Asylum in the Context of Expedited Removal

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1 Asylum in the Context of Expedited Removal Asylum Chat Outline 5/21/2014 AGENDA 12:00pm 12:45pm Interactive Presentation 12:45 1:30pm...Open Chat Disclaimer: Go ahead and roll your eyes. All material below is provided for discussion purposes only for the Asylum Committee, AILA-WA Chapter. It is not intended in any way to be a legal reference or guide to clients or practitioners and is certainly not intended to be legal advice regarding any case! What is Expedited Removal? *Expedited Removal Basics* INA 235(b)(1)(A)(A) Screening.- (i) In general. If an immigration officer determines that an alien (other than alien described in subparagraph (F)) who is arriving in the United States or is described in clause (iii) is inadmissible under section 212(a)(6)(C) [commits fraud or willful misrepresentation] or 212(a)(7) [lacks proper documentation], the officer shall order the alien removed from the United States without further hearing or review unless the alien indicates either an intention to apply for asylum under section 208 or a fear of persecution. Who is subject to expedited removal and where can it be applied? By Statute AG may apply it to any alien who has not been admitted or paroled and cannot show they have been continuously present for 2 years (INA 235(b)(1)(A)(iii)(I)-(II)) By Regulation April Arriving aliens at ports of entry November 2002 And aliens arriving by sea not admitted or paroled August 2004.And persons present in U.S. not admitted or paroled, who are encountered within 100 miles of the southern border, and cannot establish physical presence in U.S. continuously for prior 14 days January 2006 And all borders, including northern What are the major exceptions? Cubans who arrive at an airport LPR, USCs, or persons granted refugee or asylee status Persons lawfully admitted Persons seeking admission per VWP, if he/she seeks asylum Minors, unless: (i) engaged in AgFel criminal activity in presence of DHS officer; (ii) convicted or adjudicated delinquent of AgFel within US or another country and inspecting officer has confirmation of order; or (iii) has previously been removed, excluded or deported from U.S. Persons who state they are seeking asylum or fear persecution or torture and can establish credible fear of persecution Asylum in the Context of Expedited Removal Asylum Chat Outline For Discussion Purposes Only 1

2 Is there judicial review for expedited removal? Generally no. Statute precludes judicial review INA 242(e)(1), 8 USC 1242(e)(1), except limited habeas corpus proceedings to determine: (A) whether petitioner is alien, (B) whether petitioner was ordered removed under 235(b)(1), and (C) whether petitioner can prove by preponderance of evidence he/she is LPR, has been admitted as refugee, or has been granted asylum and such status has not been terminated No petition for review Avendano-Ramirez v. Ashcroft, 365 F.3d 813, (9 th Cir. 2004) (8 USC 1225 does not permit review of expedited removal through petition for review) But, that does not mean there are no options to at least temporarily stop the expedited removal of an individual, which could be based on the government s unlawful denial of the opportunity to apply for asylum. E.g., if someone is subject to reinstatement, every circuit has held that the court of appeals has jurisdiction over petitions for review of reinstatement orders. So, you could file a petition for review and motion to stay with court of appeals. Also, AG has authority to administratively stay removal of person whose removal is not practicable or proper or who is needed as a witness in a prosecution. INA 241(c)(2), 8 USC 1231(c)(2). DHS Removal Orders Generally Reviewable in Courts of Appeal: - Reinstatement Order - Removal Orders against Non LPRs with AgFels - Removal Order under VWP See Practice Advisory, Reinstatement of Removal, by Trina Realmuto, AIC (April 29, 2013); Practice Advisory, Seeking a Judicial Stay of Removal in the Court of Appeals: Standard, Implications of ICE s Return Policy and the OSG s Misrepresentation to the Supreme Court, and Sample Stay Motion, AIC (May 25, 2012) *CREDIBLE FEAR* Why bother with an exception for credible fear? Balancing border security with ensuring compliance with U.S. international treaty obligations regarding non-refoulment How does the credible fear process start? DHS policy and procedures require CBP and other immigration officers to ask each individual who may be subject to expedited removal a series of protection questions : 1) Why did you leave your home country or country of last residence? 2) Do you have any fear or concern about being returned to your home country or being removed from the U.S.? 3) Would you be harmed if you were returned to your home country or country of last residence? 4) Do you have any questions or is there anything else you would like to add? These are on Form I-867A&B. See Study on Asylum Seekers in Expedited Removal, As Authorized by Section 605 of the International Religious Freedom Act of 1998, Evaluation of Credible Fear Referral in Expedited Removal at Ports of Entry in the United States, February Asylum in the Context of Expedited Removal Asylum Chat Outline For Discussion Purposes Only 2

3 2005, available at: What triggers CBP and ICE s obligation to refer for a credible fear interview? INA 235(b)(1)(A)(ii) Claims for asylum. If an immigration officer determines that an alien who is arriving in the U.S. or is described in clause (iii) is inadmissible under section 212(a)(6)(C) or 212(a)(7) and the alien indicates either an intention to apply for asylum under section 208 or a fear of persecution, the officer shall refer the alien for an interview by an asylum officer 8 CFR 235.3(b)(4) Claim of asylum or fear of persecution or torture. If an alien subject to the expedited removal provisions indicates an intention to apply for asylum, or expresses a fear of persecution or torture, or a fear of return to his or her country, the inspecting officer shall not proceed further with removal of the alien until the alien has been referred for an interview by an asylum officer in accordance with 8 CFR The examining immigration officer shall record sufficient information in the sworn statement to establish and record that the alien has indicated such intention, fear, or concern, and to establish the alien s inadmissibility. When can a person indicate they are afraid of returning? A request for a credible or reasonable fear interview can be made at any time, including in the flight line. ICE AILA Liaison Committee Minutes Fall Meeting December 17, 2013; AILA InfoNet Doc. No What counts as credible fear of persecution? An alien will be found to have a credible fear of persecution if there is a significant possibility, taking into account the credibility of the statements made by the alien in support of the alien s claim and such other facts as are known to the officer, the alien can establish eligibility for asylum under section 208 of the Act or for withholding... or if the alien shows that there is a significant possibility that he or she is eligible for withholding of removal or deferral of removal under [CAT] 8 CFR (e)(2)-(3) What if applicant appears subject to a mandatory asylum bar? Except for applicants at U.S.-Canada land border port-of-entry or in transit through US during removal by Canada, or stowaways, DHS shall place the alien in 240 proceedings even if they appear subject to a mandatory bar. 8 CFR (e)(5) What if the Asylum Office finds no credible fear? Applicant may request review before IJ, 8 CFR (g) IJ s jurisdiction limited to review of credible fear determination Review is de novo Review must be made within 7 days Detained until IJ decides credible fear (except for medical emergency or law enforcement purpose) If IJ finds no credible fear detained until removed No appeal (but ICE may reconsider a negative credible fear finding that has been concurred upon by an IJ) Asylum in the Context of Expedited Removal Asylum Chat Outline For Discussion Purposes Only 3

4 What if the Asylum Office or IJ does find credible fear? Applicant is placed in 240 proceedings, via I-862 What happens to the expedited removal order if AO or IJ finds credible fear? [A]s a practical matter, the expedited removal order is not canceled. The notice and Order of Expedited Removal (I-860) is a two-part form: (1) Determination of Inadmissibility; and (2) Order of Removal under INA 235(b)(1). When an alien expresses fear of persecution during the expedited removal process and the case is referred to an Asylum Officer for a credible fear determination, only the Determination of Inadmissibility form is completed. The Order of Removal part of the form under INA 235(b)(1) is only completed where the alien does not indicate a fear of persecution or where there has been a negative credible fear determination. Therefore, the expedited removal order in the scenario provided is not officially effectuated and is deemed void. ICE AILA Liaison Committee Minutes Fall Meeting December 17, 2013, AILA InfoNet Doc. No *Reasonable Fear* What about fear of return in Reinstatement cases? For individuals subject to reinstatement, regulations only provide a path to withholding of removal via reasonable fear proceedings In reinstatement proceedings, DHS officer conducts interrogation into to determine: whether individual has a prior removal order, actually is the person identified in the prior order, and has unlawfully reentered (8 CFR 241.8(a)); regulations also require DHS to ask whether the person has fear of return. 8 CFR ; 241.8(e). If prior removal order is reinstated per INA 241(a)(5), and the alien in the course of the administrative removal or reinstatement process, expresses a fear of returning to the country of removal then he/she is entitled to a reasonable fear interview. 8 CFR (a) (emphasis added). Upon issuance of a Final Administrative Removal Oder under of this chapter, or notice under 241.8(b) of this chapter that an alien is subject to removal, an alien described in paragraph (a) of this section shall be referred to an asylum officer for a reasonable fear determination. In the absence of exceptional circumstances, this determination will be conducted within 10 days of the referral. 8 CFR (b) (emphasis added). If positive finding of reasonable fear referred to IJ via I-863 for consideration of withholding only! If negative finding of reasonable fear alien can request IJ review, via I-898. IJ shall review within 10 days. No appeal. Asylum in the Context of Expedited Removal Asylum Chat Outline For Discussion Purposes Only 4

5 But a person subject to reinstatement and in reasonable fear proceedings might still want to file a petition for review and motion to stay in the court of appeals, so, when does 30-day petition for review clock begin? Only Ninth Circuit has resolved this issue. [W]here an alien pursues reasonable fear and withholding of removal proceedings following the reinstatement of a prior removal order, the reinstated removal order does not become final [for petition of review purposes] until the reasonable fear of persecution and withholding of removal proceedings are complete. Ortiz-Alfaro v. Holder, 694 F.3d 955, 958 (9 th Cir. 2012). See Practice Advisory, Reinstatement of Removal, by Trina Realmuto, AIC (April 29, 2013). The Million Dollar Question: Is Asylum Available to Persons Subject to Reinstatement? No, according to DHS. The government argues 8 USC 1158(a) s unambiguous rule that governs who is eligible to apply for asylum is trumped by the reinstatement provision, 8 USC 1231(a)(5), which says reinstated individual is not eligible and may not apply for any relief under this Act and shall be removed under the prior order. (Emphasis added). See INA 241(a)(5). The regulations set forth no process by which an alien subject to a prior order of removal may apply or be considered for asylum. IJs are barred by regulation from considering an asylum application by an individual subject to reinstatement. 8 CFR 208.2(c)(2)(i). But, arguably, individuals who fear persecution may be eligible for asylum under INA 208 notwithstanding 241(a)(5) s bar to relief. Some Arguments for permitting asylum applications by individuals subject to reinstatement: 1) Congress intended the asylum statute, 8 USC 1158(a)(1), to apply to Any alien who is physically present in the United States or who arrives in the United States, irrespective of such alien s status INA 208(a)(1) [emphasis added] 2) Regulations prohibiting individuals subject to reinstatement from pursuing asylum are ultra vires. Congress granted AG authority to establish by regulation additional limitations and conditions, consistent with this section, under which an alien shall be ineligible for asylum under paragraph (1). 8 USC 1158(b)(2)(C) 3) The reinstatement statute does not clearly indicate that it applies to an individual seeking asylum 4) Nowhere in the exceptions to who can apply for asylum or the conditions for granting asylum (8 USC 1158) did Congress specify that one may not apply for or be granted Asylum in the Context of Expedited Removal Asylum Chat Outline For Discussion Purposes Only 5

6 asylum if he/she reenters following removal (See e.g., Matter of F-P-R, 24 I. &N. Dec. 681, 685 (BIA 2008) (finding applicant met burden for asylum despite illegal reentry) 5) There is no fixed, consistent use of the term relief in the INA 6) The reinstatement statute cannot prohibit asylum applications by aliens subject to removal orders because that conflicts with 8 USC 1158(a)(2)(C), which governs filing of an asylum application by an alien who has previously applied for asylum and had such application denied, which authorizes a second asylum application based on changed circumstances. 7) Statutory construction 1231(a)(5) s general prohibition on relief cannot trump 1158(a) s specific rules for asylum eligibility 8) Supreme Court has indicated asylum remains available to individuals subject to reinstatement. See Fernandez-Vargas V. Holder, 548 U.S. 30, 35 n.4 (2006); see also Herrera-Molina v. Holder, 597 F.3d 128, 139 n.8 (2d Cir. 2010) (noting Supreme Court s acknowledgment of availability of asylum in dicta). 9) 9 th Circuit has held that Reinstatement of a prior removal order does not offend due process because reinstatement of a prior order does not change the alien s rights or remedies and does not diminish petitioner s access to whatever path for lawful entry into the United States might otherwise be available to him under the immigration laws. Morales-Izquierdo v. Gonzales, 486 F.3d 484, (9 th Cir. 2007). So, if 9 th Cir. has held that the reason reinstatement passes constitutional muster is that it does not alter an alien s rights or remedies under immigration law, then how can the government preclude an individual from pursuing asylum when he/she meets the statutory requirements as eligible to apply for asylum? 10) 9 th Cir. has permitted adjudication of affirmative asylum application for applicant whose removal order was reinstated when the asylum application was filed before the IIRIRA reinstatement provision took effect. Ixcot v. Holder, 646 F.3d 1202, 1213 (9 th Cir. 2011), citing St. Cyr. 533 U.S. at 307; Arevalo, 344 F.3d at 15 ( A right to seek relief is analytically separate and distinct from a right to the relief itself. Consequently, an alien is not precluded from having a vested right in a form of relief merely because the relief itself is ultimately at the discretion of the Executive Branch. (citations omitted.) 11) Permitting individual subject to reinstatement to apply for asylum is consistent with US obligations under international law and federal law should never be construed to violate international law if any other possible construction remains. See Murray V. Schooner Charming Betsy, 6 U.S. (2 Cranch) 64, 64 (1804). Asylum statute intended to comply with UN s Protocol Relating to the Status of Refugees, which US adopted in Withholding prevents refoulment, but the Protocol also requires that refugees/asylees receive benefits including right to travel. But persons who have only withholding are not permitted to travel. Asylum in the Context of Expedited Removal Asylum Chat Outline For Discussion Purposes Only 6

7 What can we do to extend asylum rights to those subject to reinstatement? Request that Asylum Office consider reasonable fear interview as credible fear interview instead, in recognition of contradictory statutes and regs, and widespread flaws in reinstatement process (e.g., where individuals have been previously apprehended at border, may not have been asked the protection questions, were not aware of their implications, were so sleep deprived they could not readily answer them, or the officer recorded a negative answer even when the individual claimed fear). The Chicago Asylum Office has been favorably responding to these requests. Pursue asylum in withholding-only proceedings despite the prohibition, appeal to BIA when denied, and petition for review with appeals court, challenging DHS s position that reinstatement bars asylum. If unsuccessful in reasonable fear proceeding, file petition for review with appeals court. E.g., challenge DHS position as above, and argue but for being limited to the standard for withholding only, I would qualify for asylum. Request that ICE exercise PD to not reinstate individuals with prior removal orders, or vacate reinstatement, and initiate new removal proceedings under 240 instead. DHS has discretion to forgo reinstatement in favor of initiating new removal proceedings. Villa-Anguiano v. Holder, 727 F.3d 873, 878 (9 th Cir. 2013) (nothing in 241(a)(5), 8 USC 1231(a)(5), or its implementing regulations deprives the agency of discretion to afford an alien a new plenary removal hearing). More ideas? Asylum in the Context of Expedited Removal Asylum Chat Outline For Discussion Purposes Only 7