Tim Dugdale Part 2: MSPC v. Johnson
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Habeas corpus is not a shield. It’s a sword meant to be used against illegal detention. That is what makes the expedited removal system such an ugly mechanism of attenuated habeas.
The government does not like Boumediene appearing in the immigration context because the ruling brings into question thorny constitutional issues of due process, alien rights and habeas. But in Luna v. Holder ( 2011), the Second Circuit rightly deploys Boumediene in the immigration context to determine what constitutes an adequate and effective substitute for habeas. They decided, after running Justice Kennedy‘s four point test from Boumediene, that the statutory motion to reopen process contained in the INA made the grade. Here’s that test:
1. If Congress succeeds in creating a procedure that is meaningfully “more limited” than habeas review, id. at 778, 128 S.Ct. 2229, as measured by “the sum total of procedural protections afforded to the detainee at all stages, direct and collateral,” then that procedure is not an adequate replacement for habeas, id. at 783, 128 S.Ct. 2229.
2. Because habeas is “designed to restrain” the Government’s power, the scope of the substitute procedure must not be “subject to manipulation” by the Government. Id. at 765-66, 128 S.Ct. 2229.
3. A mechanism for review that “is wholly a discretionary one” is “an insufficient replacement” for habeas. Id. at 791, 128 S.Ct. 2229.
4. The entity substituting for a habeas court “must have adequate authority . . . to formulate and issue appropriate orders for relief,” id. at 787, 128 S.Ct. 2229, including “the power to order the conditional release of an individual unlawfully detained,” id. at 779, 128 S.Ct. 2229.
No court has yet to run this test on the expedited removal system, a procedural machine for maximizing alienage and attenuating habeas, plain and simple. A brief look at 8 U.S.C. § 1252(e)(3) reveals why. 1252(e)(3)(A) demands that all challenges to the system be filed in the District Court for the District of Columbia. 1252(e)(3)(B) states that all challenges must be filed within 60 days of the first implementation of the regulations. The clock ran out on the last day of May, 1997. Both the DC District Court and the DC Circuit Court held this time limit to be jurisdictional. But this was seventeen years ago, long before the Supreme Court really started to take a very serious, ongoing look at filing deadlines, statutory construction and equitable tolling. In Holland v. Florida, no less than Justice Scalia admits that when habeas is concerned, equitable tolling is presumed.
Let us assume then that the petitioners in MSPC v. Johnson would be able to challenge the expedited removal system. Where to begin? Why not with this doozy from the Seventh Circuit’s ruling in Khan v. Holder (2009):
The troubling reality of the expedited removal procedure is that a CBP officer can create the § 1182(a)(7) charge by deciding to convert the person’s status from a non-immigrant with valid papers to an intending immigrant without the proper papers, and then that same officer, free from the risk of judicial oversight, can confirm his or her suspicions of the person’s intentions and find the person guilty of that charge. The entire process-from the initial decision to convert the person’s status to removal-can happen without any check on whether the person understood the proceedings, had an interpreter, or enjoyed any other safeguards. To say that this procedure is fraught with risk of arbitrary, mistaken, or discriminatory behavior (suppose a particular CBP officer decides that enough visitors from Africa have already entered the United States) is not, however, to say that courts are free to disregard jurisdictional limitations.
The judges concluded their dismissal of Khans’ petition by referring Judge Sullivan’s decision in AILA v. Reno.
The district court ruled that § 1252(e)(3)(A)(ii) permitted it to review only the regulations as written, not as applied and not for the agency’s alleged failure to follow its own regulations. Id. at 58. The court acknowledged concern, as we do, with the effects of Congress’s decision to bar the unwritten actions of the agency from judicial review, particularly where individual CBP agents are given so much discretion and are subjected only to a supervisor’s review of their decisions. –
Any habeas system in which the prosecutor is also the judge is pretty bleak. Any system in which there is no NTA, no period to gather exculpatory evidence, no opportunity to examine the government’s evidence, no opportunity to cross-examine the officials involved about their conduct or the rigour of their investigation and no right to legal or consular counsel is highly suspect. Even making a citizenship claim is contricted because if you’re put in front of an immigration judge and declared an alien, you are blocked from appealing that determination. Relief in the expedited removal system is not really relief. Judges cannot release you from custody. As laid out in 1252(e)(4), the best you can hope for is a full removal hearing before an immigration judge per INA 240.
The Artesia detainees are in undeniable physical custody, implicating USC 2241. The DHS has obviously been tinkering with the expedited removal system in order to discharge asylum claims at a great pace, implicating Test #2 of Boumediene. Judge Sullivan’s ruling in AILA v. Reno should give the Artesia petitioners pause, however. Sullivan noted that Article III standing is not only essential to challenging an individual’s expedited removal but it also limits the scope of a challenge to the system itself. The DC Circuit court refused to consider any third party or class action suit.
In 2004 Bush and the DHS extended the use of expedited removals into the interior of the United States. Any illegal alien found within 100 miles of the northern or southern border who could not prove that they had been continually present in the US for two weeks would enjoy an expedited removal. Those who can prove presence receive a full INA 240 removal hearing. Bush and friends effectively installed a troubling two-tier expedited removal system, again implicating Test #2 of Boumediene. At the border, Knauff is the control. In the interior, Fleuti and Plasencia appear to be the controls. In other words, due process is not equal. An “arriving alien” who has spent years in the United States on a treaty trader visa, for example, may go for a day trip in Canada or Mexico, only to be excluded when he or she returns to the United States that night. What “significant connections” to the United States, including property and liberty interests a la Mathews, (See Joseph Landau’s excellent work on this issue.) are sufficient to overcome Knauff at the border and thus escape the expedited removal regime? Under a “mutuality” conception of alien rights, a lawfully present alien, even one who is not an LPR or not yet an LPR, should carry constitutional rights when he or she travels from the US.
It’s high time for the expedited removal system to be tuned up after an exacting judicial review. Or completely dismantled. The ladies of Artesia may just be the ones to make it happen.
-- Timothy Dugdale, Ph.D.FounderAtomic Quill Media