A report entitled "Deportation without Due Process" reveals that over the past ten years the United States government has deported over 160,000 immigrants by having them stipulate to their own removal, thereby stripping them of their right to appear before an immigration judge.
The government has been regularly using stipulated removal against people being held in immigration detention that are unrepresented by counsel and who face deportation as a result of minor non-criminal immigration violations.
The government is basically giving these people an option: agree to be deported now, or stay in detention for what could be years while you fight your case.
Not cool. Not cool at all.
The report reveals that government officials:
- Provide immigrant detainees with inaccurate, misleading, and confusing information about the law and removal process.
- Overemphasized the length of time detainees would spend in detention if they chose to fight their cases and see a judge,
- Fail to tell detainees that they could secure release from detention on bond while fighting their cases, or that some might win the right to remain legally in the country.
The immigrant detainees are regularly not afforded an opportunity to have the consequences of signing stipulated removal translated into their native language, or explained by an attorney.
What is more troubling is that immigration judges have voiced their opinion that the stipulated removal program violates an individual's right to due process, and yet the practice continues. Some immigration judges have refused to sign stipulated removal orders as a result of the constitutional deficiency of the stipulation.
The report issues the following recommendations:
- The Executive Office for Immigration Review (EOIR), the sub-agency of the U.S. Department of Justice that oversees the immigration court system, should require immigration judges to hold brief, in-person hearings before signing off on stipulated removal orders for noncitizens who are not represented by attorneys. These should be individual hearings, similar in scope to plea colloquies in the criminal context.
- EOIR should expand access to counsel and legal information for noncitizen detainees, especially those whom the U.S. Department of Homeland Security (DHS) targets for stipulated removal. In detention facilities that offer legal rights presentations, U.S. Immigration and Customs Enforcement (ICE) agents should be barred from offering a detainee the option of a stipulated removal order until the person has had the opportunity to attend a legal rights presentation. ICE and EOIR should also require a 72-hour waiting period between when a detainee signs a stipulated removal order and when an immigration judge approves the order, to permit the detainee the opportunity to consult with an attorney. ICE should give detainees notice of this 72-hour period and provide them a list of local no-cost or low-cost legal service providers prior to obtaining their signature on a stipulated removal order.
- DHS should develop and institute training that is specifically aimed at preventing coercion and manipulation by ICE or U.S. Customs and Border Protection (CBP) agents in the stipulated removal process.
- DHS should ensure that language barriers do not jeopardize the integrity of the stipulated removal process. Stipulated removal forms must be competently translated into multiple languages, and detainees who do not speak English well should never be offered a stipulated removal without a qualified interpreter being present to help them understand exactly what they would be accepting if they signed the form.
- If any immigration judge in a given district raises concerns about the local process for offering stipulated removal to noncitizens, the chief immigration judge in that district should place a moratorium on the use of stipulated removals in that district until the chief judge and his/hercounterpart at ICE headquarters have resolved the concerns that have arisen in the district.
- ICE should be prohibited from using stipulated removal on vulnerable noncitizens and those with strong ties to the U.S. These include, at a minimum, children, people with mental disabilities, and lawful permanent residents.
- ICE should inform the public when it intends to use stipulated removal in a particular jurisdiction.
- ICE should publish statistics on its use of stipulated removal, at both the national and local levels, on an annual basis.
- Detainees (or their representatives) who call EOIRís toll-free (800) number for information about their immigration cases should be told whether or not they have signed a stipulated order of removal request.
- Instead of expanding stipulated removal, Congress and ICE should halt the expansion of immigration detention, provide for more alternatives to detention, and consider developing broader solutions to the nationís broken immigration system.
Click here to read the full report.
Matthew Kolken is a trial lawyer with experience in all aspects of United States Immigration Law including Immigration Courts throughout the United States, and appellate practice before the Board of Immigration Appeals, the U.S. District Courts, and U.S. Courts of Appeals. He is admitted to practice in the courts of the State of New York , the United States District Court for the Western District of New York, the United States Court of Appeals for the Second Circuit, and is a member of the American Immigration Lawyers Association (AILA).