When removing individuals from this country – permanently severing them from their homes, families, and community—which is more important: fairness or speed?
The United States has a proud tradition of individualized due process. No matter who you are, everyone deserves their day in court. This is especially important for immigrants, many of whom might qualify for prosecutorial discretion given their considerable roots in the United States, but who will only get that consideration if a judge can review their individual case and decide whether or not they must leave. This judicial review – a brief moment of individuality and impartiality within a system that often ignores both – is critical. Yet alarming new evidence has surfaced that in 3 out of 4 removal cases this does not happen at all.
Yesterday the Migration Policy Institute (“MPI”) released the report, The Deportation Dilemma: Reconciling Tough and Humane Enforcement, on the Obama administration’s immigration enforcement record. One of MPI’s principal findings is that the deportation system has dramatically changed over the past 19 years – moving from a judicial system prior to 1996, where the vast majority of people facing deportation had immigration court hearings, to a system today of nonjudicial removals, where 75 percent of people removed do not see a judge before being expelled from the U.S.
The numbers are staggering: in 1995, 1,400 immigrants were subject to nonjudicial removals, representing 3 percent of total deportations. By FY 2012 that number had sharply increased to 313,000 nonjudicial removals – an all-time high.
Under today’s removal system, only one quarter of all people facing expulsion get to present their case before an immigration judge. These judges, employed by the Justice Department, are experts in immigration law. They conduct formal court hearings where they hear live witnesses, review documentary evidence, and evaluate applications for immigration relief.
By contrast, nonjudicial removals are fast-track proceedings wholly controlled by the Department of Homeland Security (“DHS”), sometimes involving only a single border agent who acts as both judge and jury. Those facing nonjudicial removal have no lawyer and no chance to appeal.
The Obama administration has prioritized speed over fairness in the removal system, sacrificing individualized due process in the pursuit of record removal numbers.
A deportation system that herds 75 percent of people through fast-track, streamlined removal is a system devoid of fairness and individualized due process. Nonjudicial removals violate our constitutional tradition and cannot be reconciled with an administration that has repeatedly stated its commitment to immigration reform.
Fairness and individualized due process must be restored to the system. Expedited removal should be limited to cases where individuals are apprehended at ports of entry or land borders. All individuals must be screened to determine whether they are eligible for immigration relief or prosecutorial discretion, especially if they have US-based families or have lived in the U.S. for a substantial period of time. Individuals without a lawyer should be advised of their rights by a judge before agreeing to stipulated removal and there should be an appeal process.
Anything less is un-American.