Displaying items by tag: immigration

Supreme Court Tacitly Allows New Limits on Aliens’ Rights


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.



ICE arrests 1,378 over six weeks in targeting gangs

  • Published in U.S.

May 11 (UPI) -- U.S. Immigration and Customs Enforcement concluded a six-week nationwide operation targeting gangs that made 1,378 arrests, the agency announced Thursday.

Of the arrests that ended Saturday, 1,095 were confirmed as gang members and affiliates, including 137 with the Bloods, 118 with the Sureños, 104 with MS-13 and 104 with the Crips, ICE said. The remaining 283 claimed no gang affiliation but were arrested on criminal or administrative charges.

"Gangs threaten the safety of our communities, not just in major metropolitan areas, but in our suburbs and rural areas, too," ICE Acting Director Thomas Homan said Thursday. "Gang-related violence and criminal activity present an ongoing challenge for law enforcement everywhere."

State, local and federal law enforcement partners participated in the operation led by ICE's Homeland Security Investigations that started March 26.

Operation Community Shield began in 2005 "to target violent gang members and their associates, eradicate the violence they inflict upon our communities and stop the cash flow to transnational organized crime groups," according to an ICE release. HSI special agents, working in conjunction with federal, state and local law enforcement agencies, have made more than 47,000 gang-related arrests.

But since Donald Trump became president in January, immigration agents have stepped up their efforts.

"The goal at end of day is to arrest, prosecute, imprison, and deport and remove transnational gang members as well as to suppress violence and prosecute criminal enterprises," Derek Benner, deputy executive associate director of Homeland Security investigations, said at a news conference.

The arrests included 1,098 on federal and/or state criminal charges with 21 arrested on murder related charges and seven for rape and sexual assault charges. The remaining 280 were arrested on administrative immigration violations.

Of the arrests, 933 were U.S. citizens and 445 were foreign nationals from 21 countries in South and Central America, Asia, Africa, Europe and the Caribbean.

Three who were arrested were part of Deferred Action for Childhood Arrivals -- DACA. Those granted DACA and found to pose a threat to national security or public safety may have their deferred action terminated at any time and the Department of Homeland Security may seek to report them. Since DACA began in 2012, DHS has terminated the status for approximately 1,500 individuals due to criminality or gang affiliation concerns.

Ten arrested crossed the border as unaccompanied minors, including nine as gang members.

The greatest arrested were in Houston, New York, Atlanta and Newark, N.J. areas.

Agents seize $491,763 in U.S. currency, more than 200 firearms, narcotics like cocaine, methamphetamine, heroin, fentanyl and marijuana.

By Allen Cone UPI News


Immigration officers not 'contractuals,' contrary to Diokno's claim

MANILA – Several immigration officers have been skipping work due to President Rodrigo Duterte’s veto of their overtime pay, and that has caused long lines at Manila's airports.
The response of Budget Secretary Benjamin Diokno on Monday, April 3: these immigration workers could be easily replaced since they hold “contractual” positions.
"Ang nature ng job nila ay job orders. 'Yung pagmamatigas nila, they can be replaced anytime 'pag hindi ka nag-report for work when you're supposed to work. Job orders sila eh saka contractual positions, hindi regular plantilla positions 'yan," Diokno said in an interview on GMA 7’s Balitanghali.
(The nature of their work is job orders. If they continue to insist they can be replaced anytime. If they don't report for work, they can be replaced anytime. They're job orders, contractual positions.)
They are part of plantilla
Diokno’s statement is wrong, as immigration officers are part of the plantilla of the Bureau of Immigration (BI).
"Yes immigration officers are holders of regular plantilla positions. Job Orders cannot perform immigration officer functions," said Antonette Mangrobang, BI spokesperson.
Ironically, it is the Department of Budget and Management (DBM) that approves the creation of plantilla positions in government.
The agency even recently approved the opening of 887 new plantilla positions, which will form the newly-created Port Operations Division of the BI.
While there are contractuals in the agency, these are mostly in the main offices and are serving administrative tasks. Immigration officers, meanwhile, are those monitoring and securing the departure and arrival of citizens and foreigners in Philippine airports, among others.
Rappler got hold of the appointment papers of two Immigration Officers I. Both documents indicate they were hired for the “permanent” position with a salary grade 11.
Asked about the inconsistency, Diokno now said immigration officers are indeed "permanent" workers, contrary to his earlier remarks. He then added there are other types of employees in the agency.
"No. What you met are permanent workers. But that's not the totality of workers. In addition, there are job orders and contract of service (COS). The latter two types do not involve employer-employee relationship," Diokno said in a text message to Rappler.
But in the earlier TV interview, Diokno was clearly referring to airport immigration officers as "contractual" employees.
Misleading salary information
The DBM also posted inaccurate information on the salary of immigration officers. In a press statement on Tuesday, April 4, the agency said these personnel earn P28,931 monthly without overtime.
Immigration officers called this a "lie to mislead the public," saying they only receive a gross monthly salary, including allowances, of P21,286 with their salary grade. Minus taxes and deductions, they take home at least P16,484.
Aside from the non-payment of overtime fees of immigration officers, Duterte's veto has also affected hundreds of contractual employees in the agency.
Since January, the contractual staff have not been receiving their monthly salary despite going to work regularly, after Duterte scrapped the source of funds in the 2017 national budget.– Rappler.com

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