Timothy Dugdale, On Expedited Removal and Double Secret Probation
In the film, “Animal House,” Dean Wormer puts the Delta Chi fraternity on double secret probation. It seems now that the CBP may have something called “internal expedited removal,” that could have been used on a U.S. native born citizen showcased in Olivas v. Whitford (SD California 2015). The petitioner tried to secure a visa for his wife. Because his mother was undocumented when she gave birth to him in LA in 1969, she waited five months to file for a birth certificate. The US Consulate in Cuidad Juarez asked to interview the mother and then coerced into signing a declaration that she had run a scam to secure a false birth certificate for her son, the petitioner for his wife’s visa.
On August 23, 2011, CBP officers confiscated Plaintiff’s birth certificate and Social Security card and removed him to Mexico. CBP officers gave Plaintiff a Notice to Appear which did not indicate a date or time for Plaintiff to appear for immigration proceedings. The officers instructed Plaintiff to call the immigration court system hotline to learn when his hearing would take place. Plaintiff diligently called the automated hotline twice a week for two years, but the response remained the same: either the case was not filed with the court or there is no match for the “Alien Number” that is listed on the Notice to Appear. Id. ¶ 23.
Things went from bad to worse for Mr. Olivas.
Plaintiff last visited the Calexico West Port of Entry on or around February 26, 2013. Plaintiff explained that he is a U.S. citizen and asked CBP officers when he would have a hearing in front of a judge and how he could obtain a copy of any removal order issued against him. “CBP Officer Frank Hernandez told [Plaintiff] that if he returned to the Port of Entry, CBP officers would interpret his presence there as an attempt to gain admission” and that he “would be arrested, detained for a period of time that would `not be brief,’ and removed without seeing a judge.” Id. ¶ 29. “[Plaintiff] has never been permitted to view a copy of the purported order of removal that was allegedly entered against him.” Id. ¶ 30. “[Plaintiff] has never been informed of any date, time, or place to appear for any hearing before an immigration judge.” Id. “CBP Defendants have failed to refer [Plaintiff’s] matter to an immigration judge as required by law.” Id.
Although government officials have never allowed Plaintiff to view the purported removal order that was allegedly issued against him, CBP officers may have executed an “Expedited Removal” order against him. If so, that order violated regulations that mandate a claimed status review hearing before an immigration judge for any person asserting U.S. citizenship. Id. ¶ 32.
Olivas struck back by filing this petition for a Writ of Habeas Corpus. Moreover, he sued the cats who removed him, including John Kerry.
Plaintiff contends that he has properly invoked federal question jurisdiction under 28 U.S.C. section 1331 to plead claims for declaratory and injunctive relief for the violations of his constitutional rights by government officials. Plaintiff contends that 5 U.S.C. section 702 expressly waives “sovereign immunity in non-statutory review actions for nonmonetary relief brought under 28 U.S.C. § 1331.” (ECF No. 31 at 4). Plaintiff contends that CBP or its predecessor agencies are subject to injunctive relief for violating constitutional rights and directly refutes Defendants’ position that Plaintiff must invoke a waiver of sovereign immunity found in Title 8. Plaintiff further contends that cases cited by Defendants concern the substantive question of whether the government had, in fact, waived sovereign immunity over the claims in question and do not require Plaintiff to cite the statute waiving sovereign immunity in the Complaint.
Citing Ninth Circuit precedents, the judge agreed that sovereign immunity was properly waived. The government tried to scuttle Olivas’ case on two other fronts. First, they suggested that he was barred from challenging the expedited removal statute and its procedures under 1252(e)(3) because he wasn’t filing in the District Court for the District of Columbia. The judge was unimpressed with this reasoning. The expedited removal system is not under attack, he suggested, only the violation of the petitioner’s due process rights. Indeed, if Olivas challenged that fact he only gets one shot at claiming citizenship in front of an IJ and was then barred from going into district and circuit court, then he would have been challenging the statute. All he wanted was that initial hearing with the IJ that he was due. “There is no allegation that a removal proceeding took place or that an order was issued. Plaintiff’s challenge is not subject to 8 U.S.C. section 1252(e)(3) because it is not a challenge to the validity of expedited removal proceedings pursuant to section 1225(b)(1).”
The judge was equally blase about the government’s contention that the Secretary of State could only be sued in DC as well. The judge reasoned that since the State Department‘s actions precipitated the actions of the petitioner’s immediate custodians in Southern California, the case is on greased rails to speed ahead.
This case highlights the very weird synergy between border consulates and the border patrol and how craven actions by rogue elements of both operations can compound the trouble for a hapless soul whose life is lived on the border and happens into their clutches. This is a bleak story that rivals that of Mark Lyttle, a US citizen who got lost in the wilds of immigration enforcement madness.