A Mere Gesture: Expedited Due Process For Recent Immigrants

A Mere Gesture: Expedited Due Process For Recent Immigrants

By Kelly Burke

            Due process is a valued right in the American legal system, that denies the deprivation of “life, liberty, or property” at the hands of the government.[1] Over the past few months, the news media has directed Americans’ attention to an influx of immigration of women and children from countries like Honduras, Guatemala, and El Salvador.[2] The dramatic increase in immigration from these countries can be attributed to a fear of violence in the immigrants’ home countries, places affected by total gang domination or severe political unrest.[3] Meanwhile, this influx has caused the government to respond in dramatic fashion, utilizing an expedited removal process in the hopes of quickly dealing with the large population entering the country.[4] However, this expedited process crosses into a grey area of due process rights, leaving many individuals that need protection vulnerable to a hardnosed American legal system. The expedited due process needs to be altered to safe guard immigrants, allowing them more access to legal counsel and a right to a court appointed attorney.

After making entry into the United States, an immigrant is entitled to due process of law under the Fifth Amendment of the Constitution.[5] Among these due process rights afforded to immigrants is the right to an interview before removal if an individual expresses fear in returning to his or her home country.[6] The expedited removal process begins first with the determination of an immigrant’s admissibility into the United States.[7] During this preliminary questioning, an immigration officer determines if an individual intends to apply for asylum or expresses any fear of returning to their home country.[8] If there is any expression of fear, the individual is entitled to an interview with an asylum officer. [9] To stay in the country the immigrant must express “credible fear” of returning to their country.[10] However during these interviews, immigrants do not have the right to counsel appointed by the court.[11] Instead, an immigrant may only obtain counsel themselves and are only given a “reasonable opportunity” to obtain counsel.[12]

In a complaint lodged with the United States District Court of the District of Columbia, plaintiffs allege various facts that portray their due process rights on shaky grounds.[13] In the complaint the plaintiffs point out that the Artesia detention center is isolated, far away from access to legal counsel.[14] Furthermore, access to the telephone is limited to a phone call once a day that only last a few minutes.[15] People brought into the Artesia detention center are only told of their right to obtain their own counsel upon entering the detention facility, after a long day of processing and transportation.[16] Personal visits between attorneys and clients are hardly private or confidential and Immigration and Customs Enforcement (“ICE”) agents stand within earshot of what should be privileged conversations.[17] Mothers are also required to keep their children close when speaking about their fears of physical violence or sexual assaults to their attorneys because there is no one else available to watch their children during these meetings.[18] Furthermore, children are not entitled to a separate interview from their parent and therefore not allowed to give their own reasons for fearing to return to their home countries.[19]

In Mullane v. Central Hanover Bank, Justice Robert Jackson wrote, “A process which is a mere gesture is not due process.”[20] The expedited due process afforded to immigrants is a mere gesture in the guise of affording immigrants their due process rights. These immigrants now subject to the confusing system of United States law should be entitled to greater protection against deportation. One of the greatest protections that should be afforded to these individuals is the right to a court appointed attorney. While this option may cause many American taxpayers to cringe, detention and removal are serious impingements on an individual’s liberty. Being forced to return to a country that could present certain death to an individual deserves to be given more weight than it is currently treated with in the American legal system. In these immigration cases, it is undeniably harder for foreign and non-English speaking to understand their procedural rights and how to respond in interviews. These individuals that usually only have the barest understanding of the American legal system and are the most vulnerable to misunderstanding are require attorneys the most.

However, in the case that a court attorney cannot be appointed, then the court must ensure that individuals in detention centers have adequate information and access to Pro Bono attorneys. Individuals in the detention facility need to meet with their attorneys for more than a few minutes and decide adequate legal courses of action. Their conversation should truly be in private and subject to privilege between an attorney and client. The most basic due process rights need to be afforded to these individuals to give them an adequate opportunity to understand the questioning process and what is expected of them through the process.

Immigrants in this expedited system are facing the horrors of violence in returning to their own countries without adequate safeguards to protect those with legitimate fears from being returned to extremely dangerous environments. While court appointed attorneys may cost the American taxpayers a little more, immigration due process rights should change to include the right to a court appointed lawyer before removal is decided. At the very least, individuals in the detention centers deserve to have adequate opportunities and time to meet with their attorneys in private settings.

[1] U.S. Const. amend. V.

[2] Leigh Caldwell, Influx of Immigrant Children Expected to Last Through the Summer, Cable News Network (June 10, 2014), http://www.cnn.com/2014/06/10/politics/children-immigrant-crossings.

[3] Id.

[4] Complaint for Injunctive and Declaratory Relief at 11, M.S.P.C. v. Sec. of the Dep’t. of Homeland Def. , No. 1:14-cv-01437 (D.C. Cir. Aug. 22, 2014).

[5] 8 C.F.R. § 1240.3.

[6] 8 C.F.R. § 1225

[7] Id.

[8] Id.

[9] Id.

[10] Id.

[11] See Id.

[12] Id.

[13]See generally Complaint for Injunctive and Declaratory Relief, M.S.P.C., No. 1:14-cv-01437.

[14] Id. at 3.

[15] Id. at 97.

[16] Id. at 105.

[17] Id. at 121.

[18] Id. at 125.

[19] Id. at 149.

[20] 339 U.S. 306, 315 (1950)


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