This week, a Ninth Circuit federal appeals court issued a ruling refusing to reinstate President Donald Trump's travel ban targeting seven Muslim-majority countries and refugees. In a different Ninth Circuit hearing, another decision that could have wide-reaching impact on immigrants was also handed down the same day–but largely overlooked.
On Tuesday, a panel of the Ninth Circuit Court of Appeals in San Francsico ruled 2–1 that immigrants who are subject to "expedited removal" do not have the right to hire a lawyer before they are deported. Immigrations officers can deport anyone caught without documentation within 100 miles of the border or fewer than 14 days after crossing into the United States. There's no requirement for their case to be heard by a court.
In a dissenting opinion, Judge Harry Pregerson wrote that denying immigrants legal representation makes an inhumane system even worse.
"The expedited removal system is flawed; it does not account for the realities of immigration and the strong ties to this country held by many noncitizens. The system is also cruel; it gambles with the lives of hundreds of thousands of people per year by offering few procedural safeguards. We can, and should, do better," he wrote.
The case, United States v. Peralta-Sanchez, was an appeal filed by Rufino Peralta-Sanchez, a Mexican citizen, who was contesting his 2012 arrest and deportation on the basis that he was not given the right to legal counsel before being deported. Peralta-Sanchez first moved to the United States in 1979 and has three children who are American citizens. In 2012, he was arrested crossing back into the U.S. from Mexico and deported under "expedited removal."
Pregerson wrote in his dissent that giving people the right to legal counsel is one way of making that "expedited removal" process fairer and more in line with the Constitution:
Some 176,752 people were deported under this procedure in 2014 (the year with the most recent available data), according to the Department of Homeland Security. That amounts to 42% of all people deported by ICE that year. The use of "expedited removal" has grown significantly since 2001, the American Immigration Council points out:
This week's court decision could end up having an even wider impact, legal experts I spoke with this week told me, under the Trump executive order issued January 25, which outlines a priority to "expedite determinations of apprehended individuals' claims of eligibility to remain in the United States." The order does not go into further detail about "expedited removals" but lawyers and advocates are concerned that it could lead to a de facto expansion of the program.
Kara Hartzler, a Federal Defenders of San Diego attorney representing Peralta-Sanchez and who has worked extensively with undocumented clients, told me that kind of expansion of the program could then include any immigrant anywhere in the United States who can't prove that they've been in the country for two years or more.
The court's judgement agreed that anyone–regardless of their citizenship status–has constitutional rights once they're in the United States, but that those constitutional rights don't extend to having access to a lawyer if they're being deported under "expedited removal." The court weighed the impact on immigrants if they're denied the right to a lawyer against the cost to the government if immigrants are allowed to hire a lawyer. They found that the financial and administrative cost to the government of having to contest a lawsuit outweighed the impact on the immigrant of not having legal counsel.
"You have a system where despite overwhelming evidence of disparity in outcomes when people have attorneys versus when they don't, most people are navigating the system on their own. It’s super complex and the stakes are huge," said Avideh Moussavian, a policy attorney with the National Immigration Law Center.
This seriously concerns lawyers and advocates who work with refugees, partly because it will likely mean fewer protections for asylum seekers crossing the border into the U.S. fleeing violence and instability in their home countries. In 2016, 58,819 unaccompanied minors from Honduras, Guatemala, and El Salvador who may have fallen into that category were arrested by ICE after crossing the border.
According to 2016 report from Customs and Border Protections, illegal immigration at the U.S.-Mexico border is down "significantly": "the demographics of illegal migration on our southern border has changed significantly over the last 15 years – far fewer Mexicans and single adults are attempting to cross the border without authorization, but more families and unaccompanied children are fleeing poverty and violence in Central America."
"It’s a very bad decision and I think more broadly speaks to the fact that there is a tremendous gap in terms of access to justice and a meaningful version of a fair day in court, when it comes to immigration court for non-citizens," said Moussavian.
In theory, if someone is detained crossing the border and tells an immigration officer that they are seeking asylum or are afraid of returning to their home country, the officer can decide to refer them to the asylum seeker process. But in practice, Hartzler told me, that's often not how these encounters play out.
"There’s supposed to be safeguards for people who say, 'I’m scared to go back to my country,'" said Hartzler. "The problem is if you have this very streamlined procedure where there’s pressure to just get people out of the country and deported as soon as possible, then that's where a lot of mistakes can be made and thats where we think its very important for people to have access to a lawyer to make sure they’re not just run roughshod over."
For the past decade, there have been ongoing concerns from human rights groups about the treatment of asylum seekers under "expedited removal." The U.S. Commission on International Religious Freedom released two reports, one in 2005 and one last year, which "documented serious flaws placing asylum seekers at risk of return to countries where they could face persecution and inappropriate, prison-like detention conditions."
The Ninth Circuit Court's decision comes in the midst of a push from the Trump administration to target undocumented people for deportation. Trump's January 25 executive order, one of his first as president, laid out an aggressive strategy giving ICE officers more power and a mandate to deport many more undocumented people. On Thursday, ICE in Phoenix, AZ, arrested and deported Guadalupe Garcia de Rayos, a mother of two who had been living in the U.S. for decades. This week's court decision and immigration raids is a serious test of how far constitutional rights extend to non-citizens when they're facing deportation.