection interviews lasted, on average, one hour each. Roughly 10 percent of all observations were observed simultaneously by two researchers in order to assess the reliability of the ratings generated. Variables that could not be reliably rated were not used in subsequent data analysis (described below). In sites where live observation was used to collect data (JFK, Los Angeles, Miami, Newark, and San Ysidro), aliens were asked to consent to allow research assistants to observe the Secondary Inspection interview. Of the aliens who were asked to consent to live 6 Case: 14-50393, 02/07/2017, ID: 10304776, DktEntry: 43-2, Page 167 of 203 observations, only two (0.4 percent) refused to allow an observer to be present. A substantially larger proportion of aliens refused to consent to an individual interview after completion of the Secondary Inspection interview, as 64 of the 266 aliens (24 percent) approached refused. The most common reason cited for refusing to participate in an individual interview was feeling tired (n=8), although 21 people did not offer an explanation for refusing to participate in the research interview. Because researchers at Atlanta and Houston reviewed videotaped Secondary Inspection interviews that had already been completed, no individual interviews were conducted at Atlanta and only four were conducted at Houston. Once interviews or observations were complete, researchers requested official immigration files (A-Files) prepared on the basis of these same secondary interviews in order to compare the A-Files of the Secondary Inspection interview and the direct observations of our research team. Thus, a maximum of three data sources were available for analysis: observation (direct or videotaped) of the Secondary Inspection interview, independent interview with the alien and official records produced on the basis of the Secondary Inspection interviews (A-files). Although the study methodology centered around obtaining a consecutive sample of Secondary Inspection interviews conducted at the research sites, we deliberately under-sampled Mexican cases processed at San Ysidro. Because of the high volume of Mexicans involved in Expedited Removal at San Ysidro, and the potential for these data to dwarf data collected at the other sites, we included data from only a subset of all Mexican cases and prioritized observations and interviews of non-Mexican aliens. This under-sampling was handled in several ways. First, ez volume after collecting observational data on 200 Mexican cases (far anch exceeding the017 of cases -S with 2, 2 from other sites), we stopped conducting individual ralta e interviews uaryindividuals from Mexico in P br order to focus our resources on interviewsA v. non-Mexican aliens (although direct observation S with d on Fe in U hiv Second, in order reduce of Secondary Inspection interviews continued). e ited countries, we included only to randomthe disparity between Mexican aliens and those C other3 arc from 9 a subset of these cases 3 in the dataset analyzed (roughly one fourth of all Mexican cases observed; n=150). Finally, a 4-50 1 No. number of analyses were conducted twice, once using the total sample and once after eliminating the San Ysidro sample. The analyses excluding San Ysidro are noted throughout the report and can be found in Appendix C. Thus, although the sample described below still contains a large number of Mexican aliens interviewed or observed at San Ysidro, it contains only a fraction of all Mexican cases for which data were collected. Logistical difficulties also hindered data collection at some sites. For example, JFK has five terminals that process international flights and most regularly conduct Secondary Inspection interviews at counters rather than in individual rooms. Because these factors presented methodological challenges not present at other sites, we were unable to collect a sufficient amount of data to estimate an accurate picture of the frequency of behaviors and processes at this site. We observed cases at one terminal only (Terminal Four), and scheduled our research assistants to be present during the late afternoon and evening (high traffic periods). Because of the limited number of cases, JFK data are excluded from port-by-port statistical analyses, although they are included in analyses using the total sample. In several data collection sites (Atlanta, Houston, and San Ysidro), Secondary Inspection interviews (live or videotaped) were observed by two researchers in order to establish inter-rater reliability. At San Ysidro and Houston, two researchers observed every 10th secondary 7 Case: 14-50393, 02/07/2017, ID: 10304776, DktEntry: 43-2, Page 168 of 203 investigation interview while at Atlanta every interview was observed by two raters. In total, 93 paired ratings were available for analysis. Inter-rater reliability varied across the data collected with many variables being reliably assessed and others that were more difficult to establish reliable coding. When reliability was unacceptable (Kappa coefficient below .4 or intraclass correlation coefficient below .6), variables were excluded from subsequent data analysis.4 Of the data reported here, the average inter-rater reliability coefficient for dichotomous variables (Kappa) was .63 (range .42-1.00) and for variables with more than two categories (intra-class correlation coefficients) was .90 (range .65-1.00). All data were initially entered into an Excel spreadsheet. Supervisory staff (Dr. Rasmussen and Ms. Reeves) monitored data entry, reviewing all data for incorrect entries and comparing 10 percent of all records against original sources to insure data accuracy. Excel spreadsheets were then converted to SPSS for subsequent data analyses. Participants In total, data were analyzed for 443 different cases across the seven data collection sites. These cases included 404 direct observations of Secondary Inspection interviews (341 live observations and 63 observations of videotaped interviews; because the same data was available from these two sources, these were collapsed into a single “observation” dataset for most analyses) and 194 individual interviews with aliens. Both interview and observation data were ez available for 155 cases; 39 cases had only an interview with our staff without17 anch , 20 direct observation a-S of the CBP secondary investigation interview. A-files were available for 435 of these 443 cases eralt bruary 2 P (A-files were not provided for 8 cases). SA v.1 presents a schematic representation of the Figure Fe U d on overlap between the three data sources. ed in hive Cit arc 393 and interviewed 50 Figure 1.1: Participant cases-observed o. 14 N Observed only (n = 249) Observed and Interviewed (n = 155) Interviewed only (n = 39) 4 This process resulted in the exclusion of relatively few variables with the exception of observational ratings of several officer behaviors (described in Section IV), where a moderate number of potential variables were excluded because of inadequate reliability. Much of the difficulty in establishing reliability for these variables was attributable to the low frequency of the behaviors although some were also subjective in nature, increasing the potential variability in rater coding. Variables that were analyzed are found in Section IV of this report. 8 Case: 14-50393, 02/07/2017, ID: 10304776, DktEntry: 43-2, Page 169 of 203 Because some important differences emerged across sites while other issues were consistent across all or most sites, data are described in some places for the entire sample and in other instances are reported for specific sites. Demographics for the three samples are presented in Appendix A. Males comprised 58 percent of the sample. Participants came from 56 countries, although the vast majority originated from Central and South America and the Caribbean (roughly 80 percent). Over half the cases from each sample resulted in an Expedited Removal while another 24 percent were labeled Withdrawals (i.e., the alien voluntarily returned to his or her country of origin without requesting asylum or being banned from re-entry); roughly one sixth of all cases resulted in a referral for a Credible Fear interview. The initial intent of this study was to focus on both Expedited Removal proceedings as well as the processing of aliens bearing documentation from a Visa Waiver Program (VWP) country who were suspected of actually being from a non-VWP country.5 However, because only a small number of VWP refusal cases (i.e., where an individual bearing documentation from a VWP country was refused entry because of suspected fraud or misrepresentation) were found (n=19), these data were excluded from analyses.6 Basis for Secondary Inspection and Case Outcome Because many aliens were unaware of the basis for their Secondary Inspection interview, data on the reasons for Secondary Inspection across the different portsz entry were taken only of che from cases in which direct observation of Secondary Inspection interviews 017 San 2 occurred. Of note, these data were missing in five percent of cases (n=20).tThe most common reasons for a al a- ruary 2, Per Secondary Inspection interview included clearly falsen Feb documents, cases in which the A v. o or missing US travel visa appeared suspicious d imay have misrepresented the alien’s intent, or when the alien e or n archived it had overstayed his or her C during a previous visit to the U.S. Cases in which the CBP officer visa 393 characterized the alien’s 14-50 (passport and/or visa) as false (i.e., were clearly documents No. Table 1.2: Basis for the Secondary Inspection Interviews by Port of Entry Port of Entry Objective Discretionary Prior Overstay Otherª Total Atlanta 3 (7.1%) 17 (40.4%) 8 (19.0%) 14 (33.0%) 42 Houston 6 (23.0%) 16(61.6%) 2 (7.7%) 2 (7.7%) 26 Los Angeles 10 (50.0%) 4 (20.0%) 2 (10.0%) 4 (20.0%) 20 Miami 34 (36.2%) 15 (16.0%) 36 (38.3%) 9 (9.6%) 94 Newark 16 (53.4%) 4 (13.3%) 7 (23.3%) 3 (10.0%) 30 San Ysidro 107 (62.2%) 52 (30.3%) 1 (.6%) 12 (7.0%) 172 Total 176 108 56 44 384 ª Other reasons included attempting to evade inspection, being arrested during prior visa extensions, and failing to register with immigration authorities on a prior visit. 5 Under the standing interpretation of DHS regulations, aliens who use false passports from visa waiver countries will be returned unless they step forward and identify themselves as asylum-seekers. In contrast, aliens who use other false documents are subject to expedited removal, and must be asked if they have any fear of return before they can be expeditiously removed. (See 8 CFR 217.4; DHS Inspector Field Manual Section 15.7 (2003), In re Kanagasundram, BIA Interim Decision 3407 (1999)). 6 Of the 19 VWP cases observed in the course of this study, three were referred for an “asylum only” interview (i.e., three requested asylum upon interview). Although this sample is small, the findings highlight the possibility that some individuals seeking asylum enter the U.S. bearing documentation from a VWP country. 9 Case: 14-50393, 02/07/2017, ID: 10304776, DktEntry: 43-2, Page 170 of 203 fraudulent) or were absent (i.e., no passport) were subsequently classified as “objective” reasons for Secondary Inspection whereas cases in which a legal passport was presented but the CBP officer suspected that the visa did not accurately reflect the alien’s intent (e.g., an adult traveling on a student visa who is suspected of intending to remain indefinitely) or that the alien committed a material misrepresentation as “discretionary” reasons for a Secondary Inspection interview. In addition, we categorized Prior Overstay as a separate category since these decisions are often at the discretion of the CBP officer, although the bases for such decisions are typically more objective than cases of misrepresentation. Ports of entry differed in reasons offered for a Secondary Inspection interview, with Houston and Atlanta being more likely to refer aliens based on discretionary reasons than other ports of entry (see Table 1.2). Case outcome also varied by port of entry. In most ports, Expedited Removal comprised the vast majority of case outcomes although both Atlanta and Houston had much higher rates of withdrawals. The proportion of Credible Fear referrals was also much higher in Miami than in the other ports of entry studied (see Table 1.3). Table 1.3: Case Outcome by Port of Entry Port of Entry Atlanta Houston Los Angeles Miami Newark San Ysidro Total Expedited Removal 13 (30.2%) 11 (40.7%) 11 (40.7%) 38 (34.5%) 12 (37.5%) 168 (88.0%) 253 Withdrawal Credible Fear Total Referral 30 (69.8%) 0 43 14 (51.9%) 2 (7.4%) 27 7 (25.9%) 9 (33.3%) 27 ez 34 (30.9%) 38 (34.5%) 110 nc a h , -S 2 12 (37.5%) 8 (25.0%)alta 32 er P ruary 10 (5.2%) 191 b v A 13.(6.8%) n Fe430 107 US 70 o d in 2017 ve Cited 93 archi Use of Interpreters and Bilingual Officers 503 . 14No Less than one fifth of all cases (16.7 percent) were processed solely in English (i.e., when the alien spoke English). Cases were processed in 27 other languages, with the most common languages being Spanish (61.6 percent of all cases analyzed), followed by Portuguese (5.7 percent), Mandarin (4.1 percent), Haitian Creole (4.5 percent), and Arabic (1.1 percent). Information regarding the use of interpreters and bilingual officers are presented in Table 1.4 and 1.5. There was only one case processed during the study period in which a non-English speaking alien reported (during the interview with research staff) that no interpreter had been provided despite the inability of the interviewing officer to speak his language, however direct observation of this case did not occur7. Table 1.4: Interpreters, Bilingual officers, and interviews in English Interpreter used Interview done in English Interview done by bilingual officer only Total Frequency 131 79 218 428 7 Percent 30.6 18.5 50.9 100.0 There were two cases where aliens were provided interpreters but only after repeated requests by the alien. In a third case, it is unclear whether an interpreter was provided after repeated requests by the alien. 10 Case: 14-50393, 02/07/2017, ID: 10304776, DktEntry: 43-2, Page 171 of 203 Table 1.5: Number of cases and languages in which officers were bilingual Spanish Haitian Creole Mandarin Russian French Frequency 199 13 4 1 1 Percent 91.3 6.0 1.9 0.5 0.5 Types of interpreters used for those cases conducted in a language not shared between officer and alien by ports of entry are presented in Table 1.6. Clearly there were differences across sites, with Miami relying on telephonic interpretation, Atlanta on in-person staff, and Los Angeles, using all methods available. Table 1.6: Type of Interpreters by Ports of Entry Atlanta Houston Los Angeles Miami Newark San Ysidro Total Interviewing officerª 2 (6.7%) 1 (33.3%) 4 (19.0%) 2 (4.1%) 2 (22.2%) 1 (7.7%) 12 (9.6%) Another CBP officer 0 1 (33.3%) 3 (14.3%) 1 (2.0%) 1 (11.1%) 1 (7.7%) 7 (5.6%) Telephonic interpreter 0 0 5 (23.8%) 46 (93.9%) 5 (55.6%) 11 (84.6%) 67 (53.6%) Airline employee 3 (10.0%) 0 5 (23.8%) 0 1 (11.1%) 0 9 (7.2%) In-person interpreter 24 (80.0%) 0 3 (14.3%) 0 0 0 27 (21.6%) Unknown 1 (3.3%) 1 (33.3%) 1 (4.8%) 0 0 0 3 (2.4%) Total cases 30 3 21 49 9 13 125 ªInterviewing officers both interviewed aliens themselves and interpreted for the primary officer z che 7 -San y 2, 201 ta Representativeness of study samples r ral v. Pe n Februa A o US Most ports of entry provided basic demographic and case outcome information for cases ed in archived it study period but were not included in our study. Reasons for the C that were processed during the 393 failure to observe a Secondary Inspection interview or conduct a separate interview with the 4-50 o.of1research investigators on site at the time a case was processed, a N alien included the lack volume of cases processed that exceeded the number of study investigators available, or a refusal on the part of the alien to participate in the study. Because the data provided varied somewhat across the study sites, comparisons were made on a port-by-port basis rather than using the aggregated dataset. Moreover, comparison data were not provided prior by Newark, and at Atlanta there was no comparison data because observations included all of the cases that were processed during the study period. Detailed data comparing cases observed during the course of the study versus those cases processed but not observed or interviewed are presented in Appendix B. Across the sites that provided basic demographic data on Secondary Inspection interviews (Houston, JFK, Miami, San Ysidro), there were no significant differences in the gender or age of aliens who were observed or interviewed by our research staff compared to those processed but not included in our study. Case outcome differed between cases processed and those not observed at some ports of entry but not others. The proportion of Credible Fear referrals in our sample was greater at Miami and San Ysidro compared to cases not studied (i.e., we observed a disproportionately greater number of cases that resulted in a referral for Credible Fear interview) but there were no differences at the other sites. The proportion of Expedited Removals was greater among cases observed compared to those not observed at Houston but did 11 Case: 14-50393, 02/07/2017, ID: 10304776, DktEntry: 43-2, Page 172 of 203 not appear to differ at other sites. There were no differences with regard to case outcome between cases included in this study and cases processed but not included at JFK and Los Angeles. Region of origin for aliens included in our study differed from those processed but not included at San Ysidro but not at the other study sites. At San Ysidro, the proportion of aliens from Latin America was lower in our sample than in the group not observed or interviewed, although this discrepancy was deliberate, due to our intentional under-sampling of Mexicans described above. Country of origin data were not available for JFK or Los Angeles. Given the modest, and non-systematic differences (with the exception of region of origin at San Ysidro), the data collected in the present study appears to provide a representative sample of the population of cases processed at these ports during the study period. Relative to national statistics for 2000-2003 (summarized in Fleming and Scheuren, Statistical Report on Expedited Removal, Credible Fear, and Withdrawal, FY 2000-2003), our sample includes a higher proportion of women, of Expedited Removal cases at airports, and includes four of the top ten countries of origin for Credible Fear cases for 2000-2003. In addition, the patterns of case outcomes at particular ports of entry were similar. ez anch , 2017 a-S eralt bruary 2 .P SA v d on Fe in U hive ited C arc 393 -50 o. 14 N 12 Case: 14-50393, 02/07/2017, ID: 10304776, DktEntry: 43-2, Page 173 of 203 II. USE AND ADHERENCE TO THE I-867 FORMAT The I-867A form provides information to arriving aliens concerning the Expedited Removal process, the consequences of providing false information, and the protections given by the U.S. for those individuals fleeing persecution. The I-867B form consists of questions designed to assess whether or not the alien has any fear of returning to his or her country—the “fear questions.” CBP Expedited Removal Training Materials (September, 2003) state that “Form I-867A&B must be used in every case in which an alien is determined to be subject to Expedited Removal. It is not an optional form” (p. 15; emphasis in original). Box 2.1 reproduces the text provided in the I-867A and B forms. Box 2.1: Information that officers are obliged to read to aliens I-867A 2nd paragraph 3rd paragraph 4th paragraph I-867B Fear Questions o. N Question 1 Question 2 Question 3 You do not appear to be admissible or to have the required legal papers authorizing your admission to the United States. This may result in your being denied admission and immediately returned to your home country without a hearing. If a decision is made to refuse your admission into the United States, you may be immediately removed from this country, and if so, barred from reentry for a period of 5 years or longer. This may be your only opportunity to present information to me and the Immigration and Naturalization Service [sic.] to make a decision. It is very important that you tell me the truth. If you lie or give misinformation, you may be subject to criminal or civil penalties, or barred from receiving immigration benefits or relief now or in the future. ez anch face persecution, harm or U.S. law provides protection to certain -S who 2017 ta personsary 2,have a concern about being torture upon return to their home al If you fear or u Per country.being sent home, you should tell me so removed from the United.States or about b Fe r Av S because youn not have another chance. You will have the during this n U i interview hived o may ited opportunity to speak privately and confidentially to another officer about your fear C arc 3 That or concern.93 officer will determine if you should remain in the United States and 50 14-be removed because of that fear. not Why did you leave your home country or country of last residence? Do you have any fear or concern about being returned to your home country or being removed from the United States? Would you be harmed if you are returned to your home country or country of last residence? Although reading the I-867A form is a required element of every Secondary Inspection interview in which Expedited Removal will be applied, we observed many cases in which the requisite information was not provided to the alien. In many other cases the alien was simply handed a photocopy containing the necessary information but was not read the information or offered any further explanation (see Table 2.1). The column labeled “Not read but presented in text” refers to cases in which the I-867A form was given to the alien without instructions or explanation of its content (i.e., placed in front of them). This was a common practice at Houston, which accounted for virtually all of the cases in which this material was presented in written form (see Table 2.1). 13 Case: 14-50393, 02/07/2017, ID: 10304776, DktEntry: 43-2, Page 174 of 203 Table 2.1: Information conveyed and questions asked from the I-867A and B forms Obligatory Statements Read or Paraphrased I867A 2nd paragraph 278 (75.3%) I867A 3rd paragraph 206 (56.0%) I867A 4th paragraph 164 (44.1%) I867B: Why did you leave...? I867B: Do you have any fear...? I867B: Would you be harmed..? I867B: At least one fear question asked 325 (89.8%) 336 (94.1%) 311 (87.1%) 362 (95.0%) Observation Not read 72 (19.5%) 142 (38.6%) 188 (50.5%) 37 (10.2%) 21 (5.9%) Not read but presented in text 19 (5.1%) A-File Question/response Question/response not in record in record -- -- 20 (5.4%) -- -- 20 (4.5%) -- -- -- 376 (95.2%) 22 (5.5%) -- 379 (95.2%) 19 (4.8%) -- 379 (95.2%) 19 (4.8%) -- 379 (94.8%) 21 (5.3%) 46 (12.9%) 19 (5.0%) To examine the use and adherence to the I-867 format at each port of entry, these figures were obtained for each port of entry. Table 2.2 presents the same information as Table 2.1 portby-port.8 hez a 2, Atlanta Houston Los eraltMiami9 aryNewark P ru Angeles v. eb U A ed 86F 37 (94.9%) 22 (91.7%) S 12 (75.0%) on (97.7%) 19 (67.9%) in ited rchiv C 3 a 12 (75.0%) 87 (97.8%) 14 (50.0%) 35 (89.7%) 23 (95.8%) 5039 14No. 35 (89.5%) 23 (95.8%) 11 (68.8%) 86 (96.6%) 13 (46.4%) 120 (69.4%) 34 (91.4%) 20 (87.0%) 17 (85.0%) 71 (98.6%) 25 (83.3%) 157 (88.2%) 34 (89.5%) 22 (91.7%) 18 (90.0%) 69 (97.2%) 29 (96.7%) 163 (94.2%) 33 (89.2%) 20 (83.3%) 17 (85.0%) 70 (98.6%) 26 (86.7%) 144 (82.8%) 34 (91.4%) 22 (91.6%) 18 (90%) 95 (96.9%) 29 (96.7%) 169 (94.4%) Table 2.2: Information presented from the I-867A and B forms nc Port of2017 Entry -Sa by Item Read or Paraphrased I867A 2nd paragraph I867A 3rd paragraph I867A 4th paragraph Why did you leave..? Do you have any fear..? Would you be harmed..? At least one fear question asked San Ysidro 55 (32.2%) 17 (9.7%) Rates of reading information in the three paragraphs of the I-867A form varied across ports of entry,10 as did the rate associated with asking the third fear question (“Would you be harmed...?”).11 While rates for conveying this information were lower in Newark and Los Angeles than Miami, Houston and Atlanta, the lowest rates of compliance with I-867 requirements were observed at San Ysidro. At this site, aliens were read the 2nd paragraph from 8 The number and corresponding percentages vary somewhat because of missing data. Language limitations of research assistants resulted in a number of missing cases for this variable at Miami. 10 Categorical association was measured using chi-square analysis; ²=36.12, p<.001; ²=121.70, p<.001; and ²=213.09, p<.001; for the 2nd, 3rd, and 4th paragraphs, respectively. 11 Categorical association was measured using chi-square analysis; ²=12.75, p<.05 9 14 Case: 14-50393, 02/07/2017, ID: 10304776, DktEntry: 43-2, Page 175 of 203 the I-867A form in roughly two thirds of all cases but only one in ten aliens were read the 4th paragraph pertaining to U.S. providing protection to those fleeing persecution.12 San Ysidro personnel reported (after data collection had been completed) that staff periodically show an informational video that contains I-867A content (in both Spanish and English) to aliens awaiting Secondary Inspection in lieu of reading the information. San Ysidro personnel reported that officers are expected to read the I-867A to the alien when this video is not shown. Because this video was not observed by our research staff, we could not determine whether aliens watched this video when officers did not read the I-867A, and there is no information in A-files to indicate whether or not the video was shown. Moreover, it is not clear if officers conducting Secondary Inspection interviews are aware of whether or not this video has been shown to an alien when they begin their Secondary Inspection interviews. For subsequent analyses, we compared those cases in which the officer was observed to read the I-867A information versus those that were either not read or presented only with a written copy of the information (consistent with CBP policy and DHS regulations that require officers to read this information to the aliens out loud, IFM 17.15(b)(2003) and 8 CFR 235.3(b)(2)(2004)). In order to judge whether officers’ adherence to the I-867A and B differed when a live observer was present versus when observations were videotaped, we compared data from videotaped observation sites (Atlanta and Houston) to those where live observation was used. Contrary to our expectation that the presence of study interviewers would result in greater compliance with established policies, two of the three I-867A paragraphs (the 2nd and 4th) were ez actually read more often in videotaped observations compared toch observation.13 There was an direct , 2017 -S 2 no significant difference in the rates of asking the eraltafear questions. These findings were I-867B ua y P excludedr(seerAppendix C). largely unchanged when data from San SA v.were n Feb Ysidro in U hived o itedI-867Baquestions was substantially greater than provision of the c Officer utilization C the 93 r of 3 were only omitted in between six and 13 percent of all I-867A information, as these 50 . 14-questions N However, despite the observation of a number of cases in which the Icases (see Table 2.1).o 867B Fear questions were not asked, official documents prepared during these interviews (Afiles) indicated that questions were asked and answered in most of the cases in which our research team did not observe any such questioning (see Tables 2.3-2.5). Notably, in some cases where the file did not indicate that the question had been asked or answered, our observers documented that the question had actually been asked. In 37 of 356 cases observed, the first question regarding why the individual left his or her home country or country of last residence was not read to the individual being interviewed (data were missing in 48 cases). Yet in 32 of those 37 cases (86.5 percent), the A-file incorrectly indicated that the question had been asked and answered. Of note, there was no indication in any of these files that this question was deliberately omitted because the information had been offered spontaneously during an earlier portion of the interview. Moreover, for the subset of these 37 cases in which a second researcher observed the same interview, both observers agreed that the question had not been asked. 12 All but 10 cases in the study sample at San Ysidro were subject to Expedited Removal proceedings. While there are ports of entry that regularly provide I-867 material to Withdrawal cases, there is some disagreement whether or not this practice is required. In any case, the 10 cases at San Ysidro (which were not provided I-867 information) are too few to substantially influence study results. 13 The association between observation type and proportion of cases in which I-867A information was read to the alien was analyzed using the chi-square test of association; ²=5.38, p < .05; ²=0.37, p = .54; and ²=6.61, p < .01 for the 2nd, 3rd, and 4th paragraphs, respectively. 15 Case: 14-50393, 02/07/2017, ID: 10304776, DktEntry: 43-2, Page 176 of 203 Table 2.3: "Why did you leave..." Question observed Total Yes No Question in file Yes No 304 (95.3%) 15 (4.7%) 32 (86.5%) 5 (13.5%) 336 20 Total 319 37 356 Table 2.4: "Do you have any fear..." Question observed Total Yes No Question in file Yes No 324 (98.2%) 6 (1.8%) 10 (47.6%) 11 (52.4%) 334 17 Total 330 21 351 Table 2.5: "Would you be harmed..." Question observed Total Yes No Question in file Yes No 300 (98.0%) 6 (2.0%) 34 (75.6%) 11 (24.4%) 334 17 Total 306 45 351 Because records of Secondary Inspection are relied upon in Credible Fear determinations ez and subsequent asylum hearings, we looked closely at any information concerning the anch , 2017 a-S consistency of A-files and observations of these cases. lAlthough not asked to specifically note ry era t casesa(out 2 69 referred for a inconsistency in case notes, research assistants. noted seven bru of v P n Fe SA of o Credible Fear interview) in which, n U reviewedA-files, there were marked differences upon i iv C ted 9 information contained in the official records. In five cases between what was observediand the 3 arch considerable detail about the-503 fears was not present in the A-file despite having been aliens’ o. 14one of these cases the officer specifically instructed the alien not to offered by the alien (and in N give details and to simply respond “yes” or “no” to questions). In three cases, the information recorded in A-files was qualitatively different from the responses observed in Secondary Inspection (e.g., one person responded to a fear question that “Falun Gong teaches me to help people” and the file states that this person simply answered “yes”). It should be emphasized that research assistants’ notes were not structured to investigate inconsistency between A-file and observations, and therefore these discrepancies are likely to represent a conservative estimate of the actual magnitude of this phenomena. Relationship between I-867 and Credible Fear Referrals In order to investigate the impact of reading I-867 materials, we explored the relationship between providing this information and Credible Fear referrals. There was no association between whether the interviewing officer read the 2nd paragraph (pertaining to the potential for removal and a 5-year bar on re-entry) and Credible Fear referral. However, Credible Fear referrals were significantly associated with reading the 3rd and 4th paragraphs of the I-867 (“This may be your only opportunity to present information …” and “U.S. law provides protection to certain persons who face persecution, harm or torture …” respectively). These data are detailed in Tables 2.6 and 2.7. For the 3rd paragraph, the likelihood of being referred for a Credible Fear interview was four times greater when the information was read to aliens compared to cases in 16 Case: 14-50393, 02/07/2017, ID: 10304776, DktEntry: 43-2, Page 177 of 203 which this information was not provided.14 The odds of being referred for a Credible Fear interview increased seven times when the 4th paragraph was read to aliens relative to when it was not.15 Table 2.6: Association between 3rd paragraph (“This may be your only opportunity to present information…”) and referral for Credible Fear Read 3rd paragraph Not read 3rd paragraph Referred 51 (24.8%) 13 (8.0%) Not referred 155 (75.2%) 149 (92.0%) Table 2.7: Association between reading the 4th paragraph (“US law provides protection…”) and referral for Credible Fear Read 4th paragraph Not read 4th paragraph Referred 51 (31.1%) 13 (6.3%) Not referred 113 (68.9%) 195 (93.8%) With cases from San Ysidro excluded, associations between reading these paragraphs and referral showed a similar pattern of results, although the associations were no longer statistically significant because of the reduced sample size (see Appendix C). In order to investigate whether the failure to ask the I-867 questions pertaining to fear had an impact on case outcome, we analyzed rates of referral for a Credible Fear interview among hez 017 three sub-groups of individuals: those who were asked bothSanc fear-related questions (“Do you have ,2 aany fear of returning …” and “Would you be harmedaltyou returned …”; n=327), those who er if bruary 2 .P were asked neither of these questions (n=20), and a on Fe SA v d third group who were asked only one of the n U hi 2.8, two questions (n=35). As evidentifrom Table ve the likelihood of a Credible Fear referral ited rc C 16 increased with each additional fear93 a 3 question asked. -50 o. 14 directly by officer N Table 2.8: Fear inquired about Both "Fear" and "Harm" asked Either "Fear" or "Harm" asked Neither Fear Question asked Referred 59 (18.0%) 3 (8.6%) 1 (5.3%) Not Referred 268 (82.0%) 32 (91.4%) 18 (94.7%) Of the 54 cases in which one or both of the fear questions were not asked, only four were referred for a Credible Fear interview. Eighteen of the 19 cases in which neither fear question was read either withdrew their application for admission to the U.S. or were ordered removed; only one was referred for a Credible Fear interview. Of the 35 cases in which one of the two questions were asked, 32 were ordered removed or withdrew their application for admission, and three were referred for a Credible Fear interview. With San Ysidro cases removed from the sample, these effects were roughly comparable (although again, the association was no longer statistically significant). In both the analyses with and without San Ysidro data, the likelihood of referral for a Credible Fear interview was roughly doubled for each fear question asked (i.e., the 14 This association was measured using the chi-square test of association; effect size was estimated with an odds ratio (OR); ²=17.67, p<.01, OR=3.77. 15 This association was measured using the chi-square test of association; effect size was estimated with an odds ratio (OR); ²=34.83, p < .001, OR=7.09 16 Spearman’s Rho ( )=.10, t=1.97, p <.05, OR=2.14 17 Case: 14-50393, 02/07/2017, ID: 10304776, DktEntry: 43-2, Page 178 of 203 likelihood was 4 times greater for individuals who were asked both fear questions compared to those who were asked neither question).17 Confirming statements made in Secondary Inspection interviews The statements taken during Secondary Inspection interviews and recorded in the I-867 form comprise an official record of the content of interviews between officers and aliens. Following the conclusion of the Secondary Inspection interview, aliens are asked to sign a statement attesting that the transcript of the statements made is correct. Confirming the accuracy of the statements is thus a required step for those referred for a Credible Fear interview, since these statements may be introduced as evidence during subsequent proceedings. According to the regulations: Following questioning and recording of the alien’s statement regarding identity, alienage, and inadmissibility, the examining immigration officer shall record the alien’s response to the questions contained on the Form I-867B, and have the alien read (or have read to him or her) the statement, and the alien shall sign and initial each page of the statement and each correction. 8CFR 235.3(b)(2)(i) Table 2.9: Observed being asked to confirm statements Yes No Total Frequency 319 59 378 Valid Percent ez 84.4 anch , 15.6 a-S eralt bruary 2 100.0 P . v e USA ed on F in Table 2.10: Confirming statements andarchiv for Credible Fear Cited 93 Referral Referred 03 Asked to confirm . 14-5 44 (13.8%) No Not asked to confirm 15 (25.4%) 2017 Not referred 275 (86.2%) 44 (74.6%) Overall, 84.4 percent of aliens observed were asked to confirm the truth of statements recorded by officers during Secondary Inspection. However, every statement was signed by aliens being interviewed – 15.6 percent were simply not informed of the reason for their signature. Being asked to confirm the truth of their statements was significantly less common for individuals who were referred for a Credible Fear interview hearing compared to cases in which the alien was being removed.18 More than a quarter of all aliens referred for a Credible Fear interview were not asked to confirm their statements, despite the potential use of these statements in subsequent asylum proceedings. With cases from San Ysidro removed, the rate of being asked to confirm statements was lower still (73.3 percent; the association between being asked to confirm statements and Credible Fear referral was not statistically significant when these data were excluded from the analysis; see Appendix C). We also analyzed whether aliens actually read or had their statements read to them during the process of confirming the statement. In only 28.2 percent of cases, aliens were observed to 17 Ordinal association was measured by Spearman’s Rho; =.10, p=.16; OR=1.91. 2 =5.11, p < .05, OR=.47. This finding is particularly worrisome given that Credible Fear referrals are precisely those instances in which the sworn statement may become relevant. 18 18 Case: 14-50393, 02/07/2017, ID: 10304776, DktEntry: 43-2, Page 179 of 203 read their statements or had their statements read to them before signing the confirmation.19 When analyzing only those cases in which aliens were actually asked to confirm their statements (319 cases, or 84.4 percent of all observations), the rate of reading statements is only slightly higher (29.8 percent). Reading statements to aliens was a problem identified at all ports of entry studied. There was no association between being informed of the content of statements and referral for a Credible Fear interview. Of note, when asked during our interviews whether the content of statements was accurate, several of the aliens who reported having read the statements indicated that they had identified errors in their accuracy. Unfortunately, because videotaped interviews were not possible in most ports of entry, and A-file records were not available during the time when research staff reviewed videotaped interviews, it was not possible to compare written statements against the actual interview transcript. Table 2.11: Were the statements read and by whom Alien read statements Interpreter read statements Officer read statements Statements not read Total Frequency 34 36 30 268 373 Valid Percent 9.1 9.7 8.0 71.8 100.0 ez anch , 2017 a-S eralt bruary 2 .P SA v d on Fe in U hive ited C arc 393 -50 o. 14 N 19 Despite short Secondary Inspection interviews at San Ysidro, the rate of confirming statements was higher. However, when cases from San Ysidro were excluded the rate of reading statements was also higher, (46.2%; see Appendix C). 19 Case: 14-50393, 02/07/2017, ID: 10304776, DktEntry: 43-2, Page 180 of 203 III. EXPRESSING FEAR AND REFERRAL Referral for a Credible Fear interview is triggered when an alien expresses a fear of returning to his or her country of origin. In the process of this study we became aware of a significant discrepancy between DHS Regulations (8 CFR 235.3, 2004) and the CBP Inspectors’ Field Manual (CBP, 2003) as to whether or not there are types of fear that need not result in a Credible Fear referral (versus a presumption that any expression of fear must result in a Credible Fear referral). Specifically, Federal Regulations require that a Credible Fear referral occur regardless of the nature of the fear expressed. The CBP Field Manual, however, indicates that instances where the fear would clearly not qualify an individual for asylum need not necessarily be referred. Because this study could not resolve these complex policy issues, we sought to analyze the relationship between Credible Fear referrals and the nature of fears expressed by the aliens. Among all cases for which data were available, we identified 69 cases where a referral for a Credible Fear interview occurred.20 Interestingly, in two of these cases no fear was expressed during the interview but the individual was referred for a Credible Fear interview nonetheless. Not surprisingly, the likelihood of a Credible Fear referral was significantly higher when an alien expressed some type of fear compared to cases in which he or she did not.21 However, in roughly one sixth of cases in which an alien expressed a fear of returning to his or her native country, no referral for a Credible Fear interview was madez the alien was either e and ordered removed or allowed to withdraw his or her application nc entry. Of note, these data a for h , 2017 a-S reflect the combined sample of interview and/orPeralt observationalrdata y 2 including the 39 uar (i.e., A v. on but were not observed in the secondary individuals for whom a research interview was availableFeb US investigation interview conductediby CBP).hived3.1 presents the relationship between ed n arc Table Cit referrals. This association was essentially unchanged when San expressed fear and Credible Fear393 0 Ysidro cases were excluded -5 Appendix C). . 14 (see No Table 3.1: Expressing fear to officer and Referral for Credible Fear Interview Fear expressed to officer No fear expressed to officer Referred 67 (84.8%) 2 (0.6%) Not referred 12 (15.2%) 309 (99.4%) Twelve individuals who expressed a fear of returning to their native country to officers were nonetheless returned without a referral for a Credible Fear interview (i.e., to determine if the fear expressed was sufficiently severe and valid as to warrant an asylum hearing in front of an immigration judge). These cases represented roughly three percent of all cases observed by our research staff but nearly one sixth of all cases in which a fear was expressed to officers. In seven of these 12 cases, the A-file did not indicate that any fear had been expressed. These 12 cases were no more or less likely to have been read I-867A information, or to be directly asked about their fear. In addition, there were 10 cases in which aliens expressed fear during our research interview when they had not mentioned any fear to the interviewing officer when asked. 20 This total did not include the 3 “Asylum Only” referrals of individuals arriving from Visa Waiver Program countries. 21 Categorical association was measured using chi-square analysis and effect size estimated with an odds ratio (OR); ²=306.47, p < .0001, OR=862.63 20 Case: 14-50393, 02/07/2017, ID: 10304776, DktEntry: 43-2, Page 181 of 203 All of these individuals, when asked if they wanted to alert the CBP officer of their fear, declined (these cases are thus not included in among “Fear expressed to officer” in Table 3.1).22 In response to CBP concerns that aliens may be “prompted” to express fears to officers by the I-867B fear questions, we further examined A-files of the 79 cases in which aliens were observed to express fear directly to officers. For six cases, either A-files were missing Q & A records (n=4) or the entire A-files were missing at the time of review (n=2). For 73 cases we were able to determine whether or not fear was expressed before the I-867B questions had been asked, or was only stated in response to the fear questions. According to A-files, 50 of these individuals (63.3 percent) spontaneously expressed a fear of returning to their home country during the question and answer session or in response to the question “Why did you leave your home country or country of last residence.” Three quarters of these (n=38), however, had been told that US provides protection to persecuted individuals (i.e., they were read the 4th paragraph of the I-867A). In another 17 cases (21.5 percent) aliens’ fear claims appear in records only in response to asking directly about fear, and for six cases, no fear was recorded in the A-files (these individuals were all returned to their countries of origin). It should be noted that interpreting these findings as evidence that most aliens (at least two-thirds) who claim fear are not prompted by the fear questions must be done in light of our previous findings of considerable discrepancies between direct observation and the A-files (see Section II). Nevertheless, there was little evidence that aliens are prompted to claim fear by the I-867 information and questions. ez h Types of fear expressed by those individuals who expressed a fear2017 Sanc 2, to officers are ta-the 12 individuals who expressed fear presented in the Table 3.2, and abbreviated descriptions of ry ral b the v. Peasn Feas ruaten individuals who expressed yet were not referred for a Credible Fear interview, well SA do fear to our research assistants ed in Uprovided in Appendix D. It should be noted that among only, are italiens who rchive fear were returned, five of them (of nine) are the countries to which theC 12 3 a expressed 5039 human rights abuses in recent reports from the US noted to have extrajudicial41 killings and No. Department of State and Amnesty International, and two of the countries have significant limitations on religious expression as cited in reports by the US Commission on International Religious Freedom.23 22 Seven of the ten individuals who expressed fear in the research interview but did not express their fear to interviewing CBP officer were asked to explain why they withheld this information. Two with a fear of economic hardship reported that their understanding of the officers’ questions were that they pertained only to “physical damage” and “life being in danger.” A third with an economic fear stated that he though the officers would not care and were going to deport him anyways. A woman who was afraid for her sick child reported that she thought “there was nothing [the officer] could do about” her situation. Another reported that he thought he actually had informed the officer of his fear but then declined the opportunity to relate his fear to the officers when given the opportunity. Two did not provide an explanation as to why they did not inform the officer of their fear, although both expressed considerable distrust of the interviewing officers. One indicated a belief that the officers were lying to him and the second reported that officers “screamed” at her while she was waiting for her interview and that they were “very inconsiderate” during the interview (the research assistant observing the interview corroborated this report, noting that an officer in the secondary waiting area was “sarcastic, demeaning” and “repeatedly shouted at her”). Three cases were missing information as to why they did not express their fear. 23 Because of concerns about the confidentiality of the participants, the countries are not identified—regions of origin for these participants are presented in Appendix D. 21 Case: 14-50393, 02/07/2017, ID: 10304776, DktEntry: 43-2, Page 182 of 203 Table 3.2: Expressed Fear for those referred to a Credible Fear Interview Referred Political Persecution 29 (43.3%) Coercive Family Planning 5 (7.5%) Religious Persecution 9 (13.4%) Membership in a Particular Social Groupª 9 (13.4%) Nationality 2 (3.0%) Race 2 (3.0%) Not Specified 4 (6.0%) Economic Hardship 2 (3.0%) Other 5 (7.5%) Total 67 ª This includes domestic violence and female genital mutilation. Not referred 1 (8.3%) 0 0 1 (8.3%) 0 0 3 (25.0%) 3 (25.0%) 4 (33.3%) 12 In many of the cases in which fear was expressed during the Secondary Inspection interview but no referral was made, the nature of the fear expressed may not have been sufficient justification for an asylum hearing.24 For example, three of the 12 cases in which aliens expressed fear directly to officers involved fears that were best characterized as economic hardship and one individual expressed a “fear” that concerned the health of a family member living in the U.S. However, two individuals articulated fears that may have formed the basis for a legitimate asylum claim, such as a fear of the government or concern about persecution by religious fundamentalists (one of these two individuals eventually declined referral for a Credible Fear interview after a lengthy discussion with interviewing officers).25z cases e Other 1 involved individuals whose fears were more ambiguous, such as cases anch the nature 7 the fear was not where 20 of -S y 2, altabecause of debts owed or using a false described or where the individual expressed fearPeharm of r uar passport to leave the country. Febr A v. S n in U hived o ited rc C In order to gage the prevalence a referring cases which may have formed the basis of an 393 of 0 4 instances involving asylum claim, we identified -5 persecution, o. 1religious persecution, a clearly articulated fear of politicalracial N coercive family planning, persecution based on nationality or discrimination, membership in a particular social group (including violence against women). Of the 58 cases that fell into these six categories, two aliens (3.4 percent) were not referred for a Credible Fear interview. In addition, there were seven cases in which the nature of the fear was not specified, and three of these individuals were also returned. When these two groups were combined (i.e., possibly “legitimate” fears based on asylum law and those cases in which the 24 Although our research methodology was not intended to ascertain the “validity” of fears expressed, we attempted to differentiate cases on the basis of the apparent legitimacy of the fears expressed in order to assess whether Credible Fear referral decisions were influenced by similar judgments made by CBP officers. 25 One man from South Asia characterized himself as a political activist and expressed fear of Islamic fundamentalists who had threatened him in the past. He acknowledged having applied for asylum during a previous visit but had been denied and subsequently removed. The research team observer noted that this individual clearly articulated a fear of returning to his country because of political persecution but also stated that he did not want to be detained. He indicated that he would prefer to return to his country rather than face detention in the U.S. The investigating officer informed the man that he could not be returned if he claimed fear, and was asked a second time whether he indeed feared returning. Upon this second inquiry the man denied having a fear of harm and was subsequently returned. Another individual, a male from Central America, expressed a fear of the government. When the CBP officer asked for more information this man was unable to give further explanation and subsequently retracted his claim. Of note, the A-file from this case indicated that the man’s concern pertained to his sons who were U.S. citizens and his wife who was ill. The file noted that his reply to the question about fear of harm was “it could be possible.” 22 Case: 14-50393, 02/07/2017, ID: 10304776, DktEntry: 43-2, Page 183 of 203 legitimacy of the fear could not be determined due to a lack of information) the rate of return was 7.7 percent (five of 65).26 A more general reading of U.S. Expedited Removal policies, in which anyone answering affirmatively to one of the “fear questions” should be referred for a Credible Fear interview, would result in a substantially higher rate of erroneous removals (roughly 15 percent, 12 of 79). Officers encouraging aliens to retract their fear claims While most individuals who expressed fear during Secondary Inspection were referred for a Credible Fear interview, there were four cases (all at Houston) in which CBP officers appeared to encourage aliens to withdraw their applications for admission after they had expressed a fear of returning to their home country and one case (at San Ysidro) in which officers encouraged an alien to retract his fear claim and removed him. In two of these cases aliens withdrew their application for entry into the US. One case in which an alien withdrew involved a woman from Central America who spontaneously expressed a fear of her ex-husband, crying and asking the officer to help her. The interviewing officer repeatedly told her that if she did not cooperate she would be “in trouble” and refused to answer her questions. Before asking the I-867B fear questions, the officer warned her that she would not see her family for a long time if she made a fear claim. The A-file indicated that the alien’s response to being asked about fear was, “Not a real fear. My ex-husband does not like me.” Another woman from Central America claimed a fear but did not specify the basis of that fear. The CBP officer handling the ez “we 7 case informed her that she needed to state a reason for her fear nch aand added201can’t let -S everybody in.” The alien asked how long she wouldrbelta custody ry 2, e a in brua and what would happen to her P son. The officer reportedly responded, “IfA v.say you’re afraid you will go into detention for an S you d on Fe unknown number of days until d in U a hearing” and that she would not be able to have you have hive c Cite in 93 home country). contact with her son (who lived her ar 503 . 14- encouraged to retract their fear claims but did not and were No Two other aliens were ultimately referred for a credible fear interview. In one case a CBP officer told an African man that because he had tried to obtain an R-1 (Religious Worker) Visa, he must not have a fear of returning to his native country. This man had already expressed a fear of government officials because of his prior associations with Americans working in his country of origin. In addition, officers described in detail negative aspects of detention and repeatedly asked whether he had a fear of returning (despite his having already expressed such a fear), seemingly attempting to elicit a different (negative) response. The man maintained his request for admission and was eventually referred for a Credible Fear interview. Another potential withdrawal case involved a Central American man who feared being harmed by his in-laws, who had threatened him repeatedly. The officer told him, “What you are experiencing is a personal problem, not one the US offers people asylum for” and that “I know for sure you will be deported.” The officer then told the alien that if he claimed fear he would be in detention for three months. The alien maintained his claim and was referred. 26 Extrapolating from our sample, the “error rate” among expedited removal cases at these ports of entry (which are the busiest in the U.S.) , using this more conservative estimate and excluding cases that appear unlikely to justify a legitimate asylum claim, would likely fall between 1 and 13 percent (95% confidence interval: .01, .13). 23 Case: 14-50393, 02/07/2017, ID: 10304776, DktEntry: 43-2, Page 184 of 203 There was one case in which officers encouraged an alien to retract his fear and then removed him via Expedited Removal (i.e., without the option of withdrawing). This South Asian man (who is referenced above in footnote 25) was a political activist and feared of Islamic fundamentalists who had threatened him in the past. He had reportedly applied for asylum during a previous visit but his application had been denied and he was subsequently removed. He clearly articulated a fear that “enemy parties would kill” him, stated that he also feared being detained in the US, and asked the officer for advice. The officer said she could not help him make a decision and that he had already taken up too much of her time. The supervisor told the officer to ask the “fear” question again and the alien then said no. The officer told him that he would be processed for removal, not for political asylum because he already asked for political asylum and had been denied. In addition to the cases described above, there were cases in which CBP officers told aliens about other negative consequences of pursuing asylum claims that could have been prohibitive. Two were told that because they entered illegally they might not have a chance to present their cases. Five were told they would be held in detention for three weeks or more and three of these were told that detention would last at least one month. Because it was sometimes difficult to differentiate between appropriate factual responses to alien questions and deliberate attempts to discourage fear claims, we did not consider these disclosures to reflect deliberate coercion. ez In addition to the above incidents, our researchers were nch informed of two incidents at San 17 a-Sa ry 2, 20 taway at Primary Inspection. Five aliens Ysidro in which asylum seekers were reportedly turned ral v. Pe the Februa previous day. These cases we interviewed reported having been turned away at n border the SA o i African hived who claimed to be fleeing political involved two African men and onen U ted iEastern manrexpressing fears of religious persecution by “people in c woman C a persecution and two Middle 0393 5having approached the CBP officer at Primary Inspection and power.” These aliens reported 14No. requesting asylum but being told to “go away.” One of the Africans stated that the CBP officer “told us to go back from where we came from,” forcing them to return to Mexico. The next day, Primary Inspection officers stopped and handcuffed them briefly until the aliens refused to leave. One African reported that he cried and begged the officer to allow him to enter and all three were subsequently brought to the Secondary Inspection area. A Middle Eastern man described a similar incident, stating that a CBP officer at Primary Inspection refused him entry, telling him that he and his companion would need a Visa in order to proceed. The next day they returned and were brought to the Secondary Inspection area. In all of these cases, a referral for Credible Fear interview was subsequently made, albeit on the second attempt to enter the U.S. 24 Case: 14-50393, 02/07/2017, ID: 10304776, DktEntry: 43-2, Page 185 of 203 IV. UNDERSTANDING THE RESULT OF SECONDARY INSPECTION INTERVIEWS In our interviews with aliens, research assistants also asked about the individual’s understanding of what would happen to them after completion of the Secondary Inspection interview. This question is particularly important because section 17.15(a) of the Inspector Field Manual requires that the inspector “must be absolutely certain…that the alien has understood the proceedings against him or her.” Nonetheless, nearly one third of the aliens we interviewed (n=56) reported having no knowledge of what was going to happen to them after the Secondary Inspection interview, despite having signed the statement (see Table 4.1). Understanding of the outcome of their interview did not vary by port of entry. Table 4.1: Aliens’ reports of what will happen to them next Expected to be returned to country of origin Expected to be detained Expected another interview Did not know Other Expected nothing Total Frequency 88 12 8 56 12 6 182 Valid Percent 48.4 6.6 4.4 30.8 6.6 3.3 100.0 Aliens’ expectations regarding the outcome of their case was not associated with their z case outcomes (see Table 4.2). Indeed, many aliens expected anche to be removed despite the fact that S referred 2017 ta-to be ary 2, for a Credible Fear a large proportion of these individuals were actuallyrgoing al u v. Pe n Feb Fear interview expected to be interview. More than half of the aliens referred for a Credible r SA nU returned to their country of origin iwhile only ioned o individual actually expected to have another ted ithan half of theh ve C arc individuals being removed were aware that this interview. Conversely, less 393 would be the outcome of14-5interview (despite having signed a statement indicating that they their 0 No. had been informed). Even among the subset of individuals who withdrew their application for admission to the U.S., roughly a third did not realize that they were going to be returned to their country of origin. In short, our interviews with aliens revealed considerable confusion about what was going to happen to them and this confusion was present regardless of the actual outcome of the case. Table 4.2: Aliens’ reports of what will happen to them next by case outcome Expected to be returned to country of origin Expected to be detained Expected another interview Did not know Other Expected nothing Total Credible Fear referral Expedited Removal 23 (53.5%) 41 (39.8%) 2 (4.7%) 8 (7.8%) 1 (2.3%) 6 (5.8%) 11 (25.6%) 38 (36.9%) 5 (11.6%) 6 (5.8%) 1 (2.3%) 4 (3.9%) 43 103 25 Withdrawal 24 (66.7%) 2 (5.6%) 1 (2.8%) 7 (19.4%) 1 (2.8%) 1 (2.8%) 36 Case: 14-50393, 02/07/2017, ID: 10304776, DktEntry: 43-2, Page 186 of 203 V. OFFICERS’ BEHAVIOR DURING SECONDARY INSPECTION INTERVIEWS Research assistants were also instructed to note a number of behaviors that might arise during Secondary Inspection interviews. These behaviors included several behaviors thought to be consistent with aggressive or intimidating interrogation procedures, as well as behaviors that reflected positive or helpful behaviors on the part of the officer.27 The frequency of these behaviors is presented in Tables 4.3 and 4.4. Table 5.1: Aggressive or Intimidating Behaviors Observed during Secondary Inspection Behavior All cases Raising voice Interrupting Grabbing/threatening touches Accusations Verbal threats Sarcasm/Ridicule Being demanding Standing over alien Leaving room without explanation 41 (10.4%) 40 (10.1%) 1 (0.3%) 28 (7.1%) 20 (5.1%) 37 (9.4%) 36 (9.1%) 9 (2.3%) 63 (15.9%) Cases referred for Credible Fear 13 (19.7%) 10 (15.2%) 0 4 (6.1%) 2 (3.0%) 7 (10.6%) 5 (7.6%) 1 (1.5%) 9 (13.6%) Table 5.2: Helpful Behaviors Observed during Secondary Inspection Interviews Behavior Offering comforting words Friendly joking Small talk Explaining actions Cited Cases referred for z nche 2 aCredible Fear 017 -S 8 (12.1%) 2, 41 (10.4%) eralta P ruary 61 (15.4%) v. eb 14 (21.2%) S (11.2%) U44 A ed on F 3 (4.6%) 96 chiv 16 (24.2%) r (24.3%) All cases in 3a 5039 Most of theNo. 14 characterized as aggressive or intimidating behaviors were behaviors observed relatively infrequently, rarely exceeding ten percent of all cases. Helpful behaviors, on the other hand, were more frequent. In addition, our observers noted a number of occasions where interviewing officers engaged in helpful or comforting behaviors that were not systematically coded in the study. For example, research assistants were particularly impressed with a number of the CBP officers in Miami, who appeared to go to great lengths to make the aliens being interviewed more comfortable. On one occasion, an officer interviewing a pregnant Caribbean woman, appeared particularly sensitive to her physical condition and was both reassuring and helpful. At Newark, officers took special care to explain the Credible Fear process to two African men fleeing ethnic violence, and offered refreshments at several points during the interview. At Houston, an officer took time to discuss personal concerns about removal with a woman from South America. At San Ysidro, the Middle Eastern men (discussed above in Section III) were offered refreshments almost immediately after their arrival in the Secondary Inspection area. However, a number of other aggressive or intimidating behaviors that were not systematically assessed were also noteworthy. For example, while not necessarily inappropriate 27 Some of these behaviors were not reliably coded, either because of ambiguous descriptions or because of exceptionally low frequency, and were excluded from subsequent analyses. 26 Case: 14-50393, 02/07/2017, ID: 10304776, DktEntry: 43-2, Page 187 of 203 for criminal aliens, multiple occasions of shackling aliens being processed for Expedited Removal was observed at JFK. This practice was not observed at any other port of entry during the study period. It should be noted that during the preparation of this report, the CBP New York Field Office informed our staff that CBP has since issued clear guidelines as to the use of physical restraint and that shackling is now extremely rare at JFK. In Houston, there were a number of incidents observed (on videotape) that appeared to reflect frankly inappropriate behaviors. One Central American man was told that he was a “woman,” and a “sissy,” and that he sat “like a girl.” In another incident, also at Houston, an officer referred to an alien who was not in the room as a “motherfucker” to a second officer, but in the presence of another alien who was involved in his own Secondary Inspection interview (which was occurring in English). Of course, it is often difficult to accurately assess the appropriateness of officer behaviors outside of the context in which it occurs. Although not the focus of this study, we also coded aggressive or seemingly inappropriate behaviors on the part of the aliens being interviewed. Although inappropriate behavior on the part of aliens was occasionally noted, these behaviors typically comprised interruptions of the interviewing officers, raised voices, and a demanding tone. We did not observe any aggressive physical behaviors, disruptive behaviors, or threatening behaviors by aliens during the Secondary Inspection interview.28 ez anch , 2017 a-S eralt bruary 2 .P SA v d on Fe in U hive ited C arc 393 -50 o. 14 N 28 It is possible that problematic alien behaviors occurred outside of the Secondary Inspection interview itself. However, our observers, who were present for extended periods of time, did not record any such behaviors. 27 Case: 14-50393, 02/07/2017, ID: 10304776, DktEntry: 43-2, Page 188 of 203 VI. DISCUSSION OF FINDINGS Inspectors who work for the Bureau of Customs and Border Protection are the United States’ first line of defense at the border, charged with the challenge of ensuring that inadmissible aliens are not permitted to enter. At the same time, inspectors are required to ensure that individuals fleeing persecution, including torture, are offered the opportunity to seek protection, in accordance with U.S. laws and treaty obligations toward refugees and asylum seekers. In guidance in implementing Expedited Removal, the Department of Homeland Security (and its predecessor, the Immigration and Naturalization Service) emphasizes to its inspectors the importance of both of these missions: “Because of the sensitivity of the program and the potential consequences of a summary (expedited) removal, you must take special care to ensure that the basic rights of all aliens are preserved, and that aliens who fear removal from the United States are given every opportunity to express any concerns at any point during the process. Since a removal order under this process is subject to very limited review, you must be absolutely certain that all required procedures have been adhered to and that the alien has understood the proceedings against him or her." (Inspector's Field Manual 17.15(a) (2003)." Many inspectors who were observed during this study appeared to take this responsibility very seriously. In one particularly busy port of entry, Miami, in all butz very small number of ea anch , 2017 cases observed, officers consistently demonstrated that most required procedures directly relating ta-S ary 2 to the Credible Fear referral process were adhered eral exception concerned reading sworn to (one .P bru statements back to aliens, a problem area for v ports n Fe SA all d o of entry). In other ports, however, in U was more inspectors’ adherence to these procedures chive variable, with some requirements being ited r C fulfilled the majority of the time 393 a frequently being neglected. and others 0 -5 o. 14 N This study is the first systematic evaluation of the Expedited Removal process utilizing direct observation of Secondary Inspection interviews with arriving aliens. This study attempted to address a number of important issues in the Expedited Removal process, including the extent to which required information is being presented to aliens, whether official documents (e.g., Afiles) accurately recount the Secondary Inspection interview, and whether a significant risk of erroneous removals of aliens who might otherwise qualify for an asylum hearing exist. Shortcomings observed in this study include the frequent failure on the part of CBP officers to provide required information to aliens during the Secondary Inspection interview, occasional failures to refer eligible aliens for Credible Fear interviews when they expressed a fear of returning to their home countries, inconsistencies between the official records prepared by the investigating officers and the observations made by our research team, and on a handful of occasions, overt attempts to coerce aliens to retract their fear claim and withdraw their applications for admission. In a large proportion of cases observed, CBP officers did not provide information contained in the I-867A form to aliens who were being processed. For example, in roughly half of all cases observed, officers did not read the obligatory paragraph informing aliens that U.S. law provides protection to certain persons who face persecution, harm or torture upon return to their home country. These statements are particularly important given that many aliens may not 28 Case: 14-50393, 02/07/2017, ID: 10304776, DktEntry: 43-2, Page 189 of 203 understand the purpose of the Secondary Inspection interview and may not realize that this interview is their primary, if not sole opportunity to express concerns or seek asylum. The importance of these paragraphs is evident in the association between providing the I-867A information and referral for a Credible Fear interview, as individuals who did not receive this information were significantly less likely to be referred for a Credible Fear interview. Although far less common, the finding that CBP officers did not specifically inquire about fear of returning to their country in approximately five percent of the cases observed may be of even greater concern. Given the potential importance of these questions in eliciting aliens’ fears, it is unclear why some officers would fail to ask these questions. Particularly given the length of time typically used in Secondary Inspection interviews at the airports, the failure to ask these important and mandatory questions is simply inexplicable. Not surprisingly, the likelihood of a Credible Fear referral increased with each of the fear questions asked. If officers fail to provide an explanation and opportunity for aliens to express their concerns, this crucial step in the asylum process may not occur. Even when the alien expressed a fear of return, referral for a Credible Fear interview was not guaranteed. One in six aliens who expressed a fear of return during the Secondary Inspection interview were placed in Expedited Removal or allowed to withdraw their application for admission. However, understanding the failure to refer aliens who expressed fear is complicated by the apparently conflicting positions expressed in different CBP guidelines. While some DHS ez regulations (8 CFR 235.3(b)(4)) indicate that any alien who expresses a fear must be referred for anch , 2017 a-S a credible fear interview, the Inspectors’ Field Manual linstructs that the case should not be era t bruary 2 P is e referred if “the alien asserts a fear or concernv. F SA whichonclearly unrelated to an intention to seek in U hiv of the asylum or a fear of persecution.” Indeed, many ed cases that we observed in which an alien c Cited appeared expressed fear but was not referred93 ar to be “unrelated to an intention to seek asylum” 3 (e.g., cases in which the alien50 4- expressed primarily economic concerns29). On the other hand, we o. 1appeared to be unequivocal cases of CBP error, returning precisely the N observed some cases that sort of individuals that U.S. policy is designed to protect (e.g., a South Asian man who expressed fear of retaliation from religious fundamentalists because of his political affiliation). Although we would not deign to assess the credibility of the claims made by these individuals, it is clear that clarity is needed within CBP as to precisely when referral for a Credible Fear interview is warranted. When only the cases of fears voiced in Secondary Inspections that clearly fell into categories set out by asylum law were analyzed, we found an error rate of 3.4 percent, suggesting that a substantial number of individuals seeking asylum risk being returned, despite expressing a fear of return precisely as they are required (this rate increased to 7.2 percent when cases in which the nature of fear was not articulated were included). In essence, these findings suggest that some CBP officers make de facto assessments of the legitimacy of expressed fears, returning aliens that they perceive to be inappropriate and referring those that they perceive as warranting asylum (including two individuals who did not express any fear, but were from countries where legitimate fears are common). These practices suggest an important gap in the Expedited Removal process that should be addressed. However, even with absolute clarity regarding the procedures and policies (as apparently exists for the reading of the I-867 paragraphs and 29 However, we should note that economic hardship may occur within a broader context of persecution, as acknowledged by the USCIS Credible Fear Manual: “The statement by an applicant that ‘I left my country because I can’t work’ is insufficient to judge the merits if a case and should lead to further inquiry.” (Eligibility, Part I, p. 24) 29 Case: 14-50393, 02/07/2017, ID: 10304776, DktEntry: 43-2, Page 190 of 203 questions), our data suggest that errors will likely remain, albeit perhaps less frequently. The lack of congruence between the observations of our research assistants and the official records prepared by the investigating officers (A-files) suggests that the asylum process itself may be compromised by the use of these documents as official transcripts. We found that when CBP officials failed to ask the relevant fear questions, the official record frequently indicated that these questions had been asked and answered, typically containing just the word “no” in response to fear questions that had not been asked. Likewise, on some occasions the Afiles did not indicate that the relevant questions had been asked (i.e., were left blank) when our observers noted that they had been, or contained only a portion of the information that had been disclosed in response to a given question. These discrepancies, however, only reflect the most simplistic level of analysis, since the A-files might have provided incorrect information in many more cases but could not be detected because of our inability to simultaneously observe Secondary Inspection interviews and compare them with A-files. Nevertheless, these data demonstrate that A-files do not necessarily present an accurate record of Secondary Inspection interviews, despite the temptation to assume their accuracy. This issue is particularly important given the evidence observed in other studies in this report that the content of A-files is relied upon during the Credible Fear interview and subsequent Asylum hearings. Officials may present statements from the Secondary Inspection interview as evidence to impeach an aliens’ testimony, citing contradictions between their statements and the official records as evidence of a changing story (see Jastram and Hartsough, A-file and Record of Proceeding Analysis of Expedited ez anchrecord. 017 Removal, this report), when the “evidence” is an erroneousS lta- official 2, 2 ry ra v. Pe n Februa A The safeguard against inaccurate A-file records, asking aliens to attest to the accuracy of in USashived o implemented. Roughly one in six cases in their statements, also appears ed Cit inadequaterc currently a which statements were taken 50CBP officers and recorded in A-files were not confirmed by by 393 14aliens, despite the presence of signatures in the required place. When they were asked to confirm No. their statements, most aliens were neither asked to read the statements, nor had their statements read to them, but were simply told to sign forms. Aliens were often told to sign documents with little or no explanation of what they were signing or what the implications might be, and in most cases these documents were written in a language they were not able to read (English). Failure to confirm statements was more common in cases where the individual was referred for Credible Fear interviews, despite the fact that these statements have the potential to be used in subsequent Asylum Interviews and Hearings. It is impossible to know how the presence of our observers influenced the behavior of CBP officers. It certainly seems likely that compliance with required policies could be greater and inappropriate behaviors would be fewer when observers were monitoring their interviews. Thus, the rates of problems observed in this study likely underestimate the actual rate of problem behaviors and failures to adhere to established policies. We attempted to investigate the effect of our presence by comparing cases in which live observation was used to those in which videotaped interviews were reviewed. In this analysis, when the data from San Ysidro were excluded (since the border crossing is quite different in many respects from the airports), although different rates of reading required material remained, we found no significant differences in the rates of failure to ask required questions, or the frequency of referrals for a Credible Fear interview. This may reflect the fact that 24-hour video surveillance of the 30 Case: 14-50393, 02/07/2017, ID: 10304776, DktEntry: 43-2, Page 191 of 203 interview rooms is not markedly different than live observation, indicating that both are vulnerable to the Hawthorne effect (where observers, by their mere presence, influence the behavior under investigation). Alternatively, officers may simply have behaved as they normally do, despite the presence of our research team. If so, the port-by-port variation observed in some variables may reflect differences in the training and supervision practices across ports. Ultimately, of course, we cannot know what the behavior of officers would be like without any form of observation. Nevertheless, given that it is virtually unimaginable that officers would have deliberately violated policies or required procedures more often while being monitored, it is likely that our observations represent some degree of underestimation of the problems observed in this study. Perhaps most surprising is that, despite the presence of researchers observing Secondary Inspection interviews, our observers witnessed a number of incidents of seemingly serious problem behaviors. For example, our observers noted that on more than one occasion aliens were refused interpreters at Houston, even when they requested them. The report that aliens who claimed to have expressed a fear of persecution were initially turned away at the San Ysidro border crossing is an additional concern. In addition, aggressive or hostile interview techniques, sarcasm and ridicule of aliens, and verbal threats or accusations, while not common, were not infrequent in our sample. The fact that these behaviors occurred while observers were present suggests that such behavior may not even be perceived as problematic by some CBP officers. ez anch , 2017 a-S eralt bruary 2 .P In addition to the possibility that officer behaviorFe adherence to policies improved SA v d on and U simply because our research team iwas present, a number of methodological issues limit the ed n a chi e itPerhaps thermostvsignificant issue pertains to sample size. Although C conclusiveness of this study. 393 our initial intent was to have-researchers present in each site for three to four months, USCIRF 4 50 .1 and CBP agreed toNo limitations in terms of both the volume of research staff that could be present Study Limitations as well as the length of time that study investigators could remain in each site. Thus, many of the study sites yielded an inadequate sample to permit reliable comparisons across sites or to allow for an accurate estimate of the prevalence of problems observed. Estimates of the frequency with which aliens are removed despite having expressed a seemingly legitimate fear are thus limited (particularly when only the airport study sites are considered). Nonetheless, this study represents the largest systematic analysis of the Expedited Removal process and the only study to apply a multi-method approach to these important issues. A second limitation to our study concerns the small number of Visa Waiver Program (VWP) refusal cases that were observed by our researchers. Our initial intent was to systematically analyze this subset of VWP cases along with ER cases, particularly because of our expectation that individuals with a legitimate asylum claim may enter the U.S. with documentation from a VWP country. That we observed three (of 19) VWP cases in which aliens were referred for an “asylum only” hearing to determine the legitimacy of their claim offers some support for this belief. However, the small number of VWP cases observed was inadequate to reliably assess the frequency with which this occurs or whether different problems exist in the processing of ER and VWP cases. Further research focusing specifically in VWP cases is necessary to clarify differences and similarities between these types of cases. 31 Case: 14-50393, 02/07/2017, ID: 10304776, DktEntry: 43-2, Page 192 of 203 Another limitation in the present study was our reliance on live observations or one-time viewings of videotaped observations for most aspects of data collection. Our original intent was to videotape all Secondary Inspection interviews at all ports of entry during the study periods (i.e., to install cameras in those ports that did not already videotape and to archive videotapes in ports that already routinely videotape).30 We also hoped to retain these videotapes after completion of the study, in order to permit re-analysis of the data whenever questions or important findings occurred. Such a method would have allowed, among other things, for a more detailed analysis of the accuracy of A-files, as well as help resolve observations that our researchers were unsure how to code. Although our inter-rater reliability data indicated that our researchers were quite consistent in their application of our coding system, reliability would have been further improved by the availability of videotapes (i.e., to review interactions that occurred too rapidly for the observer to perceive or when translation issues made comprehension difficult). Unfortunately, DHS administrators did not approve our request to videotape in advance of our required study timeline.31 At some sites, CBP officers themselves imposed additional study limitations. The most notable example was in Houston, where CBP officials were initially quite receptive.32 Once data collection began, however, Houston CBP officers were less cooperative. Early in the data collection process it became clear that many aliens had been interviewed in the Secondary Inspection area but that CBP staff had not notified our research assistants. This omission was ez brought to the attention of the Chief, and we were permitted to nch in 2017 for an a remain , Houston a-S additional week of data collection. However, our research assistants were still not informed when eralt bruary 2 .P aliens were present to be interviewed, resulting in only four post-inspection interviews during the SA v d on Fe 4-week study period in whiched in U aliens were processed. Moreover, our researchers dozens of hive Cit hostile behaviors, including one incident where a CBP supervisor arc described a number of overtly 393 assistant, grabbing her arm and escorting her from an -5 a attempted to physically remove0 research o. 14 designated as open to our personnel. Although it is not clear how N area that had been previously or if this tension impacted our study findings, it is possible that this small sample of interviews with aliens arriving at Houston was not representative of all arrivals to this port. Data collection at JFK was also limited, largely by the structure of the Secondary Inspection facilities. Because JFK utilizes a counter with several interview stations, and processes a large volume of cases of which Expedited Removal cases comprise only a small subset, we were unable to determine which among the many cases in Secondary Inspection were Expedited Removal interviews. These logistical difficulties preclude us from drawing any conclusions about the frequency of behaviors or problems at JFK. 30 Although Houston and Atlanta routinely videotape each Secondary Inspection interview, these videotapes are only archived for 2-3 months and then taped over. We requested these ports maintain copies of the videotapes our researchers reviewed, in case further review was desired, but we were not permitted to retain copies ourselves. 31 CBP officials eventually approved videotaping but not until two months after data collection had begun and our time constraints did not permit the application of this technology (i.e., we were unable to install and test equipment in the limited time left for data collection). 32 During the study design phase, Houston CBP staff allowed us to pilot our measurement instruments on videotaped Secondary Inspections and provided our research team with suggestions on how to best coordinate file review and live observations. 32 Case: 14-50393, 02/07/2017, ID: 10304776, DktEntry: 43-2, Page 193 of 203 A final limitation concerns the prohibition to measure the opinions of the CBP officers themselves. As those charged with carrying out the credible fear referral provisions of Expedited Removal policy, it may be that there are some officers who rely on their opinions of asylum and asylum seekers rather than the provisions as set forth in regulations. While our researchers reported that most of the officers they encountered were professional and did not seem to let preconceptions about the legitimacy of the asylum process or asylum seekers affect their work, further research addressing officer knowledge, attitudes and behaviors and the relationship between Expedited Removal practices would be helpful. Conclusions Our findings suggest that when procedures are followed, appropriate referrals are more likely to be made. These findings present a picture of a system that, with several notable exceptions, generally seems to function by the rules set out for it. This conclusion is applicable to each port of entry in our study to varying degrees. Research assistants often expressed admiration for officers who were able to balance the twin duties of interrogating aliens without proper documents and then providing protection to them when necessary. This conflicting dual nature of CBP officers’ role in the Expedited Removal process cannot be stressed enough, and it is with appreciation for the difficulty of this job, particularly in an era of heightened awareness and need for vigilance against international terrorism, that these findings are presented. While we cite shortcomings in the implementation of Expedited Removal, it is our hope that these ez observations will be perceived not as a criticism of CBP Inspectors, but as encouragement to anch , 2017 -S 2 better enforce those rules which are clear, and to more lta era clearlyrarticulate those which are not. uary Pthe Department of Homeland Security, in v eb This is particularly important with the creation. of on F USA ed many individuals who formerly worked as in which INS inspection duties are being absorbed by v Cited 93 archi Customs or Agricultural inspectors. 503 . 14-a number of strengths and several disconcerting weaknesses in the No This study identified Expedited Removal process concerning Credible Fear referral. Many ports employed practices which, if adopted by other ports, may result in much better compliance with CBP rules and reduce the chances that asylum seekers are returned to places where they may face persecution. For example, in Houston and Atlanta, the practice of videotaping all secondary inspections was associated with a higher tendency to comply with the requirement of explaining the Expedited Removal process to the alien, as articulated on the Form I-867A. In Atlanta and Los Angeles, the use of professional on-site interpreters was noteworthy, and may reduce the likelihood of communication problems during the interviews. Given that some asylum seekers come to the U.S. bearing documentation from Visa Waiver Program countries, the practices described by Newark and JFK personnel, in which all Visa Waiver Program cases are asked fear questions, appear appropriate and useful in identifying possible asylum seekers. Despite the high volume and short amount of time allotted for Secondary Inspection interviews, many San Ysidro officers were more diligent than some of those at airports. Finally, Miami International Airport deserves further study as a model. Without employing any of the above tools, Miami was much more compliant than any other port of entry in following the rules to ensure that asylum seekers are identified, and that aliens subject to Expedited Removal understand the nature of the proceedings. 33 Case: 14-50393, 02/07/2017, ID: 10304776, DktEntry: 43-2, Page 194 of 203 As is clear in this report, DHS procedures designed to identify and refer asylum seekers subject to Expedited Removal are not always followed by immigration inspectors. Since these procedures are not always followed, it is impossible not to conclude that some proportion of individuals with a genuine asylum claim are turned away. Given the vulnerable nature of many aliens who seek asylum in the U.S., adherence to established protocol should be a minimum requirement. ez anch , 2017 a-S eralt bruary 2 .P SA v d on Fe in U hive ited C arc 393 -50 o. 14 N 34 Case: 14-50393, 02/07/2017, ID: 10304776, DktEntry: 43-2, Page 195 of 203 REFERENCES CITED American Bar Association Commission on Immigration and the Leadership Conference on Civil Rights Education Fund (ABA), "American Justice Through Immigrants' Eyes", 2004. Link: http://www.abanet.org/publicserv/immigration/Due_Process.html Department of Homeland Security, Bureau of Customs and Border Protection (CBP), Inspector's Field Manual (M-450), Chapter 17.15 (September 2003). Lawyers Committee for Human Rights, "Is this America - The Denial of Due Process to Asylum Seekers in the United States" (October 2000). Letter to Mark Hetfield, USCIRF, from Phillip Huang, Staff Attorney, Lawyers Committee for Civil Rights of the San Francisco Bay Area (July 8, 2004). Regulations: 8 CFR 235.3 (2004). United Nations High Commissioner for Refugees (UNHCR), “Study of the U.S. Expedited Removal Process: Report to the U.S. Department of Homeland Security” (24 October 2003) (Unreleased). hez 17 United States General Accounting Office (GAO), Report toSanc a- Congressional Committees: 2, 2 tExpedited rRemoval0Process y ILLEGAL ALIENS Opportunities Exist to Improve ral the v. Pe n Februa (GAO/GGD-00-176) (September 1, 2000). o USA in ed ited rchiv C 3a 5039 14No. 35 Case: 14-50393, 02/07/2017, ID: 10304776, DktEntry: 43-2, Page 196 of 203 APPENDICES Appendix A: Demographic characteristics of samples # Observed Valid % # Interviewed Valid % # File Valid % Gender Male Female 237 167 58.7 41.3 110 84 56.7 43.3 253 182 58.2 41.8 Africa Americas Asia Europe Pacific Islands 13 332 49 9 1 3.2 82.2 12.1 2.2 .2 9 160 20 5 4.6 82.5 10.3 2.6 15 358 52 9 1 3.4 82.3 12.0 2.1 .2 Black White Asian Native Am. Mestizo 49 256 38 9 44 12.4 64.6 9.6 2.3 11.1 Not Latino Latino 117 286 29.0 71.0 Region of Origin Race: Latino ethnicity Marital status Religion ez anch , 2017 S alta- ruary 2 Single 93 48.2 . Per120 b 61.9 Married A 100 51.8 v 74 Fe 38.1 in US hived on ited arc Buddhist C 6 3.1 393 Christian 162 83.9 50 4Hindu. 1 4 2.1 No Jewish 7 10 4 6 3.6 5.2 2.1 3.1 81 50 29 23 7 42.0 25.9 15.0 11.9 3.6 3 Muslim None Other 1.6 Education No High School High School Some College College Degree Graduate/Professional Degree No Education Case outcome Credible Fear referral Expedited Removal Withdrawal Mean age (SD) 67 241 96 16.6 59.7 23.8 33.3 (10.7) 50 102 42 36 25.8 52.6 21.6 34.0 (11.1) 69 261 105 15.9 60.0 24.1 Case: 14-50393, 02/07/2017, ID: 10304776, DktEntry: 43-2, Page 197 of 203 Appendix B: Participant cases versus non-participant cases Houston Not observed/interviewed Frequency Valid Percent 0 0.0 3 10.3 26 89.7 29 100.0 Case outcome Credible Fear referral Expedited Removal Withdrawal Total Observed/Interviewed Frequency Valid Percent 2 7.4 11 40.7 14 51.9 27 100.0 The case outcomes between the two samples were significantly different33. Specifically, in our sample there were more Expedited Removal cases and fewer Withdrawals. In addition, there were two Credible Fear referral cases in our sample. Gender Male Female Total Not observed/interviewed Frequency Valid Percent 19 65.5 10 34.5 29 100.0 Observed/Interviewed Frequency Valid Percent 19 70.4 8 29.6 27 100.0 Gender between the two samples did not differ. Age Mean 32.86 hez 017 Std. Deviation 2, 2 11.00 Std. Deviation Mean anc ta-S32.70 ry 11.04 eral a .P bru SA v d on Fe These samples did not differ tbyd in U age. ve Ci e 93 archi 503 Not observed/interviewed Observed/Interviewed . 14Global Region No Frequency Valid Percent Frequency Valid Percent Africa Americas Asia Total 1 22 6 29 3.4 75.9 20.7 100.0 1 22 4 27 3.7 81.5 14.8 100.0 Global region of origin did not differ between the two samples. John F. Kennedy Case outcome Credible Fear referral Expedited Removal Withdrawal Total Not observed/interviewed Frequency Valid Percent 18 11.4 94 59.5 46 29.1 158 100.0 Observed/Interviewed Frequency Valid Percent 1 7.7 11 84.6 1 7.7 13 100.0 The case outcomes between the two samples were not significantly different. 33 ²=10.14, p < .01 37 Case: 14-50393, 02/07/2017, ID: 10304776, DktEntry: 43-2, Page 198 of 203 Gender Male Female Total Not observed/interviewed Frequency Valid Percent 100 63.3 58 36.7 160 100.0 Observed/Interviewed Frequency Valid Percent 9 69.2 4 30.8 14 100.0 Gender between the two samples did not differ. Age and global region information was not available from JFK records. Los Angeles Case outcome Credible Fear referral Expedited Removal Withdrawal Total Not observed/interviewed Frequency Valid Percent 21 29.6 22 31.0 28 39.4 71 100.0 Observed/Interviewed Frequency Valid Percent 9 33.3 11 40.7 7 25.9 27 100.0 Case outcome between the two samples did not differ. Gender, age, and global region information was not available from Los Angeles records. Miami ez anch , 2017 a-S eralt bruary 2 .P Not observed/interviewed n Fe SA v d o Observed/Interviewed in U Case outcome Frequency Validve i Percent Frequency Valid Percent ited96 arch22.0 C Credible Fear referral 38 34.5 93 Expedited Removal -503 176 40.3 38 34.5 14 165 Withdrawal 37.8 34 30.9 No. Total 437 100.0 110 100.0 The proportion of Credible Fear cases among those we interviewed was higher than among those we did not interview34. Gender Male Female Total Not observed/interviewed Frequency Valid Percent 262 60.0 175 40.0 437 100.0 Observed/Interviewed Frequency Valid Percent 55 50.0 55 50.0 110 100.0 Gender between the two samples did not differ. Age Mean 36.10 Std. Deviation 12.54 These samples did not differ by age. 34 ²=7.55, p < .05 38 Mean 35.72 Std. Deviation 11.77 Case: 14-50393, 02/07/2017, ID: 10304776, DktEntry: 43-2, Page 199 of 203 Global Region Africa Americas Asia Europe Total Not observed/interviewed Frequency Valid Percent 4 0.9 386 88.3 36 8.2 11 2.5 437 100.0 Observed/Interviewed Frequency Valid Percent 0 0 96 87.3 11 10.0 3 2.7 110 100.0 The two samples did not differ with regards to global region of origin. San Ysidro Case outcome Credible Fear referral Expedited Removal Withdrawal Total Not observed/interviewed Frequency Valid Percent 9 1.7 531 98.2 1 0.2 541 100.0 Observed/Interviewed Frequency Valid Percent 13 6.8 168 88.0 10 5.2 191 100.0 The two samples differed by case outcome35, with higher proportions of Credible Fear referrals and Withdrawals among the group we observed or interviewed. Gender Male Female Missing Total Not observed/interviewed Observed/Interviewed Frequency Valid Percent Frequency ez Valid Percent 17 anch 295 62.5 ta-S 117ary 2, 20 61.3 l 177 37.5 Pera 74 38.7 u v. Febr 0 A 69 0.0 US 100.0ed on 541 ted in 197 100.0 hiv Ci arc 393 0 The two samples did not 14-5 on gender, although missing data on the group that was not differ o. may have biased this finding. N observed or interviewed Age Mean 29.82 Std. Deviation 9.13 Mean 30.78 Std. Deviation 9.61 These samples did not differ by age. Global Region Africa Americas Asia Europe Pacific Islands Total Not observed/interviewed Frequency Valid Percent 1 0.2 530 98.0 7 1.3 2 0.4 1 0.2 541 100.0 Observed/Interviewed Frequency Valid Percent 4 2.0 179 93.4 8 4.1 0 0.5 0 0.0 191 100.0 The two samples differed by global region of origin36, with a higher proportion of cases from Latin America among those we did not observe or interview. 35 36 ²= 37.95, p < .001 ²= 14.68, p < .01 39 Case: 14-50393, 02/07/2017, ID: 10304776, DktEntry: 43-2, Page 200 of 203 Appendix C: Data analyses excluding San Ysidro (Tables correspond to tables in the report) Table 2.1a: Information conveyed and questions asked from the I-867A and B forms Observation Read or Paraphrased Not Read 158 (80.6%) 38 (19.4%) 151 (76.6%) 46 (23.4%) 147 (74.6%) 50 (25.4%) 168 (91.3%) 16 (8.7%) 173 (94.0%) 11 (6.0%) 167 (91.3%) 16 (8.7%) 196 (95.1%) 10 (4.9%) Obligatory Statements I867A 2nd paragraph I867A 3rd paragraph I867A 4th paragraph Why did you leave...? Do you have any fear...? Would you be harmed..? At least one fear question asked Table 2.2a “Why did you leave…” Question observed Total yes no Question in file yes no 158 (97.5%) 4 (2.5%) 13 (81.3%) 3 (18.8%) 171 7 Total 162 16 178 Table 2.3a “Do you have any fear…” Question observed Total yes no Question in file yes no 165 (98.8%) 2 (1.2%) 8 (72.7%) 3 (27.3%) 173 5 Total 167 ez 11 anch , 178 -S lta y2 r ra v. Pe n Februa A Table 2.4a “Would you be harmed…” S U do ed in file itQuestion inarchive Total C yes no 0393 2 (1.2%) Question yes 160 4-5 (98.8%) 162 1 N . observed no o 11 (73.3%) 4 (26.7%) 15 Total 171 6 2017 177 Table 2.6a: Association between 3rd paragraph (“This may be your only opportunity to present information…”) and referral for Credible Fear37 Read 3rd paragraph Not read 3rd paragraph Referred 44 (29.1%) 8 (17.4%) Not referred 107 (70.9%) 38 (82.6%) Table 2.7a: Association between reading the 4th paragraph (“US law provides protection…”) and referral for Credible Fear38 Read 4th paragraph Not read 4th paragraph 37 38 Referred 43 (29.3%) 9 (18.0%) Not referred 104 (70.7%) 41 (82.0%) ²= 2.51, p = .11, OR = 1.95 ²= 2.43, p = .12, OR = 1.88 40 Case: 14-50393, 02/07/2017, ID: 10304776, DktEntry: 43-2, Page 201 of 203 Table 2.8a: Fear inquired about directly by officer39 Referred 49 (26.2%) 1 (12.5%) 1 (10.0%) "Fear" and "Harm" asked "Fear" or "Harm" asked Fear not asked Not Referred 138 (73.8%) 7 (87.5%) 9 (90.0%) Table 2.9a: Observed being asked to confirm statements No Yes Total Frequency 52 143 195 Valid Percent 26.7 73.3 100.0 Table 2.10a: Confirming statements and Referral for Credible Fear Asked to confirm Not asked to confirm Referred 34 (72.3%) 13 (27.7%) Not referred 109 (73.6%) 39 (26.4%) Table 2.11a: Were the statements read and by whom: Observational sample. Alien read statements Interpreter read statements Officer read statements Statements not read Total Frequency 32 36 22 105 195 Valid Percent 16.4 18.5 11.3 54.1 100.0 63 4 4 3 29 8 111 56.8 3.6 3.6 2.7 26.1 7.2 100.0 ez anch40 , 2017 Table 3.1a: Expressing fear and referral for Credible alta-S Fear Interview 2 u Per Not referred ary Referred A v. on4Febr Fear expressed 54n US (93.1%) (6.9%) d i No fear expressed ited 2 (1.3%)rchive 153 (98.7%) C 3a 5039 happen to them next Table 4.1a: Aliens’ reports4- what will 1 of No. Frequency Valid Percent Will be removed Will be detained Will have another interview Nothing will happen Do not know Other Total 39 40 rs = .10, p = .16 ²= 183.60, p < .0001, OR = 1032.75 41 Case: 14-50393, 02/07/2017, ID: 10304776, DktEntry: 43-2, Page 202 of 203 Table 5.1a: Aggressive or Intimidating Behaviors Observed during Secondary Inspection Interviews Behavior All cases Raising voice Interrupting Grabbing/threatening touches Accusations Verbal threats Sarcasm/Ridicule Being demanding Standing over alien Leaving room without explanation 35 (16.4%) 35 (16.4%) 1 (0.5%) 25 (11.7%) 18 (8.5%) 30 (14.1) 33 (15.4%) 9 (4.2%) 58 (27.1%) Cases referred for Credible Fear 13 (24.1%) 10 (18.5%) 0 3 (5.6%) 1 (1.9%) 7 (13.0%) 5 (9.3%) 1 (1.9%) 9 (16.7%) Table 5.2a: Helpful Behaviors Observed during Secondary Inspection Interviews Behavior All cases Offering comforting words Friendly joking Small talk Explaining actions 33 (15.4%) 48 (22.4%) 33 (15.5%) 75 (35.0%) Cases referred for Credible Fear 7 (13.0%) 11 (20.4%) 2 (3.8%) 16 (29.6%) ez anch , 2017 a-S eralt bruary 2 .P SA v d on Fe in U hive ited C arc 393 -50 o. 14 N 42 Case: 14-50393, 02/07/2017, ID: 10304776, DktEntry: 43-2, Page 203 of 203 Appendix D: Aliens who expressed a fear and were not referred Port of Gender Entry Newark female Miami male Houston female Houston female San Ysidro San Ysidro San Ysidro San Ysidro San Ysidro San Ysidro San Ysidro San Ysidro male male male male male female male male Fear expressed to Fear recorded in file Region of officer origin South Economic Hardship no America South Economic Hardship no America Central Not specific no America Fears ex-husband Fears ex-husband Central (Social Group) America Central Not Specific no America Central Police will harass him “Yes, on the border America at border (Other) because of police” East Asia Economic Hardship no Port of Gender Entry Newark female West Africa male Miami female Miami male Miami female JFK male JFK male San Ysidro San Ysidro San Ysidro female female male Expedited Removal Expedited Removal Withdrawal Withdrawal Expedited Removal Expedited Removal Expedited Removal Central Scared of government “It could be possible” Expedited Removal America (Not Specific) Central Economic Hardship “Yes, there’s no jobs Expedited Removal America back home” Central Ill child in US (Other) “My daughter is sick” Expedited Removal America South Asia Threats by no Expedited Removal ez fundamentalist anch , 2017 a-S political party eralt bruary 2 (Political Persecution). P v Fe Central Does not know Expedited Removal USA ed onno n America ited i (Other)hiv Mexico c r C 93 a 3expressed to 0 Region of 4-5 Fear o. 1 researcher only origin N Miami Case Outcome Fear recorded in file Case Outcome Passport problems (Other) Economic Hardship no Withdrawal no Expedited Removal Not specific no Expedited Removal Economic Hardship no Expedited Removal Ill child in US (Other) no Expedited Removal Police would learn about US immigration case (Other) Caribbean Economic Hardship no Expedited Removal no Expedited Removal Economic Hardship no Withdrawal Economic Hardship no Expedited Removal Economic Hardship no Expedited Removal South America South America South America South America South America Central America South America Central America 43

Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.

Why Is My Information Online?