ACLU Comments on INS Notice to Expand Expedited Removal

December 13, 2002
Director, Regulations and Forms Services Division
Immigration and Naturalization Service
425 I Street, NW, Room 4034
Washington, DC  20536 

Re:      INS Order No. 2243-02

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Comments on ""Notice Designating Aliens Subject to Expedited Removal Under Section 235(b)(1)(A)(iii) of the Immigration and Nationality Act."" 

On behalf of the American Civil Liberties Union (ACLU) and its approximately 330,000 members, we submit the following comments urging the Immigration and Naturalization Service to withdraw the above-referenced notice published in the Federal Register on November 13, 2002.[1]  The ACLU is a non-profit, non-partisan organization dedicated to preserving the freedoms and civil liberties of everyone in America, including immigrants and other non-citizens, as set forth in the Constitution and the Bill of Rights.

The notice designates certain non-citizens who have arrived by sea as many as two years ago as subject to expedited removal from the United States.  It extends to those non-citizens who arrived by sea without being admitted or paroled, but who have lived continuously in the United States for as long as two years, to removal from the United States using the same cursory procedure that is currently used only with respect to non-citizens who arrive at a port of entry without proper documents or whom an immigration inspector suspects of having improper or fraudulent documents.  Cuban migrants who arrived by sea will not be subject to expedited or other forms of removal.

The new policy will be directed at migrants who have arrived by sea, often from Haiti, almost always in desperate circumstances.  Haitian and other non-Cuban migrants' rights to apply for asylum and to due process of law will thereby be curtailed.  As a result, the policy will seriously exacerbate the existing concern in the Haitian community about disparate and unfair treatment of Haitian migrants, especially as compared to Cuban migrants who are exempted from the new policy and will still be subject to the so-called ""wet foot, dry foot"" policy.  Under that policy, Cubans who survive a hazardous sea voyage and arrive on United States soil without being legally admitted are permitted to remain in the United States pursuant to the Cuban Adjustment Act, Pub. L. No. 89-732 (1966).  While the notice is correct that the Cuban Adjustment Act reflects a Congressional judgment that Cubans, unlike other nationalities, should be allowed to remain in this country without showing an individualized fear of persecution, that Congressional policy does not support curtailing the rights of non-Cubans even further.  Implementation of the policy of ""expedited removal"" and mandatory detention for Haitian and other sea migrants - in contrast to the current removal process which affords a full immigration judge hearing and permits discretionary release from detention - has not been mandated by Congress.  The proposed policy will exacerbate both the appearance and reality of a discriminatory policy towards Haitians and other non-Cuban migrants.  On this ground alone, the policy should be rejected.  But expanding expedited removal is both unconstitutional and bad policy regardless of which group will suffer as a result.

Expedited removal, enacted as part of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRAIRA), currently permits the expulsion, without further review and without a hearing, of individuals who arrive at the border without valid travel documents.[2]  The implementation of this policy has had a devastating effect on the ability of genuine refugees to find safety in the United States.  Individuals who are fleeing persecution often are unable to obtain valid travel documents, either because they are in immediate fear for their lives or because obtaining such documents requires the permission of the very government officials responsible for their persecution.  Moreover, even individuals who arrive with facially valid documents, showing they are United States citizens, permanent residents, or have already been granted asylee or refugee status in the United States, may be sent back without a fair hearing and without review solely on the suspicion of an immigration inspector that the documents they present are not genuine.

Individuals who express an intent to apply for asylum or a credible fear of persecution are supposed to be referred to a hearing before an asylum officer, with review by an immigration judge.  However, many do not reach that stage.  If an arriving individual does not possess valid travel documents, or if a front-line inspector believes that the documents presented are not genuine, the arriving individual is immediately referred to secondary inspection.  At that stage, the decision of an immigration inspector, with the approval of an immediate supervisor, that the individual does not have a fear of persecution or other right to remain in the United States results in that person's immediate expulsion from the country.

Genuine refugees, who are often weary and traumatized, find it difficult to discuss their experiences upon arrival, particularly if they have suffered physical and sexual abuse.  Yet under expedited removal, refugees are expected to persuasively articulate their fears of persecution, without counsel or other assistance, in a brief interview at a port of entry.  If refugees are unable to do so to the satisfaction of harried and often overworked immigration inspectors, they will be immediately returned to the country which has persecuted them, without an interview with a trained asylum officer or a fair hearing before an immigration judge.

Expedited removal, when it was enacted in 1996, represented a dramatic assault on the due process rights afforded to asylum-seekers and other individuals arriving in the United States.  Prior to the creation of expedited removal, only an immigration judge had the authority to order individuals finally removed from the country in an exclusion proceeding.  Expedited removal granted extraordinary and unprecedented power to low-level immigration officers to remove individuals without review and without a fair hearing.

Supporters of expedited removal argued the protections historically afforded to individuals in exclusion proceedings were not required by the Constitution.   The Supreme Court has long held that, while the government may not deport long-term residents without due process, individuals arriving at the border are not entitled to the same protections.  See, e.g., Zadvydas v. Davis, 121 S. Ct. 2491, 2500 (""It is well established that certain constitutional protections available to persons inside the United States are unavailable to aliens outside of our geographic borders."")  Nevertheless, a court might well find that a removal process which creates a high risk that individuals will be sent back to face persecution offends the Constitution.  Because of this, supporters of expedited removal ensured that the federal courts would not have jurisdiction to hear such a challenge.[3]

Expanding the policy of expedited removal to individuals who arrived by sea and have been living in the United States for as long as two years would greatly exacerbate the constitutional problems already associated with expedited removal as it is currently practiced.  Under the ""entry doctrine,"" the courts have treated limitations on procedural due process in exclusion proceedings as permissible only because of the legal fiction that non-citizens on the threshold of entry, are treated, for constitutional purposes, as if they were ""outside our geographic borders,"" Zadvydas, 121 S. Ct. at 2500, and thus not entitled to due process protections regarding their admission beyond what Congress has ordained.  A court may well conclude that regarding a non-citizen who has arrived without inspection by sea but has lived in the United States for as long as two years as not having ever arrived at all simply stretches that legal fiction too far.  

As the Zadvydas Court stated plainly, ""But once an alien enters the country, the legal circumstance changes, for the Due Process Clause applies to all 'persons' within the United States, including aliens, whether their presence here is lawful, unlawful, temporary, or permanent.""  And the Supreme Court also quoted, with approval, the description of the ""entry doctrine"" contained in Shaughnessy v. United States ex rel. Mezei, 345 U.S. 206, 212 (1953): ""[A]liens who have once passed through our gates, even illegally, may be expelled only after proceedings conforming to traditional standards of fairness encompassed in due process of law"" (emphasis supplied).  To treat non-citizens who have arrived by sea and have lived for as long as two years as not having ""passed through our gates"" would be a major, and in our view, unwarranted and dangerous, expansion of the legal fiction of the ""entry doctrine.""

Even if the policy were ultimately found to be constitutional as applied to this new group of non-citizens, expedited removal should in any event not be expanded.  Supporters of expedited removal argued that the Immigration and Naturalization Service (INS) could administer expedited removal without sending back genuine refugees to persecution or violating the rights of United States citizens or residents accused of having false documents.  Experience has proven these predictions wrong.  Expedited removal, in practice, has been a disaster.

In May 2001, the Immigration Subcommittee of the Senate Judiciary Committee heard the harrowing stories of refugees who had fled persecution in Congo, Tibet, Sierra Leone and other countries, only to be subjected to further mistreatment when they arrived in the United States.  Individuals were ordered removed, despite their attempts to express their fears and to apply for asylum.  In some cases, refugees who were later granted asylum only managed to escape deportation by pleading with airline officials, through intervention by desperate relatives, or by managing to contact human rights organizations or members of Congress.

Just a few of these stories, drawn from the testimony received at the subcommittee hearing, demonstrate that something is terribly wrong with expedited removal:

  • ""Mr. A,"" an Algerian refugee, faced persecution from Islamic extremists for his refusal to participate in a plot to kill his employer, the former Algerian president.  After arriving in San Francisco International Airport on a flight from Shanghai, China, the Mr. A asked to apply for asylum.  He was taken to secondary inspection, and shackled hand and foot.  Despite again asking to apply for asylum using his limited English, he was told he would be sent back ""tonight,"" and, upon expressing his fear for his life if he was removed, the INS officer told Mr. A he did not care.  Desperate, Mr. A stabbed himself with the shards of a coffee cup, and was taken to the hospital.  Mr. A was finally interviewed in his native language and was eventually granted asylum.[4]  
  • Ecuadoran asylum seekers, fearing for their lives because of their knowledge of official corruption, fled to the United States and eventually to the United Kingdom pursuant to valid travel documents.  The U.K. government sent them back to the United States to apply for asylum under the principle of British law that required them to seek asylum first in a ""safe third country"" through which they had traveled.  Instead of being allowed to apply for asylum, however, they were shackled and then returned to Ecuador without a hearing or further review.  Because of these and similar cases, a British court has concluded that the United States is in violation of the Refugee Convention and may no longer be regarded as a ""safe third country.""[5]  
  • Amchok Thubten Gyamtso, a Buddhist monk persecuted in Tibet for his opposition to the Communist Chinese regime, was granted asylum in the United States prior to the creation of expedited removal.  He testified that three of his comrades - two Tibetan monks and one Tibetan nun - were ordered sent back to China at JFK airport pursuant to expedited removal.  He does not know what has become of them.[6]  
  • Sharon McKnight, a United States citizen who is mentally retarded, was refused entry at the airport following a trip to visit an elderly relative in Jamaica because immigration inspectors erroneously believed her passport was fake.  Despite the intervention of relatives at the airport who showed inspectors her birth certificate, she was removed to Jamaica the next morning without a hearing or further review.  Only after the intervention of Congressman Michael Forbes was she allowed to return to the United States.[7]

According to one nationwide scholarly study of expedited removal, these and other cases of abuses resulting from expedited removal are only the tip of a very large iceberg.  From April 1997, which marked the implementation of expedited removal, to October 1999, approximately 190,000 people have been subject to expedited removal.  Over 99% of those removed pursuant to this procedure have been removed at secondary inspection, i.e., without further review or a fair hearing.[8]  As many as 900 individuals may have been removed in 1999 despite expressing a fear of returning.  At some ports of entry, as many as 21% of persons were not asked the credible fear questions that are required by INS procedures.[9]

Mandatory detention of asylum-seekers, another aspect of the policy proposed to be expanded by the notice, has also resulted in serious injustices.  Under current law as provided in IRAIRA, individuals who arrive without documents, including asylum-seekers, are subject to mandatory detention.[10]  Under the notice, this mandatory detention policy will now be extended to migrants who arrived by sea as many as two years ago. 

Approximately 40% of INS detainees are held in INS facilities, while 60% are held in local jails under contract to the federal government - where asylum-seekers and others with no criminal record are generally not segregated from the criminal population.  Conditions in these facilities are often inhumane.  One asylum-seeker testified at the May 2001 hearing that he was held at a facility in Elizabeth, New Jersey for more than two years, during which his only comfort was English classes and Bible study offered by Jesuit Refugee Services.  INS later denied the Jesuits access to the facility, and even these opportunities were taken away.[11]

""Mina Burhani,"" an Afghan woman who faced persecution from the Taliban regime because she ran a school for girls (when in power, the Taliban opposed the education of girls), and because her sisters were Christian converts, described her detention after fleeing to the United States:

I was brought [to an INS detention facility] in handcuffs and shackled to another person . . . who as also seeking asylum. . . . [T]hey took away my clothes and gave me an orange prison uniform.  I was treated like a criminal.  I was kept in a room with 12 other women for 23 hours a day.  There was no privacy.  The toilets and shower were in the same room . . . .  We were only taken out of the room for one hour a day; the outdoor recreation area was really like a cage . . . .  We could not see the trees or anything other than a small patch of sky through the fencing.  Every day, guards woke us up at 6AM and told [us] to stand in a line to be counted.  They searched us several times a week.[12]

Even though Ms. Burhani's sister, an American citizen, offered to house and support her, the INS refused to release Ms. Burhani on parole.  Eventually she was released, but only after the intervention of members of Congress at the request of human rights organizations.[13]

We believe that mandatory detention is unconstitutional and that, in general, the policy of the United States should not be to detain asylum-seekers in the absence, in a specific case, of evidence that an individual presents a risk of flight or danger to the community.  Where some form of restraint is necessary to ensure appearance at future hearings, alternatives to detention, including supervised release and electronic monitoring, should be used instead of detention.  These programs have demonstrated enormous success, ensuring the appearance rates of 93% and higher.[14]  Of course, the INS has the power to detain asylum-seekers, and would do so not in all cases but only when release or a detention alternative was insufficient to prevent flight or ensure the safety of the community.

Ending mandatory detention and promoting detention alternatives will help not only refugees, but also taxpayers.  The 1996 immigration laws saw the numbers of immigration detainees skyrocket.  The INS detention and removal budget is now over $1 billion.  By reducing the numbers of individuals in detention who do not pose a danger to the community or a flight risk, ending mandatory detention and encouraging alternatives will save substantial taxpayer dollars.

Finally, it is clear that any ""national security"" justification for the policy change is specious.  The notice claims that implementing a cursory process for expelling Haitian and other non-Cuban migrants who arrive by sea will save resources and deter others who might attempt a hazardous voyage.  The notice offers no support for its claim that curtailing due process rights of people who arrived as many as two years ago will have any such deterrent effect on people contemplating the sometimes desperate journey to our shores.  It seems unlikely that anything short of a substantial improvement in conditions in the home countries from which migrants are fleeing will have such an effect.  In addition, implementing mandatory detention and the costs of potential litigation regarding the constitutionality of the new policy could easily outweigh any alleged gains from failing to afford those who are apprehended and detained, and are unable to express a ""credible fear"" to the satisfaction of an inspector, with fair immigration hearings at which migrants could apply for asylum or other forms of relief from deportation. 

Moreover, it seems clear that would-be terrorists or others intending to do serious harm would not choose the hazards and uncertainties of a dangerous sea voyage to arrive in the United States.  Instead, they would pose as legitimate tourist and business visitors, as the September 11 hijackers did.  Even in the unlikely event that dangerous persons would attempt to slip into the country along with weary and traumatized migrants aboard generally unseaworthy vessels, rather than through some other channel, expedited removal would not result in greater security.  It seems clear that a rule that allows swift exclusion after a cursory interview with an immigration inspector provides far less security than a rule that would expose migrants to the more formal process of an immigration hearing.

These serious problems make clear that expedited removal cannot protect the due process rights of arriving refugees and other visitors and will not enhance our national security.  Expanding this policy is moving in exactly the wrong direction.  We strongly urge you to withdraw the notice.

Sincerely, <?xml:namespace prefix = w /> 

Laura W. Murphy
Director, Washington National Office

Timothy Edgar
Legislative Counsel


ENDNOTES 

[1] Notice Designating Aliens Subject to Expedited Removal Under Section 235(b)(1)(A)(iii) of the Immigration and Nationality Act, 67 Fed. Reg. 68924 (Nov. 13, 2002).

[2] See INA § 235(b)(1)(A)(i) (""If an immigration officer determines that an alien . . . is inadmissible [for fraud or lack of valid travel documents] the officer shall order the alien removed from the United States without a further hearing or review unless the alien indicates either an intention to apply for asylum under section 208 or a fear of persecution."")

[3] The same statute that authorized expedited removal also stripped the federal courts of jurisdiction to hear any challenge to the system, including challenges on due process or other constitutional grounds, unless such a challenge was made in a lawsuit in the United States District Court for the District of Columbia filed within 60 days of the system's implementation.  See INA § 242(e)(3).  As a practical matter, this time limit succeeded in rendering the system immune from attack by arriving asylum-seekers.  No individual asylum-seeker was able to file a claim within 60 days, and the courts ruled that organizations opposed to the system lacked standing to assert their rights.  See American Immigration Lawyers Association v. Reno, 199 F.3d 1352 (D.C. Cir. 2000). 

[4] An Overview of Asylum Policy: Hearing Before the Immigration Subcommittee of the Senate Judiciary Committee, May 3, 2001, Statement of Karen Musalo, Director, Expedited Removal Study (hereinafter ""Musalo Statement"") at 8-10.

[5] Musalo Statement, at 12-15.

[6] An Overview of Asylum Policy: Hearing Before the Immigration Subcommittee of the Senate Judiciary Committee, May 3, 2001, Testimony of Amchok Thubten Gyamtso (hereinafter ""Amchok Thubten Gyamtso Statement""). 

[7] Musalo Statement, at 16-17.

[8] Musalo Statement, at 7-8.

[9] Musalo Statement, at 20-21 (citing GAO study).

[10] See INA § 235(b)(1)(B)(iii)(IV) (""Mandatory Detention -- Any alien subject to the procedures under this clause shall be detained pending a final determination of a credible fear of persecution and, if found not to have such a fear, until removed."")

[11] An Overview of Asylum Policy: Hearing Before the Immigration Subcommittee of the Senate Judiciary Committee, May 3, 2001, Testimony of Patrick Mkhizi, at 2.

[12] An Overview of Asylum Policy: Hearing Before the Immigration Subcommittee of the Senate Judiciary Committee, May 3, 2001, Testimony of ""Mina Burhani,"" (hereinafter ""Statement of 'Mina Burhani'"") at 1-2.

[13] Statement of ""Mina Burhani,"" at 2.

[14] Vera Institute for Justice, Testing Community Supervision for the INS: An Evaluation of the Appearance Assistance Program, June 7, 2000, Volume I, at 66.

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