|Is this ironic? “Give me your tired, your poor, Your huddled masses yearning to breathe free, The wretched refuse of your teeming shore, Send these, the homeless, tempest-tossed to me, I lift my lamp beside the golden door!" Emma Lazarus, 1849-1887.
Summary Removal Orders
The United States Congress passed two (2) major legislative bills in 1996, with sweeping changes to the immigration laws of our nation. These legislative bills were named as the Anti-terrorism and Effective Death Penalty Act of 1996 (also referred to as "AEDPA"), and the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (also referred to as "IIRIRA"). The "summary removal" process that is the subject of this published article was enacted through IIRIRA on September 30, 1996 but it became effective only on April 1, 1997.
An order of "summary removal" refers to an expeditious and simplified decision-making process for purposes of ordering a noncitizen deported (or "removed") from the United States. These summary removal orders can be issued against a noncitizen directly by an immigration officer instead of an immigration "judge" as it was the case for 23 years. Prior to 1983, only "special inquiry" officers were authorized to issue orders of deportation. In 1983, Congress created the Executive Office for Immigration Review ("EOIR") and the Immigration Courts so that "special inquiry" officers became the present immigration judges. Since 1983 then, only immigration judges were authorized to issue orders that a noncitizen be removed or deported. In other words, immigration officers could not order that a noncitizen be deported. The process required the officers to issue a charging document accusing the noncitizen to be subject to an order of deportation and then serve it on the noncitizen and file it in the immigration court. Then, it would be the job of the immigration judge to determine whether or not the noncitizen would be deported, and this continues to be the case in all other situations where the "summary" procedure refererenced in this article does not apply. Deportation proceedings then would commence against the noncitizen that would take place in an immigration court, with all of the procedural due process formalities in place, including the right to be represented by a lawyer at no cost to the government (private lawyers paid by the noncitizen), the right to present evidence, to cross-examine the government witnesses and the right to administrative and judicial review of the decision at the end of the case in the immigration court. These legal rights are commonly known as safeguards of minimum "procedural due process rights" under the terms of the due process clause of the fifth amendment to the US constitution that holds: "No person shall...be deprived of life, liberty, or property, without due process of law." These safeguards are codified into the immigration laws in furtherance of those protections required by the due process clause of the fifth amendment to the US constitution and, which are extended to "all persons" in the United States. In 1996, the laws changed and now they allow an immigration officer to order a noncitizen deported—but only in certain limited cases—and such orders are issued against a noncitizen by a low ranking immigration officer in the regular exercise of his or her delegated duties provided certain conditions are met.
What is an order of "summary" deportation or removal?
The short answer is— an administrative deportation (removal) order that was issued against a noncitizen by the Immigration and Customs Enforcement ("ICE"), an agency of the Department of Homeland Security ("DHS"), ordering that the noncitizen be deported from the United States, which "dispenses of most, if not all of the customary legal formalities" surrounding a regular order of deportation in a court of law before an immigration judge. Hence, the term summary describes a quasi-judicial process that substantially reduces the procedural protections that are otherwise regularly extended to noncitizens in removal proceedings, designed for the purpose of preventing arbitrary abuses. An order of "summary" deportation or removal is vastly different than a regular order of deportation or removal with respect to not only "how" such order is issued, or '"who" may be authorized to issue it, but most critical of all, because it dispenses of the right to appeal the order to a higher independent authority. An order of summary deportation or removal is authorized by immigration law for example in instances where a noncitizen is apprehended within 100 miles of any US border within 14 days of entry, and who is determined to have made a "material misrepresentation" or the noncitizen simply lacks "proper" documents as determined, after coming into contact with an immigration officer (or border patrol agent) at or near 100 miles from a port of entry, or, upon inquiry by the officer the noncitizen cannot prove to the satisfaction of that immigration officer or border patrol agent that he/she is present in the United States lawfully, including for example that he/she has been lawfully admitted to the United States after inspection by an immigration officer. If the noncitizen is not lawfully present in the United States, at that time (whithin 14 days of entry) and at that place (within 100 miles of any US border), then the noncitizen must show to the satisfaction of the immigration officer or border patrol agent that he/she has been physically present in the United States for at least two (2) years immediately preceding the inquiry and interception with the officer or agent or, the noncitizen will be determined by the officer as being subject to summary removal.
The rationale for the enactment of the summary proceedings is as follows—unless that noncitizen can convincingly demonstrate upon inquiry by an immigration officer or border patrol agent that he/she was admitted (or paroled) into this country and lawfully present, or in the alternative that he/she has been physically present in the United States for at least two (2) years, then why should the law force the US government to extend to such noncitizen all of the established due process procedural safeguards that are extended to other noncitizens mentioned above? You may argue that under the fifth amendment of our federal constitution "all persons" in the US have the same equal due process protections under the law, but you would be wrong because under Supreme Court precedent, noncitizens whom have not made an "entry" to the US (have not been admitted) do not have the same or equal rights as those who have made such entry. This concept is well known and commonly referred to as the "entry-fiction doctrine".
Most courts have found this summary procedure as objectively reasonable under the circumstances although it has been controversial since its enactment because of its intended purpose. But to its credit, the Department of Homeland Security has been measured in not over employing this procedure to deny otherwise eligible noncitizens whom have been admitted of the more formal removal proceedings before an immigration judge and with the panoply of statutory procedural due process otherwise integrated in all administrative removal proceedings, including but not limited to the right to present evidence, examine and cross-examine witnesses, the right to legal representation at the noncitizen's own cost and the right to an impartial adjudicator.
An order of summary removal (summary deportation) carries the same severe consequences as does, an order of removal issued by an immigration judge during removal proceedings. The most significant difference between the two (2) removal processes (the summary and formal proceedings) is that a noncitizen in summary removal proceedings before an officer or agent (as opposed to the same noncitizen in removal proceedings before an immigration judge) has very limited procedural due process rights, such as: is not entitled to representation by a lawyer at his own cost—and most important—has no meaningful administrative or judicial review rights. This means that if the immigration officer making the determination that the noncitizen will be subject to summary removal, makes such determination arbitrarily or in error, the likelihood that it will be reversed on review oscillates between negligible and non-existent.
In sum, under the new summary removal provisions, an officer of the Immigration and Customs Enforcement (ICE) has been delegated with the authority to issue these so called "summary removal" orders against a noncitizen and thereby avoiding the more comprehensive procedure involving the filing of a charging document before the immigration court and extending to the noncitizen the panoply of safeguards mentioned elsewhere (in this article), and in part also to prevent the noncitizen from ultimately defeating the government's effort in removing the noncitizen from the United States.
How? Well, whenever ICE is unable to convince an immigration judge with "clear and convincing" evidence that the noncitizen is removable (only so, in very rare circumstances) or, when the noncitizen is able to establish to the satisfaction of the immigration judge that he/she deserves a grant of legal status based on a series of applications for relief that are made available by law to non-criminal noncitizens unlawfully present in the United States. For example, a noncitizen encountered by immigration law enforcement agents whom has resided in the US for a period of at least 10 years, has not been convicted of a list of crimes (mainly crimes involving drugs, crimes of moral turpitude, domestic violence and others), and has been a person of good moral character during the 10 year period, will be given an opportunity to apply for obtaining legal status if the noncitizen can demonstrate to an immigration judge that her removal will result in exceptional and extremely unusual hardships to her spouse, parents, or children if they are lawful permanent residents or US citizens. Certainly a very generous giving in theory, but to obtain legal status in this manner in reality requires the noncitizen to show this very high level of hardship to her qualified family member, which only a handful of applicants ever succeed in satisfying it. But again, in theory at least, such noncitizen may strike gold in the small number of cases that are successful where the facts and circumstances in the case demonstrate the high level of hardships required to the satisfaction of the immigration judge. Also, keep in mind that this relief from removal is only available to a noncitizen if she is encountered by an immigration or customs law enforcement officer and is thereafter placed in formal removal proceedings.
This application process is commonly known as "cancelation of removal for non-permanent residents" and it cannot be granted to a noncitizen by the encountering immigration officer as is only made available in removal proceedings before an immigration judge, if the noncitizen is placed in formal removal proceedings and meets the initial requirements shown above.
And with respect to the intention behind this statutory provision—there are two (2) practical reasons as to why an ICE officer has been delegated with the authority to issue a summary order of removal against an alien. One of them (for example) is when the presence of the noncitizen in the United States has come to the attention of ICE after he/she suffered a criminal conviction for certain type of crimes that are designated as offenses for which the noncitizen can be removed expeditiously. This occurs for example when the noncitizen is arrested for seemingly common crimes such as driving under the influence of alcohol, or for domestic violence, or even yet for a traffic ticket that did not get paid in time and thereafter turned into a warrant for the arrest of the noncitizen driver. It more frequently occurs however when the noncitizen is arrested by state or city law enforcement and accused of committing more serious crimes such as certain types of felonies or even misdemeanors that are considered by immigration law a high priority, and thereafter the noncitizen is convicted for such a crime.
Most county jails in large metropolis throughout the United States will require that the person arrested or convicted be asked about his or her nationality or place of birth. If the person arrested or convicted informs the inquiring county jail official that he or she was born in a foreign country, and has not become a naturalized citizen of the United States, the county jail official must provide that information to the nearest ICE office, typically by electronic means. In response, the ICE office will soon thereafter place a "detainer" or "hold" request, which means in practice that when the noncitizen is about to be released by the county jail at the conclusion of its term in county custody, the county jail must hold releasing the noncitizen from jail (during a brief period of 24 hours) until ICE goes to the jail to take him or her in federal detention until ICE either issues an order of summary removal, or places the noncitizen in traditional removal proceedings before an immigration judge, or allows him to be released on bail, or on his own recognizance depending on the particular circumstances on a case by case basis.
Noncitizens that are arrested and held in custody while their criminal prosecutions are pending are subject to these "detainers" or "holds" irrespective of whether the noncitizens are legally or illegally present in the United States. Generally, if a noncitizen who is legally present in the United States (meaning his or her presence is legally authorized by immigration law) is arrested, the county official must inquire about their present nationality without regard to the noncitizen's actual immigration status as the determination of their legal presence is a matter for the federal agencies to make.
The other practical reason where an ICE officer has been authorized to issue a summary removal order is where the noncitizen comes to the attention of the ICE agent either attempting to enter the United States at a port of entry or an alien found in the United States who cannot establish to the satisfaction of the agent that he/she has been present in the United States for a period not less than 2 years. In these instances then, an agent of ICE can effectuate the removal of the alien expeditiously and making it extremely difficult if not impossible for the alien to seek any relief. Often, these individuals may be removed to their country of nationality within a few days and are forced to leave behind in the United States their sons, daughters, siblings, parents and friends without any opportunity to consult with a lawyer of their choice.
The officer is required however to conduct an inquiry from the noncitizen in order to establish whether the noncitizen expresses a fear of returning to his or her homeland. This inquiry is known as the "credible fear determination". If the noncitizen establishes to the satisfaction of the immigration officer that he possesses a credible fear of returning to his or her homeland, then, the immigration officer will place the noncitizen in the formal removal proceedings before an immigration judge for it to conduct a full evidentiary hearing for purposes of determining whether the noncitizen may qualify for some form of relief from removal, such as withholding or restriction of removal.
If however, the noncitizen does not establish that he or she possesses a credible fear of returning to the homeland, or worst yet, if the immigration officer erroneously determines that the claim by the noncitizen is legally insufficient or deficient, then, the officer’s order of summary removal can be executed against him or her unless the noncitizen is given the opportunity for a single level of very limited administrative review before an immigration judge. This limited “review” is most likely performed via video while the noncitizen is in the custody of the Service without any right to legal representation by an immigration lawyer and without comprehensive administrative or judicial review of the decision. For this reason, the summary removal procedure is controversial and ultimately very dangerous to life and liberty and—quite possibly—an affirmative affront to the United States’ commitment to treaty obligations under the Article 33 of the United Nations Protocol Relating to the Status of Refugees that embodies the principle of “non-refoulment” stating— No contracting state shall expel or return (“refouler”) a refugee in any manner whatsoever to the frontiers of territories where his life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group, or political opinion. For this reason, we believe that the summary removal process defies fairness and recants our moral contractual obligations to the nations of the world.
In the past, we have received appellate cases arising from the southern border in Texas where noncitizens have been placed in this summary removal process after being intercepted by border patrol agents near the border. One of these cases involved a 17 year old young woman who was pregnant and had fled her home country because her boyfriend would get drunk every night, forced himself on her at will, and beat her up. She attempted to seek protection from the local police, but they were powerless and unwilling to get involved in "family" quarrels. The immigration officer conducting the "credible fear" examination determined that her claim of persecution was legally invalid because her persecutor was her common law cohabitant and a gang member in Tegucigalpa, Honduras, not a recognized "persecutor" under immigration law. The determination was made in error because the officer was unaware that she was a victim of severe domestic violence that could place her as a viable member of a "particular social group" for purposes of asylum law. When she sought to obtain the little "review" that is available from that decision, the immigration judge conducting the review was also not aware of the validity of her claim and was unable to elicit from the young woman sufficient facts to elucidate the validity of her claim of persecution. The immigration judge then ordered her to be removed to her native Honduras. When she arrived in Tegucigalpa a few months later, she was beaten by her cohabitant and this time she ended up in a hospital nearly comatose. She also lost her baby. We could have prevented her removal had her claim been properly validated by the immigration officer and the immigration judge.