By Attorneys Lorella T. Hess & Nancy E. Miller
Most aliens in the United States are entitled to a hearing before an Immigration Judge if the government seeks to remove them, however those who entered the country illegally and have been here for a short time are subject to a process called expedited removal. As its name indicates, the expedited removal process is designed to move quickly. Usually the alien is not even able to consult an attorney and the final decision is made by an immigration officer during one interview.
Last month, the U.S. Supreme Court decided not to review a case which raised questions about whether aliens caught up in the expedited removal process have certain constitutional rights. In that case, Castro v. D.H.S., the U.S. Court of Appeals for the Third Circuit ruled that families in expedited removal proceedings, who had applied for asylum, could not seek habeus corpus petitions to challenge their detentions in court. A writ of habeas corpus (Latin for “you have the body”) requires the government to bring a prisoner into court and justify the legal basis for his or her detention.
Immigration law scholars and human rights organizations filing amicus (“friend of the court”) briefs argued that the Supreme Court should take up this case because the Third Circuit’s decision threatens the rights of many people already inside the United States. There are two main reasons for concern. First, serious flaws have been documented in how the expedited removal system actually operates. Also, the scope of that system is being expanded by the Trump administration, which plans to apply expedited removal over a much wider geographic area and to include aliens who have been present in the United States for up to two years.
For well over a century the Supreme Court has held that “even aliens shall not be . . . deprived of life, liberty or property without due process of law.” Constitutional due process protections—which include the right to a hearing—apply to “all persons” within the United States. The only exception is that aliens arriving at a port of entry, even though they are in fact geographically inside this country, are subject to the legal fiction that they were stopped before the border and have not yet entered the U.S.
The Third Circuit’s Castro ruling classified women and children apprehended several miles inside the United States (who had avoided a port of entry) under the legal fiction that they had not yet entered, and then also held that they did not have the right to challenge their detention with habeas corpus petitions.
Habeas corpus scholars submitted another amicus brief urging the Supreme Court to take up this case, arguing that the right to file a habeas corpus petition “turns on the extent to which the government exercises control of the petitioner’s person and not on [the petitioner’s] status as a citizen, noncitizen, or alien seeking asylum.”
Indeed, the very same Supreme Court decision which established the legal fiction that, for due process purposes, an alien at a port of entry has not yet arrived in the United States, also acknowledged that such an alien “may by habeas corpus challenge the validity of his exclusion.”
However, because the Supreme Court did not agree to hear the Castro case, the Third Circuit’s holding stands and is binding throughout that circuit, which includes Delaware, New Jersey, and Pennsylvania.
Other U.S. Courts of Appeals have ruled differently in the past, and their rulings remain binding within their circuits. California is in the Ninth Circuit. The most recent rulings from the Ninth Circuit on this issue affirm the entry fiction as traditionally understood, and safeguard constitutional protections for people who have crossed the border into the United States, even if they have done so illegally.
The Third Circuit’s ruling could affect those in other Circuits. Recent arrivals apprehended in the Ninth Circuit could be moved to the Third Circuit and held in detention there, where they would be subject to Third Circuit law and thus unable to file habeas corpus petitions to challenge their detentions. The asylum seekers in the Castro case were taken into custody in Texas (in the Fifth Circuit) before being moved to detention centers in Pennsylvania (in the Third Circuit).
For this reason, it is important to try to prevent DHS from moving recent arrivals from the Ninth Circuit to a Circuit where the law is more harsh. Legal motions need to be filed to prevent such moves. Those subject to expedited removal due to their recent arrival in the United States, or their loved ones, should immediately consult a knowledgeable and experienced immigration lawyer to determine what help is available for them.