Friday, February 27, 2015

Timothy Dugdale: The Constitution and Noncitizens in Two District Court Decisions

Two interesting cases have been decided in the past week at the district court level. In one, L.I. L-R v. Johnson (DC District), James Boasberg takes ICE to task for using detention as a warning advertisement to Central America that there is no open door to the United States. Particularly vexing for Boasberg was the fact that some woman were being detained even after they had successful "credible fear" interviews that removed them from the dreaded Immigration and Nationality Act (INA) § 235 track of expedited removal and shunted them on the golden INA § 240 rails that pass in front of an immigration judge (IJ), the Board of Immigration Appeals (BIA) and perhaps even a court of appeals. Boasberg begins his ruling by discussing the notorious 2014 Department of Homeland Security (DHS) memorandum that set up the detention strategy he found so failing. One would think that if the DHS is tinkering with the expedited removal system, that system would be open to judicial review regardless of AILA v. Reno (DC Circuit 1999).

The second case, Maca v. U.S. Attorney, illuminates why the expedited removal statute as it's written is pretty diabolical. Mr. Maca lived continuously, albeit illegally, in the United States for 16 years. He made a trip to Mexico and tried to get back into the country using a fraudulent identification. He was rewarded with an expedited removal. Unfazed, he quickly snuck back into the States and resumed his life with four US citizen children. Years later, he was found out when he went to inquire about securing a work permit. Maca filed a writ of mandamus demanding that DHS adjudicate a cancellation of removal petition. He contended he met all the requirements for such relief.

The judge was unconvinced. "…the placement of the cancellation provisions within § 1229 suggests that Congress likely intended to make cancellation relief available only to those aliens receiving the full procedural protections of a formal removal proceeding, while aliens subject to expedited removal receive only those protections afforded them in § 1225—which severely restricts procedural safeguards and limits the judicial review of expedited removal determinations."

It should be noted that any alien apprehended inside the US who can prove he or she has been continuously present for two years receives an INA §§ 240/1229 proceeding. At the border, Maca was assimilated as an "arriving alien" and he had no game on any of the three prongs found at INA §§ 1252(e)(2)(A-C). 1252(e)(5) bars judicial inquiry into whether he was eligible for relief although in Kabenga v. Holder (SD New York 2015), the judge stomped all over Section 1252(e)(5) so she could determine if the petitioner was in fact admissible. Judge Gordon delves deeper into the Kafka-esque dilemma.

8 C.F.R. § 1240.20(a) provides that an application for cancellation of removal shall be submitted on Form EOIR-42, "Application for Cancellation of Removal." Because Maca would apply for cancellation as a nonpermanent resident, the form he must use is Form EOIR-42B.40 The form provides that an applicant is eligible for cancellation only if "[p]rior to the service of the Notice to Appear, [he has] maintained continuous physical presence in the United States for ten (10) years or more."41 A Notice to Appear is filed in order to commence formal removal proceedings before an IJ.42 An alien subject to expedited removal never receives a Notice to Appear. As a result, an alien subject to expedited removal would never qualify for cancellation based on the application form required by the Secretary of Homeland Security's regulations because he could never calculate the period of his physical presence in the United States with reference to the date of service of his Notice to Appear.

If Boumediene and the functional approach to alien rights articulated by Justice Kennedy are now the supreme control over habeas, including the immigration context, this case illustrates why the expedited system is unconstitutional. Maca did not get the due process he was due because the system as it's cravenly built won't let him get it.

"Without any right to cancellation, Maca cannot make a showing as to any of the standing elements, including injury, causation, or redressibility.43 Accordingly, he has failed to establish that he has standing to bring claims premised on defendants' alleged failure to adjudicate his application for cancellation."

Timothy Dugdale, Ph.D., Atomic Quill Media

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