Criminal Defense of Immigrants
§ 15.22 E. Expedited Removal, Special Removal Proceedings for Noncitizens in Prison, and Judicial Removal
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There are two forms of expedited removal, i.e., where the DHS may remove a noncitizen without an order issued by an immigration judge. One is for noncitizens at the border who are found to have made a material misrepresentation to obtain an immigration benefit, or who lack proper documentation. The other is for non-LPRs who have been convicted of aggravated felony offenses. The INA provides a way a United States District Court may order removal of a defendant in criminal proceedings. There is also a special form of immigration proceeding for those serving criminal sentences in prison.
EXPEDITED REMOVAL " PROSECUTORIAL DISCRETION
Matter of ERM & LRM, 25 I&N Dec. 520 (BIA 2011) (INA 235(b)(1)(A)(i), 8 U.S.C. 1225(b)(1)(A)(i), setting criteria for expedited removal, does not limit DHS prosecutorial discretion to place arriving aliens in removal proceedings).
VISA WAIVER PROGRAM
Shabaj v. Holder, 602 F.3d 103 (2d Cir. Apr. 12, 2010) (noncitizen who entered with fraudulent Italian passport pursuant to Visa Waiver Program has waived right to removal proceedings, even where noncitizen was not Italian and not eligible for visa waiver program).
RELIEF - VISA WAIVER PROGRAM
Bradley v. Attorney General of the U.S., 603 F.3d 235 (3d Cir. Apr. 22, 2010) (rejecting arguments that removal order is void under Woodby v. INS, 385 U.S. 276, 286 (1966), because the record lacks "clear, unequivocal, and convincing evidence" that noncitizen waived right to contest his removal under the Visa Waiver Program ("VWP"), 8 U.S.C. 1187, that there was no valid waiver of right to contest removal under the VWP because waiver was not "knowing and voluntary," and that notwithstanding any VWP waiver, application for a marriage-based adjustment of status may be renewed before an immigration judge under 8 U.S.C. 1255(c)(4)), agreeing with Bayo v. Napolitano, 593 F.3d 495, 507 (7th Cir.2010).
REMOVAL PROCEEDINGS - EXPEDITED REMOVAL
Graham v. Mukasey, ___ F.3d ___ (6th Cir. Mar. 20, 2008) (expedited removal procedure, pursuant to 8 U.S.C. 1228(b), violated neither due process not equal protection rights).
IMMIGRATION OFFENSES " ILLEGAL REENTRY " COLLATERAL ATTACK " EXPEDITED REMOVAL
United States v. Raya-Vaca, ___ F.3d ___, 2014 WL 5802287 (9th Cir. Nov. 10, 2014) (expedited administrative removal order under INA 235 violated due process where immigration officer failed to comply with 8 C.F.R. 235.3(b)(2)(i), and no prejudice need be shown).
JUDICIAL REVIEW -- EXPEDITED REMOVAL " HABEAS CORPUS " CUSTODY REQUIREMENT REMOVAL PROCEEDINGS -- EXPEDITED REMOVAL " HABEAS CORPUS " CUSTODY REQUIREMENT
Smith v. U.S. Customs and Border Protection, 741 F.3d 1016 (9th Cir. Jan. 9, 2014) (affirming district courts denial of government's motion to dismiss habeas corpus action for lack of jurisdiction, since alien was not in custody, as required for federal jurisdiction over his 2241 habeas petition, and alien was ordered removed under the expedited removal statute, and thus was not entitled to hearing under statute providing for limited habeas review of expedited removal orders).
REMOVAL PROCEEDINGS " STIPULATED REMOVAL ORDER " DUE PROCESS VIOLATION
United States v. Ramos, 623 F.3d 672, 2010 WL 3720208 (9th Cir. Sept. 24, 2010) (stipulated removal, under 8 C.F.R. 1003.25, violated due process where noncitizen was not informed of right to appeal in a language the noncitizen could understand and failure to obtain proper waiver of counsel also violated Fifth Amendment rights; however, no prejudice was shown for purposes of challenging illegal re-entry conviction by challenging underlying removal since noncitizen was ineligible for any form of relief).
IMMCON - EXPEDITED REMOVAL
De Rincon v. Dep't of Homeland Sec., 539 F.3d 1133, 2008 WL 3863863 (9th Cir. Aug. 21, 2008) (circuit court lacked jurisdiction to hear collateral attack on reinstated expedited removal order; district court lacked jurisdiction to consider habeas petition challenging expedited removal order).
REINSTATEMENT OF REMOVAL - NO DUE PROCESS, NO HABEAS
Martinez-Merino v. Mukasey, 525 F.3d 801 (9th Cir. May 5, 2008) (affirming reinstatement of removal for Mexican speaker of Triqui with little or no Spanish skills; because due process protections do not apply to persons subject to reinstatement of removal, REAL ID Acts transfer of jurisdiction to the appellate courts (which accepts no new evidence) does not result in an impermissible suspension of habeas corpus), following Morales-Izquierdo v. Gonzales, 486 F.3d 484, 496 (9th Cir.2007) (en banc).
OVERVIEW " EXPEDITED REMOVAL
Gary Mead ICE Memorandum on strategic use of expedited removal. http://www.dhs.gov/news/2011/05/24/statement-gary-mead-executive-associate-director-enforcement-and-removal-operations
CRIM DEF - EARLY RELEASE TO DEPORTATION - PRISONER TRANSFER
The general rule is that a noncitizen cannot be removed until the sentence has been served. INA 241(a)(4)(A). The exception to this rule applies to certain nonviolent offenders. INA 241(a)(4)(B).
The immigration laws, 8 U.S.C. 1231(a)(4)(B), allow removal of certain nonviolent offenders prior to completion of a sentence of imprisonment. The International Prisoner Transfer Unit at DOJ processes applications for transfer, and examines several factors.If the client is in State custody, as opposed to federal, an additional layer of approval is needed. The first issue is whether or not the particular state participates in this program. Most states, but not all, have passed the statutes necessary to allow inmates from that state to participate in the transfer program. If the particular state has passed this legislation, the client should be informed of this option by the prison authorities upon entering the prison system.
Second, the government will get feedback from the law enforcement official involved in investigating the case and from the prosecutor's office. This is usually a sticking point. Law enforcement typically did not care where the person served the time. The prosecutors were another story. They almost always had objections based on the fact that once the person transfers they are no longer under their jurisdiction and are then subject to the laws of the country to which they are transferred. They typically fear that once the person is transferred they will just get be released without serving the time.
The applicant must also to have good behavior in prison. Any black marks as far as behavior will be a negative factor. Other factors include the nature of the offense, the length of the sentence, the amount of time already served, family ties in home country, and family ties in the United States. If the client is in state custody, the state (typically, the governor's office) will have to approve the transfer. Then the federal authorities can approve the transfer. Then the receiving country will have to accept the transfer.
If the client receives a fairly lengthy sentence, it is less likely he will receive a quick transfer. The government would probably prefer he serve some of his time here in the United States, unless the inmate has strong humanitarian factors in his favor.
If the client is a Lawful Permanent Resident, he will have to give up his rights to remain in the country and not fight deportation. If this is not done, there will be no transfer. Thanks to Jeanne Brennan Funk.
REMOVAL PROCEEDINGS - STIPULATED REMOVAL ORDERS IN CRIMINAL CASES
Federal authorities are increasingly deporting illegal immigrants through a fast-track program that bypasses court hearings, an effort by the federal government to save money, reduce backlogs and clear detention beds. (Anna Gorman, Concerns Arise Over Fast-Track Deportation Program, Los Angeles Times (Mar. 2, 2009), http://www.latimes.com/news/local/la-me-deport2-2009mar02,0,5186477.story.) "The number of detainees in California and across the nation who agreed to be deported without first seeing a judge jumped fivefold between 2004 and 2007, from 5,481 to nearly 31,554. In the first half of 2008, 17,445 speedy deportation orders were signed." (Ibid.) Almost half of all of these orders after 1999 were issued in Lancaster, California, Los Fresnos, Texas, and Eloy, Ariz. Immigration attorneys question whether those who agree to deportation under this program have been accurately informed of their options. Jayashri Srikantiah, the director of the Stanford Law School immigration clinic, said some detainees are pressured to sign the deportation forms even though they may have defenses against deportation or be eligible for asylum or green cards. About 95% of the people who agreed to the speedy deportations since 1999 are not represented by attorneys, she said. (Ibid.)
EXPEDITED REMOVAL " ARGUMENT FOR CHALLENGING EXPEDITED REMOVAL VIA HABEAS CORPUS
"The ideal time to file a habeas petition under the theory outlined in this article would be while the petitioner was detained by CBP pending execution of the expedited removal order." David A. Isaacson, Mar. 5, 2011. http://www.cyrusmehta.com/news.aspx?SubIdx=ocyrus201135115520
OVERVIEW " STIPULATED REMOVAL
A news report indicates that ICE is unofficially ending the stipulated removal practice. http://www.azcentral.com/arizonarepublic/news/articles/2011/11/06/20111106immigration-arizona-deportation-program.html