Tag: Due process right to a hearing

Categories
Global Pinoy

Undocumented’s options – depart voluntarily or be detained

Share this:

Two weeks ago, Rey Galleon, a Filipino who had been residing in unlawful status for several years, was arrested by ICE and decided to depart “voluntarily” to avoid being incarcerated.

According to Galleon’s public statement, the ICE officers gave him the choice of leaving voluntarily or staying in jail for up to six months. For fear of being detained for six months, he chose to depart.

Will the case of Mr. Galleon be a common occurrence for 300,000 Filipinos who are undocumented?

Mandatory detention

Any person who is in the United States is entitled to due process rights under the U.S. Constitution. This includes anyone who is present in the United States in unlawful status. The constitutional protections of due process and equal protection are not limited to U.S. citizens; they also apply to every person regardless of immigration status.

Generally, this means that the right to legal counsel and to a hearing should be afforded a person. While these rights exist, ICE officers may continue to detain a person while awaiting a court hearing. This happens in particular cases where the law limits the exercise of this right to certain individuals who are subject to mandatory detention and those who are arriving aliens.

The following persons are subject to mandatory detention:

  1. those who have criminal inadmissibility grounds;
  2. those with convictions of multiple crimes of moral turpitude, aggravated felonies and controlled substances among others;
  3. those who are inadmissible based on terrorist activities.

Arriving aliens also may not be granted bond hearing and could remain in custody until removed. The law defines an arriving alien as one who is coming to the United States at a port of entry or are seeking transit through the United States at a port of entry.

Release on bond

If an individual is not subject to mandatory detention or is not an arriving alien, either the ICE sets the bond or the immigration judge decides whether an individual is subject to release on bond. Until the arrested individual is heard, he remains incarcerated unless ICE makes a determination of a release on bond.

Generally, ICE counsel will not object to a release on bond if the individual is not a flight risk and other factors exist to show that the individual will appear on the date set for hearing. There is a lot of discretion on the part of the immigration judge on whether the individual is released on bond. It is also during these times when the detainee decides to just depart instead of staying in jail to await the hearing before the immigration judge.

While those who are in unauthorized presence are lumped into one category as being “undocumented,” each case will be treated differently depending on the circumstances of each case.

Given that the DHS has been given additional resources to enforce immigration law not only against those with criminal convictions, but also anyone who is found to be in unlawful status, it is important for those concerned to make timely informed decisions.

Should they decide to stay, they have to know the risks and prepare themselves to take legal steps when ICE comes knocking at their doors. The risk involves incarceration until released on bond. If they are not willing to take the risk, then the difficult decision to depart voluntarily becomes imminent.

Categories
Updates

Expedited removal may be expanded under Trump

Share this:

Several advocates are distributing “Know Your Rights” literature to those who may possibly be affected by the enhanced enforcement of immigration law brought by Trump’s Executive Orders. One of the rights that one should know is the right to a hearing before an immigration judge. This is a constitutional due process right that may be asserted during apprehension and prior to removal.

There is one particular instance where there is no right to hearing, and that is during an expedited removal. Given the changes brought about by Trump’s Executive Order, will an extension of this process affect those who are present in the United States in unlawful status?

Expedited removal

For 20 years now, the expedited removal has been a process used by the Department of Homeland Security to fast track the removal of certain individuals at the ports of entry, who are in violation of immigration law relating to fraud or are unable to show proper legal documents to prove lawful status.

It is commonly referred to by Filipino travelers as “Airport to Airport” or “A to A,” referring to a case where a passenger at the port of entry in the United States is found inadmissible and is returned the same day of arrival (or the next available flight) to the country of origin. In these cases, the arriving alien is not entitled to a hearing, and a determination of a federal agent is sufficient to send the traveler back to his home country.

Expedited removal has been extended twice. The first expansion of expedited removal is in 2002 when it applied it to those who:

  1. entered the United States by sea, either by boat or other means;
  2. were not admitted or paroled in the United States (entered without inspection) and
  3. have not been continuously present in the United States for at least 2 years.

In 2004, the DHS expanded the application of expedited removal to non-citizens who are encountered within 100 miles of the border, and who entered the United States without inspection less than 14 days before they are encountered by immigration authorities.

Due process right to a hearing

President Trump’s Executive Order instructs the Secretary of Homeland Security to apply expedited removal to the fullest extent of the law. Section 11(c) of the Executive Order states in full: “Pursuant to section 235(b)(1)(A)(iii)(I) of the INA, the Secretary shall take appropriate action to apply, in his sole and un-reviewable discretion, the provisions of section 235(b)(1)(A)(i) and (ii) of the INA to the aliens designated under section 235(b)(1)(A)(iii)(II).”

Applying expedited removal to the fullest extent of the law means putting millions of unauthorized immigrants who have been in the United States for less than 2 years at risk of an expedited removal without a hearing even if apprehended beyond 100 miles from the border.

The DHS rules are still being developed and they will soon be published in the Federal Register. Yet, overzealous immigration officers may put anyone in expedited removal if apprehended and if unable to prove legal status and 2 years of physical presence.

The right to a hearing of those who have been residing in the United States extends even those who are without legal status. The Supreme Court had settled this issue many years ago. Should there be a deprivation of the right to a hearing because of the proposed expanded expedited removal, the Executive Order entitled “Border Security and Immigration Enforcement Improvements,” will be challenged in the judicial courts as being unconstitutional just like the executive order on the travel ban.

(Atty. Lourdes Santos Tancinco, Esq. is a San Francisco-based immigration attorney and an immigrant rights advocate. She may be reached at 1 888 930 0808, law@tancinco.com or facebook.com/tancincolaw.)