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DHS Statement On Expedited Removal Procedures Inaccurate

by William Youmans

DHS misstated facts in its press release on its motion to end the ‘Orantes’ Injunction.

WASHINGTON, D.C. - The Department of Homeland Security released a statement on November 17th regarding its intention to try to dissolve the Orantes injunction.   The Catholic Legal Immigration Network, Inc. (CLINIC) is concerned that DHS’s public statement in opposition to the Orantes injunction misrepresents its compliance with its own expedited removal procedures and detention standards.  

The Orantes injunction requires that when the government arrests Salvadorans without a warrant, it must provide them with specific notice of their right to a hearing to seek asylum.  The injunction also facilitates their access to counsel and sets limits on how quickly they can be transferred out of the jurisdiction of apprehension.  Expedited removal allows DHS to remove select immigrants – those who have no or improper documents -- without a hearing before an Immigration Judge.   The United States Conference of Catholic Bishops (USCCB), CLINIC’s parent agency, has long opposed the use of expedited removal – including the recent expansion of this program to persons caught within the United States – because it risks returning migrants to countries where they may face persecution.

Orantes was intended to counter the government’s well-documented bias that discouraged El Salvadorans from filing for asylum and encouraged them to give up their right to a hearing.  CLINIC agrees with DHS that country conditions in El Salvador have changed.  While approval rates for Salvadoran asylum claims are roughly the same now as they were in 1982, this speaks largely to the bias against Salvadoran asylum claims at that time.  At the same time, CLINIC continues to see “a substantial number of Salvadorans who … possess good faith claims to asylum,” as the Orantes court found.  CLINIC strongly disagrees with the other rationale provided in support of dissolving the Orantes injunction.

By stating that the Orantes “injunction jeopardizes national security,” DHS implies that Salvadoran asylum-seekers represent a threat to national security.  “Salvadorans do not represent a threat to our security,” said Mr. Kerwin, “and there is no evidence that adherence to the Orantes standards inhibits DHS’s ability to protect the country.”

DHS’s press release also features several statements that mischaracterize its compliance with its own expedited removal procedures and its detention standards.  The release asserts that expedited removal meets the due process concerns addressed in Orantes, and states that “many aspects of the injunction have become part of standard operating procedures.”  Additionally, the release claims that detained immigrants “are generally provided a list of free legal service providers,” and “access to telephones, a law library, generous legal visitation hours, and the opportunity for legal service providers to give group legal presentations to detainees.” 

Although DHS maintains that its detention and expedited removal standards make Orantes redundant, in CLINIC’s experience these standards are not consistently met.  The “Study on Asylum Seekers in Expedited Removal” conducted by the United States Commission on International Religious Freedom (USCIRF) did not find a single DHS detention facility in compliance with the law library regulations.  The “generous legal visitation hours” are mitigated by the fact that most of the 185 detention facilities are in rural areas.  They are usually a great distance from deportees’ families, their legal representatives, and organizations able to provide group presentation programs.

DHS also claims that expedited removal procedures guarantee that those fearful of "return to their country” are given a chance to make an asylum claim.  However, credible reports show that the expedited removal system often returns migrants to countries where they risk persecution, torture, and death.  The USCIRF study found that one in six migrants who expressed a fear of persecution was denied the opportunity to apply – a procedural and legal violation.   The United Nations High Commissioner for Refugees (UNHCR) has also reportedly found similar problems.  In particular, immigration inspectors fail to provide certified translators, give interested consulates inaccurate identities of asylum-seekers, and make mistakes that impact the outcomes of their decisions.  These deficiencies undermine DHS’s claim that the expedited removal system will safeguard the rights of El Salvadoran asylum-seekers.

“The USCCB opposes the expedited removal process and the recent decision to expand it beyond ports-of-entry,” says Kerwin.  “CLINIC is particularly concerned with the attempt to dissolve Orantes at a time when DHS does not fully comply with its own expedited removal procedures or its detention standards.”

About The Author

William Youmans is affiliated with the Catholic Legal Immigration Network, Inc. (CLINIC). CLINIC is a subsidiary of the U.S. Conference of Catholic Bishops and the nationís largest network of charitable immigration services with 156 affiliates in 260 field offices around the country. CLINIC advocates for transparent, fair and generous immigration policies.

The opinions expressed in this article do not necessarily reflect the opinion of ILW.COM.