WHEN SHADOW REMOVALS COLLIDE: SEARCHING FOR SOLUTIONS TO THE LEGAL BLACK HOLES CREATED BY EXPEDITED REMOVAL AND REINSTATEMENT.

Author:Koh, Jennifer Lee
 
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Immigration scholarship has begun to explore the prominence of shadow removals--deportations that are executed by front-line agency officials acting outside the presence of an immigration judge--which now constitute the majority of all reported removals. This Article explores two of the most common forms of shadow removals, expedited removal and reinstatement of removal, and the collision of the two. Expedited removal has typically been perceived as a border enforcement tool, used against persons with limited ties to the United States. Reinstatement of removal exists for persons who enter the U.S. without authorization following a prior removal. The rising use of each streamlined procedure is, on its own, troubling from a fairness, accuracy, and rule of law perspective. But like chemical compounds mixing and creating new substances, expedited removal and reinstatement interact to produce unique situations in which the law renders people forever subject to immediate deportation based primarily on the existence of a brief encounter at some point in the past with a border official. These situations are akin to legal black holes in immigration law, and have not been examined in any of the scholarly literature to date.

This Article is the first to consider the interplay of expedited removal and reinstatement. It traces the operation of the two removal processes, both independently and in combination with each other. It emphasizes the harsh statutory bars on judicial and habeas review, and the resulting inability of the federal judiciary to ameliorate the harshness of removal in this context. The Article then suggests that the use of reinstatement based on prior expedited removal orders fails the basic administrative law requirement that federal agencies demonstrate reasoned decision-making and avoid arbitrary or capricious action. Relying on the Supreme Court's decision in Judulang v. Holder, which applied arbitrary and capricious review in the deportation context, the Article encourages courts to more closely scrutinize the use of reinstatement based on expedited removal.

TABLE OF CONTENTS INTRODUCTION I. WHEN SHADOW REMOVALS COLLIDE: UNDERSTANDING EXPEDITED REMOVAL AND REINSTATEMENT OF REMOVAL A. Regular Removal Proceedings B. Expedited Removal at the Border and Beyond C. Reinstatement of Prior Removal Orders II. LEGAL BLACK HOLES: THE ABSENCE OF JUDICIAL REVIEW A. Judicial and Habeas Review of Expedited Removal B. Judicial Review of Reinstated Removal Orders and the Expedited Removal Exception III. SEARCHING FOR SOLUTIONS: THE INADEQUACY OF CONVENTIONAL CHALLENGES TO EXPEDITED REMOVAL AND REINSTATEMENT A. Statutory Claims and Constitutional Avoidance B. Procedural Due Process IV. A MODEST SOLUTION: ARBITRARY AND CAPRICIOUS REVIEW FOR REINSTATEMENT ORDERS BASED ON EXPEDITED REMOVAL A. Immigration Policy Subject to Arbitrary and Capricious Review Under Judulang B. Reviewing the Intersection of Expedited Removal and Reinstatement Under the Arbitrary and Capricious Standard CONCLUSION INTRODUCTION

Israel Barrios was minutes from home and on his way to work in the city of Santa Ana, California when immigration officials arrested him in early October 2017. (1) Barrios had first come to the United States in the late 1990s after crossing the border without immigration papers. (2) He settled in the state of Georgia, had six U.S. citizen children, and worked to provide for his family. Around 2010, he pled guilty to misdemeanor driving without a license, the only offense on his record. Sensing the political tides turning against undocumented immigrants, Barrios returned to his home country of Mexico after more than a decade of living in the United States. But while in Mexico, gang violence and other dangers compelled him to return to the United States around 2012. (3)

The fact that Barrios returned to Mexico, only to return a second time to the United States, is not remarkable. But when he attempted to cross the U.S.-Mexico border, he was apprehended by Customs and Border Protection (CBP) officers who left Barrios with the impression that he was being ordered to return voluntarily to Mexico. (4) He did not have an opportunity to explain that he feared persecution in Mexico, as required by law. (5) In reality, as Barrios learned years later, he had received an expedited removal order. Barrios ultimately reunited with the rest of his family in the United States after this encounter with border officials, and settled in Santa Ana, California. After his arrest in October 2017, Barrios learned that due to the expedited removal order in 2012, federal immigration authorities could--but were not required to--designate Barrios for a truncated deportation procedure known as reinstatement of removal. (6) A front-line immigration officer chose to place him in reinstatement. In reinstatement, Barrios's only hope of avoiding immediate deportation was to establish that he had a reasonable fear of returning to Mexico. (7) He could not ask an immigration judge (IJ) or federal court to review the legitimacy of the expedited removal order, and he could not seek other claims to relief available under the immigration laws. (8) Indeed, had he not received pro bono legal representation, media attention, and strong community support, it is quite likely that Barrios would have been deported within days of his arrest without ever seeing an IJ.

Israel Barrios's case illustrates several trends in immigration enforcement under the Trump Administration. (9) But this Article is focused on the process--or lack of process, rather--received by Barrios and scores of others situated at the crossroads of expedited removal and reinstatement of removal. Cases like Barrios's are not a product or phenomenon of the current Administration alone, but could become far more common if left unchecked by the courts.

A nascent literature emphasizes how deportation has increasingly moved outside the control of the immigration courts and into what I have called elsewhere the "shadows" of immigration court. (10) Such removals have altered the landscape of immigration adjudication and enforcement over the past two decades. The conventional wisdom about immigration adjudication states that removal decisions are adjudicated by IJs presiding over immigration courts. (11) But the conventional wisdom no longer applies, with immigration judge-issued removal orders becoming the exception rather than the norm. Through a variety of mechanisms, including an administrative removal process for non-lawful permanent residents with aggravated felony convictions (12) and the availability of processes in which noncitizens stipulate to their own removal, (13) the vast majority of removals now take place with little to no participation by immigration courts and IJs. (14) Expedited removal and reinstatement account for the lion's share of the panoply of shadow removals, and constituted about eighty-five percent of all removals in fiscal years 2015 and 2016. (15) Most of the literature thus far has focused on recognizing the rise of summary removals, identifying their harms, tracing the judiciary's deference to their use, and comparing them to immigration court adjudication. (16) Indeed, each form of summary removal is governed by a unique statutory and regulatory framework, and raises problems related to fairness, accuracy, and the rule of law. (17) But no scholarly work to date has focused on the combination of two shadow removals (here, expedited removal and reinstatement of removal), how they amplify each other's deficiencies, and how they together create situations in which government power over noncitizens reaches unprecedented and under-theorized levels. This Article seeks to fill that gap.

A deeper understanding of removals that bypass the courtroom has become increasingly urgent in the current political climate. President Trump has displayed great interest in minimizing the role of the immigration courts, as shown in a June 24, 2018 tweet declaring that, "When somebody comes in, we must immediately, with no Judges or Court Cases, bring them back from where they came." (18) But long before that tweet, the Trump Administration signaled that its reliance on summary removals--specifically expedited removal--could proliferate. Within days of taking office, the Trump Administration issued a series of immigration-related executive orders that, read together, lay the groundwork for a period of mass deportation and detention. (19) The executive orders conveyed significant shifts in the Administration's immigration and border enforcement plans, (20) for instance, by treating nearly all undocumented immigrants (and some legal immigrants) as deportation priorities, (21) expanding immigration detention, (22) and encouraging state and local law enforcement collaborations with federal immigration enforcement efforts. (23) Of the many shifts in immigration enforcement policy signaled by these orders, one of the most anticipated is the plan to expand the federal government's ability to use expedited removal in the interior United States. (24)

Throughout its history, expedited removal has been viewed primarily as a border enforcement tool. The government has generally constrained its use of expedited removal to persons arriving at ports of entry or for recent arrivals apprehended within 100 miles of the border. (25) Indeed, defenders of expedited removal have emphasized the relatively minimal ties of individuals subject to the process. (26) That may change in drastic, sudden ways under Trump Administration directives. The Administration has recommended expanding the use of expedited removal against persons anywhere in the United States who are believed to lack over two years' physical presence in the country. (27) Expanding expedited removal could allow a frontline, nonjudicial officer of a federal immigration agency to make adjudicatory assessments on the streets throughout the United...

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