Immigration justice: Justice without judges.

Sunday, October 3rd, 2010
By: Jonathan MontagJ.D.

I get these calls every week. A family member of an alien or the alien himself or herself calls and tells me that the alien is in Mexico. He or she was encountered by ICE or CBPand signed papers to allow his or her return to Mexico without seeing an immigration judge. I ask, “Why did he sign?” The answer is invariably that the officers explained that if the alien did not sign and go back to Mexico he or she would be detained for many months, would not be able to legalize his status in the United States anyway, and that he or she would have an easy time just coming back through the issuance of a visa from a U.S. Consulate in Mexico. That would be a lot cheaper and easier than sitting in detention. Sometimes the answer is that the alien was berated and threatened until he or she just signed to get out of a threatening and oppressive environment. Sometimes the calls come from people I had spoken to before they were even detained. I discussed with these aliens their rights and relief available to them. Yet they still signed and agreed to a return to Mexico because of coercion and fear. These people do not have removal orders, but the collateral consequences of “signing and going” are often as bad as having an actual removal order.

If I did not hear this so often and hear the same story over and over from colleagues, I would be skeptical that government officers are giving faulty legal advice and employing abusive tactics to compel aliens to leave the country rather than pursue their rights and ask to see an immigration judge. But I do hear the story so often I believe this happens regularly.

Just recently I received a call from a man who was returned to Mexico. It turned out he had at least two forms of relief available to him – family unity and Cancellation of Removal for Certain Nonpermanent Residents– and perhaps even adjustment of status. Instead of pursuing these forms of relief, he ended up in Mexico because officers assured him he was better off just “signing and going.” Now that he was in Mexico, he had no way of getting back. His response to my informing him of the result of what he did was, “I guess I messed up.”

If government officers did not feed aliens bad advice and coerce them to leave without seeing an immigration judge, aliens would be brought to immigration court. There they would hear that they have certain rights and that certain relief was available to them. They might observe that they could be released from detention and fight their cases. They would see that everything might not be completely stacked against them and could obtain correct advice about their prospects for release from detention and relief from removal. In the worst case, barring certain criminal issues or prior encounters with an immigration judge, the alien would be able to “sign and go” and leave voluntarily, the same offer he or she got from the immigration officer.

The immigration court system, the Executive Office for Immigration Review (EOIR), one would think, would encourage that its role be enhanced and all aliens get a chance to see an immigration judge in a timely fashion. After all, immigration judges hear every day from aliens describing the misinformation they were fed when they were initially arrested. Instead, the EOIR is formalizing a system where ICE officers are permitted to provide legal advice to aliens and file papers so aliens can be ordered deported without ever seeing an immigration judge. This formalization can be found in a September 15, 2010, EOIR memo, “Procedures for handing requests for a stipulated removal order,” which allows immigration judges to order the removal of unrepresented aliens without ever seeing them. Inasmuch as the entire purpose of bringing a person to a judge is so the person can receive an objective explanation of his rights, have the opportunity to consult with an attorney, be provided an appraisal of the propriety of a removal charge and the availability for relief, and have a sense that he is being dealt with fairly and objectively, creating a method of by-passing the system seems counter to the entire purpose of having immigration judges. If unrepresented aliens, on the advice of immigration officers, waiver their right to see a judge and still be ordered deported, why even have immigration judges? Just let the officers determine who should and who shouldn’t see a judge and let that be the end of it.

The courts of appeals also do not do much to discourage such a system where rights can be so easily trammeled resulting in the denial of a fair hearing. In a recent decision, US v. Ramos, the Ninth Circuit concluded, in line with long-standing precedent, that none of the infringements on basic rights mattered to the alien in the case as in the end the alien, Mr. Ramos, was deportable and so he was not prejudiced. The court found that the following rights were violated:

1. The right to be informed of the right to counsel;

2. The right to be informed of the right to appeal;

3. The regulatory right be informed before stipulating to removal.

The court found that Mr. Ramos’s constitutional right to due process was violated. However, because Mr. Ramos failed to show prejudice resulting from these regulatory and constitutional violations, the deportation order was deemed valid.

The EOIR’s willingness to accept a process where unrepresented aliens can waive all their rights and agree to their own removal invevitably will lead to cases where aliens “sign and go” who have relief available to them. The fact is that now aliens currently by-pass the immigration court and “sign and go” based on faulty advice by immigration officers, but at least immigration judges don’t sign off on this miscarriage of justice. Under the new system that the EOIR is adopting, the EOIR is giving its blessing to not affording aliens a hearing with an immigration judge where the immigration judge, someone neutral and knowledgeable, takes a few minutes to make sure the right thing is happening to an individual who may be facing the most important event of his life – his banishment from his home and family and the severing of all the bonds formed here to go to a land where he has no contemporary identification. The EOIR should not allow itself to be a party to such a procdeure. Posted October 3, 2010.


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