Expediting ‘Due Process’ in Removal Cases

I recently offered a quick tutorial on “due process” in the immigration context, that is the steps the government must take to remove inadmissible and deportable aliens from the United States, consistent with constitutional requirements. Congress and the administration could make several changes to expedite that process, while ensuring aliens receive full and fair adjudications. Here are a few.

The Baselines

The best synopsis of what due process requires in removal proceedings comes courtesy of the Ninth Circuit: “Where an alien is given a full and fair opportunity to be represented by counsel, prepare an application for … relief, and to present testimony and other evidence in support of the application, he or she has been provided with due process.”

Under section 240 of the Immigration and Nationality Act (INA), removal proceedings usually involve two separate determinations: (1) is the alien (deemed a “respondent”) removable as charged; and (2) if the respondent’s removable, is that respondent eligible for some waiver or immigration benefit that would allow him or her to remain?

Those waivers and benefits are the “relief” to which the circuit court referred, and usually eligibility for relief is the only real issue in the case. Most aliens concede they are removable — because they entered illegally, committed a specified crime, overstayed a nonimmigrant visa, etc. — and the real issues come at the next stage, where they seek relief.

There are a handful of benefits an alien can seek in removal proceedings, but most common is “asylum”, a benefit and protection under section 208 of the INA.

To be granted asylum, an alien must prove either past persecution or a well-founded fear of persecution back home, based on the alien’s “race, religion, nationality, membership in a particular social group, or political opinion”.

Crime, lawlessness, war, poverty, lack of opportunities, and even blatant discrimination are unfortunate facts of life in many countries, but without more they generally don’t constitute “persecution” based on one of those five factors and therefore don’t entitle respondents to asylum relief.

Other common forms of relief are “adjustment of status” for beneficiaries of immigrant visas under section 245 of the INA; “cancellation of removal” (42A cancellation) under section 240A(a) of the INA, which waives certain criminal grounds of removal for green card holders; and “42B cancellation” under section 240A(b) of the INA, which provides green cards to other removable aliens who prove that their removal would result in “exceptional and extremely unusual hardship” to certain qualifying U.S. citizen and green-card-holding relatives.

There are also forms of relief that protect aliens who don’t qualify for asylum but who prove they, too, would be persecuted (“statutory withholding” under section 241(b)(3) of the INA) or tortured (withholding and deferral of removal under the Convention Against Torture, or “CAT”) if returned.

Statutory withholding and CAT are unique, because in addition to finding that an applicant for one of those protections is removable before granting such relief, an Immigration Judge (IJ) must first order that alien removed, and only then grant them that protection.

Notably, those protections only bar DHS from removing an alien to a country or countries the IJ specifies — not to any other nation that will accept the alien.

As for a “full and fair opportunity to be represented by counsel”, note that removal proceedings are civil, not criminal, in nature and therefore the Sixth amendment right to counsel at government expense for defendants who can’t afford one doesn’t apply.

Instead, section 292 of the INA states that a respondent in removal proceedings “shall have the privilege of being represented (at no expense to the Government) by such counsel … as he shall choose”. (Emphasis added.)

In other words, if respondents want lawyers, they must hire their own. Plenty of respondents represent themselves in removal proceedings, and there are a number of pro bono (or “low bono”) organizations that offer to represent respondents for free or at a reduced rate.

1. Move Convention Against Torture Claims to DHS

The sole reason respondents can seek CAT protection in removal proceedings is that the Clinton administration wrongly concluded that CAT is similar enough to asylum and statutory withholding as to not impede the timely completion of removal cases. Let me explain.

You won’t find CAT applications in the INA. Instead, a duty to not return aliens to torture was imposed on the U.S. government when the Senate ratified the U.N. Convention Against Torture in late 1994.

But U.S. ratification was not “self-executing” and required congressional legislation to make it effective.

Enter section 2242 of the Foreign Affairs Reform and Restructuring Act of 1998 (FARRA), which made it policy to not “expel, extradite, or otherwise effect the involuntary removal of any person to a country where there are substantial grounds for believing that the person would be in danger of being subjected to torture”.

Unlike with asylum in the Refugee Act of 1980, FARRA didn’t expressly explain how that policy was to be implemented, however, leaving it up to the “appropriate” executive-branch agencies to enact regulations to enforce CAT protections.

As a result, and aside from those somewhat vague directions, CAT protection is regulatory. The regulations implementing CAT are found in 8 C.F.R. §§ 1208.16, 1208.17, and 1208.18, and the last provision states, in pertinent part:

Torture is defined as any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or her or a third person information or a confession, punishing him or her for an act he or she or a third person has committed or is suspected of having committed, or intimidating or coercing him or her or a third person, or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity. [Emphasis added.]

As that definition suggests, there are many determinations an adjudicator must make in deciding whether a respondent will be eligible for CAT. Thus, in many ways CAT determinations are much more complicated than asylum or statutory withholding determinations.

Moreover, many applicants seek CAT only because they aren’t eligible — for various reasons, including serious crime convictions — for asylum and statutory withholding. In such cases, final adjudication in a removal hearing is prolonged solely for a CAT application.

Note, however, that IJs have not always had jurisdiction over CAT.

In fact, between the ratification of CAT in 1994 until the issuance of an interim rule implementing FARRA under the Clinton administration in March 1999, the former INS “adopted [an] administrative process to assess the applicability of” CAT “to individual cases in which an alien is subject to removal”.

According to that interim rule, when INS had sole jurisdiction, CAT protection worked as it was supposed to, but without burdening IJs. The INS was abolished in March 2003, but the administration could always shift that authority to ICE, which has assumed the INS’s deportation duties.

And as I have explained in the past, giving that duty to ICE alone:

would actually protect aliens: Years can pass between the issuance of a final removal order and the actual removal of an alien from the United States. Giving the CAT determination to DHS would ensure that, at the time of removal, an assessment could be made that the alien was not facing torture upon return to the country of removal.

Shifting jurisdiction would also significantly reduce IJ backlogs. DOJ hasn’t published statistics on CAT adjudications since FY 2018, but that year, IJs completed 69,618 CAT cases and granted protection in 1,334 of them — or just under 2 percent of the total.

Given that the immigration court backlog has increased more than 272 percent since then, it’s safe to assume there are nearly 190,000 pending CAT cases in the queue, or 270 cases per IJ — about half a year’s work.

2. Limit Continuances

There were nearly four million cases pending before the immigration courts as of the end of March, and on average each takes about three years to complete. As the Government Accountability Office (GAO) found in June 2017, respondents’ requests for continuances were a big reason why cases were taking longer to complete than they had in the past.

Respondents in removal proceedings request continuances to seek lawyers, for lawyers to prepare pleadings, to submit applications, and to obtain evidence supporting those applications, as well as for more mundane reasons, such as the respondent or lawyer can’t make it to court due to traffic or illness.

The Supreme Court has recognized that “as a general matter, every delay works to the advantage of the deportable alien who wishes merely to remain in the United States”, and requests to continue cases for frivolous or dilatory reasons improperly waste judicial and prosecutorial resources.

Yet IJs who deny requests for continuances risk being found to have denied respondents due process by reviewing courts.

Note that section 208(d)(5)(A)(iii) requires IJs to complete asylum cases within 180 days, “absent exceptional circumstances”, yet few non-detained asylum applications are completed in that timeframe.

Nor do the regulations offer much protection, simply stating that an IJ “may grant a motion for continuance for good cause shown, provided that nothing in this section shall authorize a continuance that causes the adjudication of an asylum application to exceed 180 days in the absence of exceptional circumstances”.

Neither that regulation nor the statute explains what constitutes “exceptional circumstances” or “good cause shown”, which leaves IJs with the temerity to deny continuances subject to the caprice of circuit court judges who don’t like either the denial or the ultimate outcome.

For order to be restored to immigration enforcement, the administration (by regulation or precedent), Congress (by statute), or both must more narrowly define whether and in what circumstances it is appropriate to deny continuances — especially repeated ones.

Or they could provide one continuance for counsel and then leave it to the attorneys and the courts to decide when the case will be ready for completion. Anything is better than “for good cause shown”.

3. Screen All Asylum Applications Under the “Credible Fear” Standard

As of the end of March, more than 1.8 million asylum applications were pending before the immigration courts — and IJs must adjudicate them all, regardless of their merit. Some of those claims — involving aliens stopped at the borders and ports — have been screened for legal sufficiency under the “credible fear” standard, but the vast majority (claims by aliens arrested in the interior, for instance) haven’t been — though they could be.

Under section 235(b)(1) of the INA, CBP officers and Border Patrol agents can summarily remove aliens without proper entry documents who entered illegally under a process called “expedited removal”.

If aliens subject to expedited removal claim a fear of persecution of returned, however, they must be interviewed by USCIS asylum officers to determine whether they have a “credible fear of persecution” before those aliens can seek asylum from an IJ.

The statute defines a “credible fear of persecution” as “a significant possibility, taking into account the credibility of the statements made by the alien in support of the alien’s claim and such other facts as are known to the officer, that the alien could establish eligibility for asylum”.

That standard is not high, but of the 163 credible fear cases asylum officers adjudicated to decision in the first two weeks of January, nearly half (48.5 percent) resulted in negative credible fear determinations.

That’s not to say half the 1.8 million asylum claims pending before IJs would be dispensed with if they were screened under that credible fear standard, but it would definitely relieve IJs from having to hear the least meritorious ones.

An April 11 DOJ memorandum already directs IJs to “take — all appropriate action to immediately resolve cases on their dockets that do not have viable legal paths for relief or protection from removal”, which would allow the courts to preemptively deny asylum applications with no hope of being granted.

Many if not most of those losing applicants, however, are certain to appeal, and IJs will likely be gun shy in exercising this option, again out of concern that they will be found to have denied due process.

Congress would have to amend the INA for the credible fear standard to apply to asylum claims pending in immigration court, but such a proposal could gain bipartisan support given that it would clear meritorious claims to be granted more quickly.

Due process protects aliens’ rights in removal proceedings, but those rights can be abused. Congress and the administration can expedite removal hearings by limiting continuances and non-meritorious asylum claims, and by returning Convention Against Torture decisions to immigration officers, who proved capable of deciding them in the past.