Because of this constitutional failure, President Trump and Secretary Kelly have decided to see that IIRIRA will be fully implemented, including Expedited Removal. The Treason Bar has declared that to be unacceptable and the Treason Bar is now judge shopping to see that the expansion of Expedited Removal is stopped.
The Trump administration’s plan for putting hundreds of thousands of recent migrants in the country illegally onto a fast track for deportation is likely to trigger the next major legal battle over immigration enforcement...Sounds like David Savage is an advocate, not a reporter. Contact him here.
But the administration’s efforts to step up immigration enforcement and streamline deportation — outlined in memos from Homeland Security Secretary John F. Kelly — could affect far more people, including potentially most of the estimated 11 million immigrants living illegally in the United States.
One part of that effort — the expanded use of what the law refers to as expedited removal — is almost certain to face a constitutional challenge in the courts.
[Trump's Fast-Track Deportations Face A Legal Hurdle: Do Unauthorized Immigrants Have A Right To A Hearing Before A Judge?, by David Savage, LAT, March 22, 2017]
To speed up deportations, Kelly proposed to use expedited removal, with no hearings before a judge, for those immigrants who cannot prove they “have been continuously present in the United States for a two-year period” prior to their arrest. The new procedures would not be limited to border areas and could be used to deport immigrants living in the interior of the country.Embarrassingly, "law professor" Hiroshi Motomura [Email him]and the Treason Bar wailing that one immigration officer can deport someone is without basis in fact.
Kelly said the law since 1996 has authorized the government to “remove aliens expeditiously,” and he said his agents “shall make full use of these authorities.”
Immigrants rights advocates voiced alarm. The American Immigration Council said this approach means a Homeland Security agent “operates as prosecutor and judge and often arrests an individual and orders him or her deported on the same day...”
Civil liberties lawyers also call that proposal unconstitutional, and they expect to sue if the Trump administration puts the new policy into effect.
“We believe ‘expedited removal’ fails to afford a meaningful opportunity to defend oneself, and that, whatever its validity when employed at the border, it would be unconstitutional as applied to those living among us who are entitled to full due process protection,” said David D. Cole, national legal director for the American Civil Liberties Union.
And they will be hanging their hats on "due process of law." Which appears to mean a right of appeal to the Supreme Court.
The Supreme Court has repeatedly said that immigrants, even those who are here illegally, are protected by the Constitution’s guarantee of due process of law...
But how much process is due for immigrants who entered illegally or overstayed their visas remains “a gray area,” said UCLA law professor.
“It’s possible that a court might find that a full immigration court hearing isn’t constitutionally required,” he said. But it is also possible “that a single field agent making the decision is constitutionally deficient.”
The process of Expedited Removal, or ER as it is commonly referred to by DHS employees, is not one person making a decision, but three, at least "single field agent" making the finding, then a review by two levels of supervisor.
And here it is in writing, the actual procedure followed by an immigration officer of any component of DHS:
(2) Determination of inadmissibility. (i) Record of proceeding. An alien who is arriving in the United States, or other alien as designated pursuant to paragraph (b)(1)(ii) of this section, who is determined to be inadmissible under section 212(a)(6)(C) or 212(a)(7) of the Act (except an alien for whom documentary requirements are waived under § 211.1(b)(3) or § 212.1 of this chapter), shall be ordered removed from the United States in accordance with section 235(b)(1) of the Act.The Code of Federal Regulations (CFR) are the regulations created for each Federal law, mirroring the appropriate United States Code section on which they are based, in this case 8 CFR 235.3. And while only one supervisor is mentioned in the regulations, in practice, all ERs are verbally approved by a second line supervisor as well before the removal is executed.
In every case in which the expedited removal provisions will be applied and before removing an alien from the United States pursuant to this section, the examining immigration officer shall create a record of the facts of the case and statements made by the alien. This shall be accomplished by means of a sworn statement using Form I-867AB, Record of Sworn Statement in Proceedings under Section 235(b)(1) of the Act.
The examining immigration officer shall read (or have read) to the alien all information contained on Form I-867A. Following questioning and recording of the alien's statement regarding identity, alienage, and inadmissibility, the examining immigration officer shall record the alien's response to the questions contained on Form I-867B, and have the alien read (or have read to him or her) the statement, and the alien shall sign and initial each page of the statement and each correction.
The examining immigration officer shall advise the alien of the charges against him or her on Form I-860, Notice and Order of Expedited Removal, and the alien shall be given an opportunity to respond to those charges in the sworn statement. After obtaining supervisory concurrence in accordance with paragraph (b)(7) of this section, the examining immigration shall serve the alien with Form I-860 and the alien shall sign the reverse of the form acknowledging receipt. Interpretative assistance shall be used if necessary to communicate with the alien...
(7) Review of expedited removal orders. Any removal order entered by an examining immigration officer pursuant to section 235(b)(1) of the Act must be reviewed and approved by the appropriate supervisor before the order is considered final. Such supervisory review shall not be delegated below the level of the second line supervisor, or a person acting in that capacity.
The supervisory review shall include a review of the sworn statement and any answers and statements made by the alien regarding a fear of removal or return. The supervisory review and approval of an expedited removal order for an alien described in section 235(b)(1)(A)(iii) of the Act must include a review of any claim of lawful admission or parole and any evidence or information presented to support such a claim, prior to approval of the order. In such cases, the supervisor may request additional information from any source and may require further interview of the alien.
[8 Code of Federal Regulations Sec. 235.3 Inadmissible Aliens and Expedited Removal, Service Law Books, DHS]
And this is the due process of law that illegal aliens are receiving now. Note how the Treason Bar appeared to be conceding that illegal aliens caught at the border might be constitutionally subjected to ER, but other illegal aliens should not be. Basically the Treason Bar is claiming that the further from the border you are and the longer you remain uncaptured, the more "due process of law" you deserve. That is quite ridiculous.
Due process of law should be the same for each class of aliens. In this case, aliens with no legal status should have the same due process of law, mere administrative review by a first or second line supervisor. Further appeals have no purpose other than to gum up the works, as certain Mexican politicians are planning.
There is no need for any outside review of any claim by an alien unlawfully present. Only those admitted in a classification giving the alien the right to remain in the United States on a permanent basis; e.g. legal permanent residents, asylees, and refugees, should have any appeal rights to either an administrative system, such as was the norm before 1983, or the Executive Office for Immigration Review (EOIR), the immigration courts, created by administrative fiat in 1983, another reason to criticize Ronald Reagan.
What President Trump should seek is an expansion of Expedited Removal by legislation, then use his administrative authority to close down the EOIR, and recreate the position of Special Inquiry Officer (SIO) to review and adjudicate appeals of removal orders. In doing so, he will clip the ambitions of EOIR immigration judges, placing them firmly under the control of the Attorney General, or better yet, the Secretary of DHS, with the authority to appoint and remove SIOs at the Secretary's pleasure. Aliens would still have the right to use an attorney to represent himself, but under stricter discipline, the SIOs would be prevented from generally sabotaging immigration hearings as immigration judges do now by repeatedly rescheduling hearings and be required to make decisions immediately after hearing the alien's appeal. Instead of appeals taking years, they would take no more than a day, but most would be done in hours. Giving then SIOs the title of "immigration judges" and the permission to wear judicial robes was a major blunder. Such trappings of judgeship gave these officials delusions of grandeur, which has resulted in ambitions of power and prestige that was inappropriate for a person reviewing the minor facts about a deportation case and alienage.
Time for President Trump to put the minor kritarchs of the EOIR out of business and streamline the immigration appeals system.