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1.                  Introduction

Good afternoon.  My name is Karen Musalo.  I am resident scholar at the University of California, Hastings College of the Law.  For the past four years I served as founding director and principal investigator of The Expedited Removal Study (“Study”) a nationwide scholarly study of expedited removal.  During the past two years I have also served on two occasions as an expert consultant to the Commission on International Religious Freedom on matters involving expedited removal. I would like to thank you Mr. Chairman and members of the Subcommittee for the opportunity to testify regarding expedited removal.

II.            Background

Congress enacted the expedited removal law as part of the 1996 Illegal Immigration Reform and Immigrant Responsibility Act (IIRAIRA), and the new procedures were implemented in April 1997.   Expedited removal permits the summary return of persons[1] who are inadmissible for fraud or misrepresentation[2] or for lack of a valid or suitable travel document.[3] 

 

At ports of entry, immigration officers conduct initial examinations of all arriving individuals at primary inspection, and route persons whose admissibility is in question to secondary inspection, which is in a secure, closed area.  During secondary inspection, persons deemed to be inadmissible for fraud or lack of proper documents may be ordered removed without further process.  The removal order becomes final upon a supervisor’s approval, and bars reentry to the United States for five years.  The statute[4] permits the withdrawal of an application for admission in the discretion of the Attorney General, in which case the applicant may depart without being subject to the five year bar on reentry. 

Pursuant to the law, there are two groups of persons subject to expedited removal who are to be provided with additional procedural protections, rather than being immediately returned at secondary inspection: (1) those who claim a legal right to reside in the United States based on citizenship, permanent resident, asylee or refugee status, and (2) those who express a fear of persecution or an intention to apply for asylum. 

Persons who claim lawful status are to have such claims reviewed by an immigration judge.  Persons who express a fear of return or a desire to apply for asylum are to be referred to an interview with an asylum officer (AO) during which it will be determined if they have a credible fear of persecution.  A “credible fear” of persecution is established 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, that the alien could establish eligibility for asylum under Section 208.”[5]  

In order to assist in the identification of persons who fear return or desire to apply for asylum,  immigration officers are required to ask three questions (referred to as the “three fear questions”) during secondary inspection:   (1) why did you leave your home country or country of last residence?; (2) do you have a fear or concern about being returned to your home country or removed from the U.S.?; and (3) would you be harmed if you were returned to your home country?  Interpreters are to be provided if necessary for communication with the individual.[6]

Persons who express a fear of return to their home country or an intent to apply for asylum, in response to these questions or at any time during secondary inspection, are to be referred to a credible fear interview.  Among those to be referred are persons who express fear or an intent to apply for asylum through non-verbal acts. 

Persons who establish a credible fear of persecution at their interview with an asylum officer are permitted to apply for asylum.  Persons found not to have a credible fear may request review by an IJ.  There is no right to representation or to have a consultant present at this review.[7]  The statute precludes any further administrative or judicial review [8] in claimed status and credible fear cases, and persons who do not prevail before the immigration judge are summarily removed from the United States. 

 

The INA requires mandatory detention, until removal, of all persons subject to expedited removal proceedings.[9]  A narrow form of parole is available, in accordance with INA § 212(d)(5), if “the Attorney General determines, in the exercise of discretion, that parole is required to meet a medical emergency or is necessary for a legitimate law enforcement objective.”[10]  Once a person establishes a credible fear of persecution, he is no longer subject to expedited removal proceedings, but rather to regular removal proceedings under INA § 240, and therefore, may be eligible for parole under normal parole criteria.[11]  The INS has stated that persons subject to expedited removal who are determined to have a credible fear of persecution fall under the INS’s low priority detention group, and that “it is INS policy to favor release of aliens found to have a credible fear of persecution, provided that they do not pose a risk of flight or danger to the community.”[12]

III.            Concerns Regarding Expedited Removal 

Expedited removal represents one of the most fundamental changes in immigration law and policy, because it gives unprecedented authority to immigration inspectors to issue unreviewable orders of removal.  Before its enactment, every person deemed inadmissible by an immigration officer at a port of entry had the opportunity for a formal hearing before an immigration judge, and the right to appeal the judge’s decision to the Board of Immigration Appeals (BIA) and the federal courts   Asylum seekers were not required to establish a credible fear in a screening process in order to be permitted a full hearing on their claims.

At the time when Congress was debating expedited removal, its critics contended that the process created an unacceptable risk that bona ride refugees would be returned to situations of persecution. It was feared that asylum seekers, who are often weary and traumatized, would be unable to articulate their fear immediately upon arrival, especially if such persons had suffered particularly humiliating forms of persecution, such as rape or other forms of sexual torture.  There were also concerns that immigration officers might fail to comply with the requisite procedures — such as those requiring interpretation where necessary, or referral upon the verbal or non-verbal expression of fear — all of which could result in the summary removal of a bona fide asylum seeker.   Critics also questioned whether the credible fear standard applied by asylum officers would be applied too rigorously, screening out persons with legitimate claims for asylum.

In addition to these concerns focused on asylum seekers,  opponents of the process also criticized the fact that expedited removal gave immigration officers the authority to make final decisions on admissibility, which previously had only been made by immigration judges, and which were subject to administrative and federal court  review.  This was seen as having the potential to prejudice legitimate travelers to the United States, as well as citizens and lawful permanent residents, who are entitled to only one tier of review if denied admission by an immigration officer.

IV.       The Expedited Removal Study

The Expedited Removal Study was initiated in response to these, and other concerns regarding expedited removal, and was designed to examine all components of the procedure.  The Study’s objective was to determine whether expedited removal met the dual congressional goals of preventing abuse of the system, while ensuring that bona fide asylum seekers, individuals with lawful status in the U.S., and other legitimate visitors (e.g. business visitors or tourists) not be denied admission. 

The Study’s intended methodology contemplated cooperation with the Immigration and Naturalization Service (INS) so that researchers could have adequate access to observe and properly evaluate expedited removal procedures.  Of special interest to the Study was the area of secondary inspection, where immigration officers make decisions regarding referral of asylum seekers to credible fear interviews, admissibility of persons with claimed lawful status, and admissibility of arriving aliens in general. 

Unfortunately, the INS, which initially welcomed the idea of a study that could provide critical information to policymakers and the public,  refused to provide the requisite access to the process or its related data.  Consequently, the Expedited Removal Study was forced to modify it research strategy and concentrate on the collection of data from attorneys and non-governmental organizations (NGOs) that represent persons who have been subject to expedited removal.  The Study has also utilized the Freedom of Information Act (FOIA) process to obtain data from the INS and the Executive Office for Immigration Review (EOIR).

 

The Expedited Removal Study has issued four reports on the expedited removal process; the last of its reports, issued in October 2000, was an evaluation of the General Accounting Office’s research on expedited removal.   In general, the Expedited Removal Study has identified a number of issues of substantial concern arising both from its analysis of statistical data, as well as its investigation of the processing in individual cases.   These issues give rise to the question  whether bona fide asylum seekers, individuals with lawful status in the U.S., and other legitimate visitors (e.g. business visitors or tourists) are being improperly denied admission. 

Select Case Studies  from The Expedited Removal Study

From April 1997 through October 1999,[13] almost 190,000[14] had been subject to expedited removal, and if the trend from 1997 to 1999 is any indication, the use of expedited removal  may be expected to increase.[15]  In this time period, the clear majority of persons removed under expedited removal — 99% — were removed at secondary inspection without a referral to a credible fear interview or claimed status review.  The high percentage of cases involving a removal at secondary inspection underscores the importance of evaluating that stage of the proceeding.

The Expedited Removal Studies has identified a number of cases which illustrate serious problems at secondary inspection, ranging from the failure of immigration officers  to comply with required procedures, to affirmative misconduct on the part of officers.  Because the INS has not permitted on-site observation, which would have allowed the Study to engage in a comprehensive analysis of processing at secondary inspection, it is not possible to conclude whether or not these troubling cases are representative of expedited removal cases in general.  The following case studies, which are excerpted from the Study’s annual reports, provide examples of failures in the expedited removal process.

Asylum Seekers

·                    Mr. A, an Algerian Asylum Seeker[16]

Mr. A, a twenty-six year old citizen of Algeria, was an active member of the Islamic Salvation Front (FIS), a major opposition political party, in 1990-92.  FIS was outlawed by the military government in 1992, and elections that FIS was expected to win were canceled.[17]  From 1993-94, Mr. A was employed as a gardener for Benjadid Chadli, a former Algerian president.  Early in 1994, while visiting his parents, Mr. A was arbitrarily detained and tortured for several days while in police custody.  In late 1994, members of the Armed Islamic Group (GIA), a militant anti-government Muslim organization, broke into his family’s home, abducted him and sought his cooperation in a plot to assassinate his employer.  Mr. A quit his job out of fear and fled to the home of a friend.  Months later, Mr. A and his friend encountered a group of GIA members who threatened their lives.  After forcing them to a private area, the group beat both men, shot Mr. A’s friend dead in front of him, and then again demanded Mr. A’s cooperation with the assassination, saying it was his last chance.

Mr. A fled to another city, where he was working in 1996 when his brother was arrested at the airport as he was attempting to leave the country to study abroad.  Mr. A obtained a lawyer to help his brother, who was charged with treason, convicted and sentenced to twenty years in prison.  Mr. A was arrested and released by police at the courthouse where his brother’s hearing was taking place.  In 1998, Mr. A’s family was again targeted by the GIA when a group of rebels ransacked their home in search of Mr. A, then fled after engaging in a gun battle with police.  Later in 1998, Mr. A was again arbitrarily arrested by Algerian security forces, detained and tortured over a fifteen day period.[18]

After this event, in September 1998, Mr. A fled Algeria. He traveled to Bulgaria and then to southeast Asia throughout 1999, eventually arriving in the U.S. at San Francisco International Airport on a flight from Shanghai, China, on January 30, 2000.  Mr. A was traveling on a false Spanish passport which he disposed of after exiting the airplane.  He approached an INS officer at primary inspection and asked for asylum.

 

Mr. A was referred to secondary inspection.  He explained with his limited English that he had destroyed his passport, which he reported appeared to have upset the INS officers.  Although the regulations require interpretation under these circumstances,  there was no interpreter at this point.  Without interpretation Mr. A had difficulty understanding what the officers said to him, but he believes that one of the officers said, “Algerians go back to Algeria.”  Mr. A was shackled hand and foot and held in a room together with an Iraqi man who was also shackled.  An INS officer came into the room and asked Mr. A if he spoke English.  Mr. A indicated that he did not, but a second officer said that Mr. A did speak English but did not want to talk.  Mr. A reported that the first INS officer seemed very angry at him. 

Mr. A reports that he was taken by the first officer to a room where his handcuffs were removed.  There was still no interpreter present.  The INS officer told Mr. A to write down his name, and began typing into a computer.  With his limited English, Mr. A repeated that he wanted asylum.  Pursuant to expedited removal procedures, this should have resulted in a referral to a credible fear interview unless it became apparent from follow-up questions that the reason for his fear was totally unrelated to the refugee definition.  Instead of being referred, the officer reportedly told him several times, “[t]onight, you go back to China” (the country he had transited immediately before his arrival in the United States).  When Mr. A said he would be killed if he was returned to Algeria, the INS officer said that he did not care.  Mr. A was upset and crying.  When the officer briefly left the room, Mr. A grabbed a coffee cup, broke it against the desk, and stabbed himself in the abdomen, causing a deep wound.  He then began slamming his head into the table.  INS officers came into the room and restrained him.  An incident report prepared later that day by an INS supervisor states that the stabbing occurred while the interviewing officer was out of the room to obtain a telephonic interpreter.

Mr. A was taken to a hospital by ambulance, where he received stitches in his stomach.  After a few hours at the hospital, Mr. A was brought back to the INS airport office for his secondary inspection interview.  Mr. A was exhausted and in pain.  At this point an interpreter was brought in, and Mr. A was interviewed by a different INS officer in his native Arabic.  At the conclusion of the interview, Mr. A stated that he would be harmed if he was returned to Algeria.  His case was referred to the Asylum Office for a credible fear interview.  Mr. A was returned to the hospital, where he was seen by psychiatric emergency staff.[19]  He spent the night at the airport, and was taken the next morning to the INS office in San Francisco, then to Marin County Jail.

 

Mr. A’s credible fear interview took place February 14, 2000, in San Francisco.  The interview, conducted in his native Arabic, lasted two hours and twenty minutes.  Mr. A was found to have a credible fear of persecution on account of political opinion.  After spending approximately five months in detention he was released from custody, and was granted asylum in the summer of 2000. 

·                    Mr. C, an Egyptian Coptic Christian Asylum Seeker[20]

Mr. C is a twenty-five year old Egyptian citizen who worked in Egypt as an accountant and volunteered in a Coptic Christian church as a bread baker in his spare time.  He was active in the church and identifiable as such in the neighborhood because he was in and out of the church on a regular basis.  His religion could also be easily determined by his name.  Mr. C  was harassed and assaulted many times, including one incident involving a serious beating.  The State Department has documented discrimination and other serious abuses of Christians in Egypt.[21] 

Mr. C first came to the United States in mid-1998 on a tourist visa.  During this visit, Mr. C volunteered at a Coptic church as a baker and worked at a restaurant for several months.  In late 1998 he applied for and was granted an extension of his authorized stay.  When his extension expired in mid-1999, Mr. C returned to Egypt.  On his return, a Muslim group sought to extort money from him in the form of an unofficial “tax.”  Mr. C was told that he either had to pay the tax or convert to Islam.  Mr. C reported that the group had identified him as a target because he had traveled to the U.S. and was assumed to have money.

As a result of these threats, Mr. C fled to the U.S. intending to seek asylum, arriving at a New York-area airport in September 1999.  Mr. C was carrying his Egyptian passport with a valid tourist visa.  He was referred to secondary inspection, where he spent most of the next eight hours shackled to a bench.  A search of his belongings turned up a Social Security card, and Mr. C admitted to having previously worked in the U.S. without permission.

During his interview with an INS officer at secondary inspection,[22] Mr. C was asked whether he feared return to Egypt.  Mr. C reported that, as he attempted to explain the problems he faced from Muslims, the INS officer interjected: “I am a Muslim.  What is your problem with Muslims?”  Mr. C was taken aback by the officer’s statement.  He said that he could explain but was concerned about his government finding out about his claim to asylum.  According to Mr. C, the INS officer then told him that the INS would contact the Egyptian government about his case.  Both of these statements by the INS officer were highly inappropriate, and made Mr. C extremely anxious, and he proceeded to respond to questions with neutral, careful answers, making sure that he said nothing disparaging of the government or about Islam.  Intimidated by the remarks of the INS officer, Mr. C said that he was not seeking asylum.  As a result, Mr. C was not referred to the Asylum Office for a credible fear interview and was detained pending his imminent removal from the United States.

While in detention, however, Mr. C telephoned his sister in Egypt, and she informed him that the Muslim group had been looking for him since he left.  She urged him not to return, saying that it was not safe for him in Egypt.  Mr. C then contacted an INS officer at the detention facility and explained that he was afraid to return to Egypt and wished to seek asylum in the United States.  Mr. C was referred for a credible fear interview and was subsequently found to have a credible fear of persecution.  In February 2000, after five months in detention, Mr. C was granted asylum by an immigration judge.

·                    A, Y and W — Ecuadoran Asylum Seekers[23]

Mr. A, an Ecuadoran businessman, went into hiding after giving information to the police about a major crime in Ecuador.  On July 1, 1995,  gold and jewelry worth twenty billion sucres (five million U.S. dollars) was stolen from an office of the Instituto Ecuadoriano de Seguro (IESS), Ecuador’s Social Security department.  The press dubbed the huge theft “El Robo del Siglo” (“The Theft of the Century”), and a large reward was offered in return for information leading to the discovery of the perpetrators.  One of Mr. A’s friends, Mr. Z, had some contacts in the town where the theft had taken place, and they obtained information about the perpetrators of the crime.  Mr. A, Mr. Z and two other friends (Mr. X and Mr. Y) promptly went to the National Police and the IESS to report what they had learned.

About a month later, the four men began to receive anonymous threats over the phone and by mail.  Mr. A received three such phone calls.  He was told that he would be killed because he had given information about the theft to the police.

In March 1996, acting on the information provided by Mr. A and his friends, the police arrested a number of suspects and charged them with participation in the theft.  The suspects included a police officer and a well-known gang leader (who was later released).  Two other police officers were implicated but never indicted.  Following the arrests, Mr. X was attacked by unknown assailants, stabbed repeatedly with a machete, and left for dead.  He was found and taken to the hospital.  Upon Mr. X’s recovery, he fled Ecuador and went to Colombia; Mr. A has not heard from him since.

After this incident, Mr. A and his other friends went into hiding.  Mr. Z eventually left for Belgium to seek asylum.  Mr. A and Mr. Y hid in the home of a relative, Mr. W.  They soon began to receive threatening notes and phone calls.  They were afraid to report anything to the police because police officers were involved in the theft.  After a few months, Mr. A and Mr. Y hid in another home located in a remote area.  Members of Mr. W’s family were targeted for helping the two men; one woman was attacked by three men while bringing food to the men in hiding.  After that attack, Mr. A, Mr. Y and Mr. W sought assistance from the Comision Ecumenica de Derechos Humanos (CEDHU), a human rights organization.  They were advised to leave Ecuador.  The CEDHU obtained visas for the three men and made arrangements for them to travel to England to seek asylum.

Mr. A and his two friends left Ecuador in mid-1997 with legitimate travel documents and British tourist visas.  Although their destination was London, their flight had a stopover in Miami, Florida.  Their flight from Quito had been delayed, and they missed the connecting flight.  While the three men waited in the lounge for the next plane, Mr. A and Mr. W were summoned over the intercom to an immigration office where they were questioned about their travel plans.  Mr. A explained that he and Mr. W were on their way to London to apply for asylum.  An immigration officer told Mr. A that he did not believe that Mr. A had an asylum case and accused Mr. A of lying.  The officer inspected the two Ecuadorans’ documents.  While Mr. A and Mr. W were being questioned, their plane departed.  Mr. Y, who had not been summoned, left on that flight.  He has applied for asylum in the United Kingdom, and his case is under review.

Eventually, Mr. A and Mr. W were told that they would be allowed to continue on to London.  There were no other flights scheduled that day, so they slept in chairs at the airport, under surveillance.  The next morning they were escorted aboard a flight to London.

In London, Mr. A and Mr. W were met by British immigration officials and they requested asylum.  A British immigration officer examined their passports.  Both passports had been stamped TWOV (Transit Without Visa)[24] by the INS in the United States.  The immigration officer explained that new laws in England prevented Mr. A and Mr. W from applying for asylum because the TWOV stamp indicated that they had made an entry in another country where they should have sought asylum.  The two men were told that they would be sent back to the United States where they could apply for asylum.  They were each given a document, Notification to Third Country Authority, which stated that the bearer had applied for asylum in the United Kingdom and his claim had “been refused without substantive consideration because there is a safe third country” to which he could be sent.  They were told to present the document upon arrival and were assured that they would not be deported from the United States.

That same day, Mr. A and Mr. W were escorted onto a flight bound for John F. Kennedy International Airport in New York.  When they arrived, they were taken directly to an immigration office at the airport.  Mr. A told an immigration officer that he wanted to apply for asylum because he was in danger in Ecuador.  He showed the officer the British immigration document regarding their applications for asylum, but he was told: “We have a different policy here.”  Mr. A was concerned and upset at the possibility of being returned to Ecuador.  He said that he wished to apply for asylum in the United States, as the British officials had told him he would be able to do so, but he was simply ordered to sit down.  The two men were not allowed to make a telephone call.  An immigration officer informed Mr. A and Mr. W that they were to be returned to Ecuador the next day.

The two men spent the night under guard at a nearby hotel; Mr. A was given no food, was not allowed to bathe and was handcuffed to a table next to the bed for the entire night.  The next morning Mr. A and Mr. W were escorted aboard a flight to Ecuador.  During a stopover in Miami, Mr. A explained his situation to some Spanish-speakers; they gave him money and he placed a call to CEDHU in Ecuador.  That organization was able to make calls on their behalf to UNHCR in the United States, but was unable to prevent their return to Ecuador.  Based on what they had been told in New York, the two men did not seek asylum while in Miami because they believed they were not eligible.  They were returned to Ecuador.  After his return, Mr. A fled once again.  According to the latest information received by the Study, Mr. A has pursued a refugee status claim in a European country.[25]

As an interesting postscript to this case, it should be noted that one court in the United Kingdom has addressed the issue of whether the United States is a safe third country, and has decided that it is not.  This decision was rendered in the case of  another Ecuadoran asylum seeker, Mr. Juan Carlos Paredes Naranjo,[26] who was summarily removed from the United States under similar circumstances to the applicants in the case study described above.  

Mr. Paredes Naranjo transited through Miami before he arrived in the U.K. and requested asylum.  He was not permitted to apply in the U.K., but pursuant to the safe third country principle was returned to the United States to seek asylum.  When he arrived in Miami and expressed his desire to apply for asylum, he was told that he could not do so because he had already applied in the U.K.   He was immediately put on a flight to Ecuador.  The U.K. court ruled that under these circumstances it did not consider the U.S. to be a safe third country as to Mr. Paredes Naranjo because it had sent “him to another country or territory [i.e. Ecuador] other than in accordance with the [Refugee] Convention.[27] 

Non-Asylum Seekers

Although it has not been its main focus, the Expedited Removal Study has also reported on the application of expedited removal to non-asylum seekers, including citizens and those in possession of facially valid non-immigrant visas.

·                    Sharon McKnight — U.S. Citizen[28]

On June 10, 2000, Sharon McKnight, a United States citizen, arrived at New York's John F. Kennedy Airport on a flight from Jamaica.   Ms. McKnight, who had been in Jamaica for months to visit a sick grandfather, was born in New York in 1965.   She was referred to secondary inspection because INS officials thought her passport was fake.  Ms. McKnight, who is said to have the mental capacity of a five year old, was handcuffed and left overnight in a room at the airport with her legs shackled to a chair.

Ms. McKnight's family members, who were very concerned about her traveling by herself, were at the airport to greet and accompany her.  They became concerned when she did not appear for two hours, and learned of her detention after making inquiries.  They produced a birth certificate, but INS officials deemed that to be fake as well.   Family members stayed at the airport until the next morning,  pleading for her release, but Ms. McKnight was returned to Jamaica on a morning flight.  Upon her arrival there, she was able to find her way to the home of a relative after baggage porters at the airport donated her bus fare.

The INS asserted that the photograph in Ms. McKnight's passport had been replaced. .  An INS assistant area port director told a reporter: "Obviously, we would not send a U.S. citizen back under any circumstances."[29]   An INS public affairs officer later said that McKnight had told inspectors that she was born in Jamaica, was coming to the U.S. to work and that her passport had come from a relative.  "Based on all the evidence they had, the inspectors at Kennedy Airport made the reasonable decision that she was not admissible to the United States," he said.[30]  Ms. McKnight's mother, Eunice Benloss-Harris, said: "They were asking her a lot of questions she cannot answer. She can't even read or write. This is a disgrace."[31] .

Ms. McKnight returned to the U.S. on June 18, with the assistance of New York Representative Michael Forbes, after her status as a U.S. citizen was confirmed in a meeting with the U.S. Consul General in Jamaica and reviewed by State Department officials in Washington, D.C.   INS officials met McKnight at the airport as she disembarked, and apologized.  "We believe the individual is a U.S. citizen," Mark Zorn, an INS spokesman, told a reporter.  "We personally regret the circumstance that led to this situation and any harm this situation unduly caused the individual and the family."[32]   At an airport news conference, McKnight stated: "They treated me like an animal .... I will have nightmares all my life."[33]  Id.

·                    Mr. G.P. — Holder of a Facially Valid Non-Immigrant Visa[34]

Mr. G.P.,  a Venezuelan national, was a long-term employee of F Corporation, a multinational corporation doing business in the U.S. and several other countries, and served as F’s District Manager of Sales at F’s Miami, Florida offices.  Mr. G.P. obtained an L-1A visa, which permits certain non-U.S. citizen employees of multinational corporations to enter and temporarily stay in the United States as intracompany transferees.  Between March 1996, and July 1996, Mr. G.P. traveled between Venezuela and Miami on numerous occasions without incident.  In July, 1996, Mr. G.P.’s inspection was deferred.  The immigration officer conducting the deferred inspection concluded that Mr. G.P.’s documents were proper and that he should be admitted.  Thereafter, Mr. G.P. made several entries into the United States without incident.

On June 15, 1997, Mr. G.P. arrived at Miami International airport and presented the same documents he had presented in the past—a valid Venezuelan passport with an unexpired L-1A visa.  However, this time, Mr. G.P. was questioned by immigration officials, detained at the airport overnight, and then returned to Venezuela the next morning.  He was issued an expedited removal order, as he was deemed to have an immigrant intent.  Under the order, Mr. G.P. would be barred from entering the U.S. for five years.

The immigration officer’s denial of admission on the basis of Mr. G.P.’s immigrant intent was clearly erroneous.  Although the L-1A visa is a non-immigrant visa, it permits dual intent; i.e., it explicitly allows the individual to qualify for the visa even though he may have immigrant intent.

F Corporation filed a complaint against the INS and the Attorney General to the Miami U.S. District Court, alleging, among other things,  that the expedited removal order issued by the defendants violated the immigration stature and relevant regulations.

After spending over $50,000 in attorney fees, F Corporation reached a settlement with INS whereby INS re-issued Mr. G.P. a valid visa and canceled the order of expediting removal against him.  In addition, INS agreed that any computer-generated advisories concerning Mr. G.P.’s previous visa cancellations would be removed from its databases.

22.              The General Accounting Office’s Studies of Expedited Removal

Congress has twice directed the General Accounting Office (GAO) to carry out evaluations of the expedited removal process.  Neither of its studies have adequately answered questions or alleviated concerns regarding improper or erroneous decision-making in the expedited removal process.

Congress’ first request for a GAO study was included in IIRAIRA itself, and directed the GAO to determine, among other issues,   “the effectiveness of such procedures in processing asylum claims by undocumented aliens who assert a fear of persecution, including the accuracy of credible fear determinations.”[35]  

The GAO’s March 1998 report,[36]  produced in response to the congressional request, principally examined INS management controls over the expedited removal process, reported on a range of INS expedited removal statistics, and compared the expedited removal process to previously existing exclusion procedures.  The GAO declined to evaluate the accuracy of credible fear determinations, stating that it did not possess the legal expertise to carry out such an assessment.

The GAO also declined to engage in a meaningful amount of on-site observation which would have allowed it to assess INS compliance with controlling laws and policies, as well as to evaluate qualitative aspects of the expedited removal process, such as the availability and quality of translation.

In the fall of 1998 Congress requested a second GAO study; this request was included in the International Religious Freedom Act of 1998 (IRFA), and directed the GAO to answer four specific questions regarding expedited removal:

·                    whether INS officers improperly encourage asylum seekers to withdraw applications for admission;

·                    whether INS officers fail to refer asylum seekers to credible fear interviews;

·                    whether INS officers incorrectly remove asylum seekers to countries where they may be persecuted; and

·                    whether INS officers improperly detain asylum seekers or detain such persons under inappropriate conditions.

The four questions addressed all phases of the expedited removal process, and demonstrated a concern about possible INS misconduct, as well as the potential for erroneous decision-making.  The first and second questions focused on the implementation of expedited removal at the ports of entry where immigration officers make decisions whether to refer asylum seekers to credible fear interviews, and, as question one itself reflects, where the opportunity exists for the officers to pressure asylum seekers to withdraw their requests for admission, rather than to pursue their claims.  The third question constituted an inquiry into all phases of the expedited removal process, from ports of entry, through asylum officer and immigration judge decision-making on credible fear, and asked whether the process as an integrated whole is likely to render incorrect decisions which could result in the return of asylum seekers to persecution.  The fourth question focused specifically on detention issues, and asked whether asylum seekers who qualify for release nonetheless remain in detention, and whether persons who are detained are held in suitable conditions.

Prior to embarking on its study, GAO apprised the relevant congressional committees it would not attempt to directly answer the questions set forth by Congress in IRFA because it did not have the legal expertise, feasible methodology or resources to do so.  In an effort to be what GAO has characterized as “reasonably responsive” to the questions, GAO proposed to the congressional committees an approach which focused primarily on INS management controls over the expedited removal process. The GAO’s proposal also included an analysis of certain statistics on expedited removal and detention, as well as an evaluation of specified aspects of detention.

The GAO released its second report on expedited removal in September 2000.[37]  Nothwithstanding its intention to be “reasonably responsive” to the questions posed by Congress, its report leaves all four questions largely unanswered. [38]  Nonetheless, the GAO did report on a number of specific aspects of expedited removal which heighten existing concerns regarding expedited removal.  The GAO’s findings included the following:

·                    In a random sample of fiscal year 1999 expedited removal files, in 2% of the cases, a fear was expressed but there was no referral to a credible fear interview.  If this random sample is representative, as many as 900 persons in fiscal year 1999 may not have been referred despite expressing a fear.  A breakdown by port indicates a failure to refer rate at JFK which could be as high as 6%.

·                    A random sample of withdrawal associated with three specific ports of entry indicated that a significant percentage of persons (as high as 21%) were not asked the “three fear questions” which are part of required procedure to assist in the identification of asylum seekers. 

·                    A failure to establish nexus between the persecution and one of the five statutory grounds (race, religion, nationality, political opinion or membership in a particular social group) was the basis for denial in 44 of the 45 cases the GAO examined in which there was an adverse credible fear determination.  Nexus determinations can involve highly complicated factual and legal issues, and the credible fear interview, which is not intended to be a full asylum hearing, may not be an inappropriate venue for making such complex decisions.

·                    There is a higher likelihood of a negative credible fear determination at some asylum offices than at others, which raises the question as to whether adjudication standards are applied uniformly.

·                    District directors do not appear to be consistently applying INS policy and parole criteria, which may result in non-uniform parole decisions in the cases of asylum seekers.

·                    Conditions varied in the detention facilities, as well as at ports of entry, resulting in asylum seekers receiving widely disparate treatment depending solely on the location of their detention and the degree of a particular facility’s compliance with standards. In violation of INS, American Correctional Association (ACA) and United Nations High Commissioner for Refugees (UNHCR), detained asylum seekers are not segregated from the criminal population.

VI.            Conclusion

April 2001 marked four years since the implementation of expedited removal.  The number of annual expedited removals may well be approaching 100,000, and if past trends are any indication, 99% of those individuals are removed without any further process.  Researchers, refugee advocates, and the media have all reported on a disquieting number of cases involving  asylum seekers and non-asylum seekers alike who have not been processed in accordance with the law.   In some instances, the reported cases have indicated a failure of protection to asylum seekers even where there has been compliance with the law,[39] which raises questions as to whether the procedures themselves are adequate.  Congress has reasons for serious concerns as to whether its objectives of  deterring fraud while protecting bona fide refugees, and other individuals legitimately seeking admission to the U.S. are being met.


[1]  Expedited removal applies to  “arriving aliens.”  An “arriving alien” is defined as:

an applicant for admission coming or attempting to come into the United States at a port‑of‑entry, or an alien seeking transit through the United States at a port‑of‑entry, or an alien interdicted in international or United States waters and brought into the United States by any means, whether or not to a designated port‑of‑entry, and regardless of the means of transport.

8 C.F.R. § 1.1(q).

[2] INA § 212(a)(6)(C)

[3] INA § 212(a)(7)

[4] INA § 235(a)(3)

[5]  INA § 235(b)(1)(B)(v).

[6] 8 C.F.R. § 235.3(b)(2)(i).

[7]  An applicant may consult with persons of his or her choice prior to IJ review of the credible fear determination.  INA § 235(b)(1)(B)(iv); 8 C.F.R. § 208.30(b).  However, immigration judges have the discretion as to whether consultants may be present at this review.  If a consultant is allowed to be present, nothing entitles him or her to make an opening statement, call and question witnesses, cross examine, object to written evidence, or make a closing argument.  Executive Office for Immigration Review, Interim Operating Policy and Procedure Memorandum 97-3: Procedures for Credible Fear and Claimed Status Reviews, at 4 (Mar. 25, 1997).

[8]  INA § 235(b)(1)(C).

[9]  INA § 235(b)(1)(B)(iii)(IV); 8 C.F.R. § 235.3(b)(2)(iii).

[10]  8 C.F.R. §§ 235.3(b)(2)(iii), (b)(4)(ii).

[11]  Parole may be granted pursuant tor 8 C.F.R. § 212.5 on a case by case basis for urgent humanitarian reasons or significant public benefit, if such persons do not provide a security risk or a risk of absconding.  This is a discretionary grant; the INS has instructed as follows:

Parole is a viable option and should be considered for aliens who meet the credible fear standard, can establish identity and community ties, and are not subject to any possible bars to asylum involving violence or misconduct; for example, the applicant is an aggravated felon or a persecutor.

Office of Field Operations, INS, Memorandum on Expedited Removal: Additional Policy Guidance (December 30, 1997).

 

[12] Office of Field Operations, INS, Memorandum: Detention Guidelines Effective October 9, 1998, at p. 3.

[13] The statistics herein are drawn from The Expedited Removal Study, Report on the First Three Years of Implementation of Expedited Removal (May 2000).

[14] In this time period 189,177 persons were removed pursuant to expedited removal.

[15] In Fiscal Year (FY) 1998 expedited removal accounted for 44.9% of all removals from the U.S., in FY 1999 it increased approximately 6%, accounting for 50.3% of the total removals for that year. 

The INA also permits the Attorney General to apply expedited removal to persons who enter the United States without inspection and cannot establish that they have been physically present in the U.S. continuously for the two-year period immediately prior to the date of the determination of inadmissibility.  The Attorney General has thus far declined to apply expedited removal to all persons falling under this category, but could decide to do so, which could significantly increase the numbers of persons subject to the process.

[16] The case was reported in The Expedited Removal Study, Report on the First Three Years of Implementation of Expedited Removal, at 71 (May 2000).

[17]  Charles Truehart, Did Gamble Pay Off for Algeria?, Int’l Herald Trib., Jan. 15, 2000.

[18]  Altogether, between 1988 and 1998, Mr. A was arrested more than 40 times by government forces.

[19]  Medical records reflect that Mr. A was “alert,” “cooperative” and “in handcuffs.”  Mr. A is recorded as denying that he had any hallucinations or delusions, or being suicidal or homicidal; Mr. A explained that his actions were in response to INS treatment at the airport.

[20] The case was reported  in The Expedited Removal Study, Report on the First Three Years of Implementation of Expedited Removal, at 78 (May 2000).

[21]  U.S. State Department, Bureau of Democracy, Human Rights, and Labor, 1999 Country Reports on Human Rights Practices (Sept. 25, 1999).  Islam is the official state religion of Egypt.  Members of the Coptic Orthodox Church make up approximately 10% of the population, or more than 6 million persons.  Id.  While the State Department report states that, “[f]or the most part, members of the non‑Muslim minority worship without harassment[,]” several examples of discrimination against Christians are cited and detailed.  The report notes that Christians who proselytize have been arrested, that Muslim women are prohibited from marrying Christian men, and that “[s]ome Christians complained that the Government is lax in protecting Christian lives and property.”  The report also mentions the continued application of an 1856 decree from the Ottoman era requiring non‑Muslims to obtain presidential permission to build or repair places of worship, and an ongoing investigation into police torture of mostly Christian detainees during a murder investigation in a largely Coptic village in 1998.  Id.

[22]  The interview was conducted in English, in which Mr. C is near fluent.

[23] The case was reported in The Expedited Removal Study, Report on the Second Year of Implementation of Expedited Removal, p. 46 (May 1999).

[24] The Transit Without Visa (TWOV) program provides for a waiver of visa requirements for people in transit through the United States.  See INA § 212(d)(4)(c); 8 C.F.R. § 214.2(c)(1).  Persons at a port of entry are eligible if (a) they are admissible under the immigration laws; (b) they have confirmed reservations to another country; and (c) they will continue their journey on the same connecting line within eight hours of their arrival or on the first available transport.

[25]  The country is known to the Study but omitted due to concerns over confidentiality.

[26] Juan Carlos Paredes-Naranjo and The Secretary of State, Appeal No. NS/45412/99, decided January 21, 2000.

[27] Juan Carolos Paredes-Narano, supra, at p.2.

[28] This case was reported  in The Expedited Removal Study, Report on the First Three Years of Implementation of Expedited Removal, at 83, n.231 (May 2000).

[29]John Moreno Gonzales, 'This Is a Disgrace'; U.S. citizen deported to Jamaica, kin charge, Newsday, June 14, 2000

[30]Gonzales, She'll Return Home, Deported woman gets an affidavit, Newsday, June 18, 2000

[31]Citizen Deported, supra

[32]John Moreno Gonzales, McKnight Comes Home, INS officials apologize for blunder, Newsday, June 19, 2000.

[33] Id.

[34] This case is reported in The Expedited Removal Study, Report on the First Year of Implementaiton of Expedited Removal, p.45 (May 1998).

[35] IIRAIRA, Appendix B, Requirement for Study and Report on Implementation of Removal Procedures (emphasis added).

[36]General Accounting Office,, Illegal Aliens: Changes in the Process of Denying Aliens Entry into the United States (1998)(“GAO Report 1")

[37]  General accounting office, illegal aliens: opportunities exist to improve the expedited removal process (gao/ggd-00-176), at 67 (Sept. 2000) (“GAO Report2”).

[38] For a critique of the General Accounting Office’s second report see, The Expedited Removal Study, Evaluation of the General Accounting Office’s Second Report on Expedited Removal (October 2000).

[39]  For example, The New York Times reported on the case of an Albanian woman asylum seeker whofled Albania after being gang-raped by masked, armed men who were looking for her husband.  Dugger, In New Deportation Process, No Time, or Room for Error, The New York Times, Sept. 20, 1997.  The woman was too traumatized and humiliated to mention the rape at her credible fear interview, which was conducted through a male Albanian interpreter.  She was found not to have a credible fear, and it was only during the immigration judge review of the adverse credible fear decision that she managed to finally mention the rape.  The immigration judge found her not believable because she had not previously mentioned the rape.  She was deported back to Albania, where she went into hiding.  Due to the efforts of advocates in the United States, the INS finally agreed to return her to the United States and permit her to apply for asylum.  Ultimately she was granted asylum.  This case is discussed in detail in Lawyers Committee for Human Rights, Is This America? The Denial of Due Process to Asylum Seekers in the United States the Lawyer Committee for Human Rights, p.55  (October 2000)

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