Prof. Geoffrey A. Hoffman on ICE Raids and the "Non-Priorities Priorities"

Prof. Geoffrey A. Hoffman, Feb. 14, 2017 - "Over the weekend hundreds of immigrants were arrested.  Despite statements by some in the administration that the arrests were “routine,” they appear to be an implementation of the Executive Order on interior enforcement signed by the President on January 25, 2017.  The fact that these raids were a fulfillment of campaign promises was acknowledged by the Present in a tweet where he said, “The crackdown on illegal criminals is merely the keeping of my campaign promise. Gang members, drug dealers & others are being removed!”  The DHS Secretary later also made a statement that the raids were targeting those who allegedly posed a threat to public safety, had been charged with criminal offenses, and had committed immigration violations or had been deported and reentered the country illegally. More than 680 reportedly were arrested.

The operative word is “others” in the tweet by the President. This word must be analyzed in light of the Executive Order on interior enforcement. The Order has up-ended priorities that the former administration had in place. Former Secretary of DHS, Jeh Johnson, promulgated an ICE policy memo in November 2014, setting out the then alleged priorities for enforcement.  The priorities were meant to focus attention on threats to national security, public safety, serious misdemeanants, as well as felons and recent immigration violators. The new Executive Order replaces those priorities with a new set. Unfortunately, the new “priorities” are so expansive that arguably no undocumented person in the United States may actually fall outside of them.

The new priorities are defined as anyone who is convicted of “any criminal offense,” charged with any crime, or even who has committed any acts which could lead to a charge.  There is no attempt to distinguish between misdemeanors and felonies, minor misdemeanors and serious misdemeanors, non-violent offenses and violent ones.  No provision is made for family unity, those with U.S. citizen children or other family members, humanitarian concerns such as medical needs or a relationship to U.S. military personnel, or asylum seekers.  Also targeted are those who have engaged in a material misrepresentation in connection with an official matter, abused any program relating to public benefits, received a final order of removal.  There is a very far reaching catch-all category as follows:  those who “in the judgment of an immigration officer, otherwise pose a risk to public safety or national security.”  Additionally, anyone who is subject to expedited removal under Immigration and Nationality Act (INA)  235, 8 USC § 1225, is also made a priority. 

What we know also is that the Executive Office for Immigration Review (EOIR) has promulgated a policy memo which sets forth the immigration court’s stated priorities for removal proceedings. According to the January 31, 2017 memo to all immigration judges, the priorities are as follows:   “(1) All detained individuals, (2) Unaccompanied children in the care and custody the Department of Health and Human Services (HHS), Office of Refugee Resettlement (ORR) who do not have a sponsor identified, and (3) Individuals who are released from custody on a Rodriguez bond.”  The reference to Rodriguez concerns those individuals in the Ninth Circuit whose cases are pending more than six months. See  Rodriguez v. Robbins, 804 F.3d 1060 (9th Cir. 2015) (holding that noncitizens detained pending their removal cases are entitled to an automatic bond hearing before an IJ at six months of detention, where the government bears the burden of justifying continued detention).

Interestingly the priorities memo deprioritizes the following individuals in removal:  (1) All other unaccompanied children, (2) Adults with children who are released on alternatives to detention, (3) Adults with children who may have been initially detained but then subsequently released from custody, and (4) Recent border crossers who may have been initially detained but then subsequently released from custody. 

What does all this mean in terms of foretelling the future of enforcement operations under the new administration?  The first and most prevalent concern is that many more individuals than just those with criminal convictions will be swept up in the raids given the exceptionally wide breadth of enforcement priorities set forth in the President’s executive order.  Secondly, given the interplay between the Executive Order and the priorities memo from EOIR, detained people will be prioritized which means that bonds and alternative forms of custody such as ISAP may now be opposed by DHS. There is already some evidence that is happening.  Third, there is a real danger of abuse of INA § 235 proceedings, or expedited removal, since that is a category specifically set forth as prioritized under the Executive Order.

The section 235 process requires no judicial review by an immigration judge. An ICE officer can place someone into this process if they entered the U.S. without a valid entry document or committed fraud or misrepresentation and if they cannot prove that they have been present in the U.S. for more than 2 years, according to the statute. (Previously, the expedited removal process was geographically limited to 100 miles by policy and the temporal limitation was 2 weeks).

Given the new way the statute will be implemented many may have trouble proving that they have been living in the U.S. for any fixed period. What happens if an undocumented person is caught-up in a raid and is not otherwise a priority, but cannot prove they have been in the U.S. for the requisite period? Likely they will be deported, unless they can show some persecution-based relief and then hopefully would be placed into either asylum-only or withholding-only proceedings. There is an important safety-valve for those who have persecution based claims under INA § 235 requiring a credible or reasonable fear interview. But the problem will be in making sure those individuals are referred by ICE for their credible fear or reasonable fear interviews. If not, they could be issued an expedited removal order without further notice and then physically deported.

The INA does provide some limited judicial review of such orders, but the only review of an individual section 235 process is a habeas corpus proceeding under  INA 242(e); 8 USC 1252(e). Federal court review is limited, however, to the following determinations:  “whether the petitioner is an alien, whether the petitioner was ordered removed under such section, and whether the petitioner can prove by a preponderance of the evidence that the petitioner is an alien lawfully admitted for permanent residence, has been admitted as a refugee, or has been granted asylum. INA § 242(e)(2). Given the limited ability of federal courts to review the Department of Homeland Security’s determinations, many people may be placed into the expedited removal program.

Another possible source of review is more global and also contained in INA § 242(e).  Although as we saw INA § 242 limits quite severely the use of judicial review over any individual expedited removal decisions  it is possible to challenge more broadly the "validity of the system" of expedited review and its implementation in federal court.  INA § 242(e)(3). Such an action must be brought no later than 60 days after the date of the challenged "directive, guideline, or procedure..." is first issued. Id. § 242(e)(3)(B).

The directive, guideline or procedure would have to comply with APA notice and comment rules and those presumably will be coming.  However, if no directives are forthcoming the government could maintain the Executive Order itself is the directive, guideline or procedure. Once the directive is promulgated and finalized, advocates are then able to challenge both: (a) the constitutionality of the section’s implementation and (b) whether it is being done in violation of the any other law, such as other parts of the INA.  See INA 242(e)(3)(A). There may be possible 4th and 5th amendment violations or other constitutional violations that may have occurred in the process of placing people into Expedited Removal. Although Fourth Amendment claims in the immigration context are difficult, they are possible and have been successful in egregious circumstances.   See INS v. Lopez-Mendoza, 468 U.S. 1032, 1044 (1984); Oliva-Ramos v. Attorney Gen., 694 F.3d 259, 271 (3d Cir. 2012) (holding exclusionary rule applies to egregious or widespread violations of the 4th Amendment).

 Since INA 235 requires no judicial review by any immigration judge, who would be there to question the removal of such a person if they do not have an attorney to represent them? Even with an attorney present the only recourse in such cases to challenge the 235 order in the federal courts.  Under the doctrine of apparent eligibility, if one is in removal proceedings under an immigration judge the judge is required to advise respondents of their eligibility for forms of relief, with or without counsel. See 8 CFR 1240.11(a)(2) (doctrine of apparent eligibility).  Without an attorney or an immigration judge in the process, there is little to no possibility that those individuals who may otherwise possess some type of potential relief would be even advised of those possibilities.

The new administration appears unaware or perhaps willfully ignorant of the entire concept of prosecutorial discretion. They may be under the misimpression that there is no discretion whatsoever, according to remarks made on television over the weekend by advisor Stephen Miller in a round of appearances over the weekend. However, the history of prosecutorial discretion in the context of immigration law is widely documented and well-settled.  For an exhaustive discussion, see Shoba Wadhia’s authoritative study, Beyond Deportation: The Role of Prosecutorial Discretion in Immigration Cases (NYU Press 2015).

The Harvard Immigration and Refugee Clinical Program under Professor Deborah Anker has also recently authored an excellent paper entitled, “The Impact of President Trump’s Executive Orders on Asylum Seekers.” See https://today.law.harvard.edu/wp-content/uploads/2017/02/Report-Impact-of-Trump-Executive-Orders-on-Asylum-Seekers.pdf. In this paper, other aspects of the new priority system (or lack thereof) are elucidated. Specifically, the impacts on persons who otherwise under the previous administration would have been given a chance at pursuing their claims may now be detained, fast-tracked, and quickly deported. See discussion in the Harvard paper regarding the new administration’s policies’ impact on asylum seekers, parolees, those placed in expedited removal, and those who may be sent back to their home countries in violation of non-refoulment, as well as denial of family reunification among other issues.

As further noted in the Harvard paper, there is a little known provision which provides that individuals can be returned to a contiguous country pending their removal hearings. See Exec. Order, § 7, citing INA § 235(b)(2)(C). The fact that there is mention made in the executive order of this procedure means plans may be in place to return individuals, even asylum seekers, to Mexico or Canada, even where they are eligible for a hearing in removal proceedings under INA § 240, and even where they may be otherwise eligible for other relief.  The problem with this, as noted by Harvard, is that there is no guarantee that Mexico or another country would not deport them back to their home country while they await their asylum decision here in the U.S. Implementing this provision in this way and sending asylum seekers back to Mexico for any length of time, would violate U.S.’s domestic and international legal obligations. See Harvard paper, at 7, and n.44.

The “priorities,” as we have discussed, set forth in the January 25 Executive Order on border and interior enforcement are largely illusory. They exhibit the strange logic of this new administration where the “priorities” do not protect most and perhaps not any undocumented person, since asylum seekers, crime victims, children and others with valid claims for relief are left wholly unprotected. The priority system under the Obama “priority enforcement program” or PEP was far from perfect. However, in the prior case of PEP there was at least some semblance of an expression of policy preferences which could then be used to advocate for persons to be granted prosecutorial discretion. Under the new regime, even the semblance of such a priority system has been eviscerated.  Instead, the new system enshrines the following principle: where no one is truly prioritized everyone is at risk." 

Geoffrey A. Hoffman, University of Houston Law Center, director of the Immigration Clinic (Institution for identification only. The views expressed are the author’s own and not necessarily those of the University’s or any other party).