The Finality of a Final Removal Order

Views From The Bench

May 7, 2015

In our days at the immigration court, it was a serious and somber moment when, at the conclusion of a hearing, we rendered a decision finding an illegal alien inadmissible or removable, denying all applications for relief from removal, and issuing an order removing that alien to his or her country of origin. The issuance of the order was immediately followed by advisals to the alien of his or her appellate rights and a warning of the criminal consequences of reentering the United States after removal without proper authority.

An immigration court hearing affords an illegal alien with a full range of due process rights and the immigration judge must consider all evidence of record relating to the alien’s immigration history, criminal history, moral character,

and humanitarian concerns. The judge’s decision must be based on a finding that the alien is inadmissible or removable under at least one of the statutory grounds set forth in the Immigration and Nationality Act (INA). The decision must also address the alien’s eligibility for any form of relief from removal requested and contain a factual and legal analysis of the alien’s claims, to include, if relevant, whether relief should be granted as a matter of discretion. The immigration judge’s authority is limited by the provisions of the INA, regulations, and established case law precedent. Any digression from the rigorous principles imposed by law would result in a reversal of the immigration judge’s decision by an appellate review body—the Board of Immigration Appeals, a Circuit Court of Appeals, or even possibly the US Supreme Court.

In the days when we served on the immigration court, the rule of law prevailed, illegal aliens were held accountable for their violations of the law, and there was at least a semblance of a governed immigration enforcement policy. However, there were weaknesses in the system due to budgetary constraints, ineffective and inefficient DHS removal procedures, and a lack of political will to execute removal orders.

According to an October 14, 2014 article entitled “ICE Enforcement Collapses Further in 2014” by Jessica Vaughn of the Center for Immigration Studies and statistics provided by DHS, past and continuing lapses in enforcement policy has resulted in nearly 900,000 illegal aliens who have received final orders of removal and have exhausted all appeals but who are still in the United Sates. DHS refers to them as absconders. Nearly 175,000 of these aliens with final orders are convicted criminals and 167,000 of these criminal aliens remain at large. The number of “non-departed” aliens grew by about 25,000 cases from 2013 to 2014. It is evident that current immigration enforcement policy is increasing and promoting illegal immigration rather than solving the illegal immigration problem.

The law is clear that illegal aliens with final removal orders “shall” be removed within ninety days of the date the removal order becomes final. See INA Section 241(a)(1). This provision, as well as the mandatory detention and close monitoring required by statute of all post final order aliens, has long been ignored or finessed by DHS, but never to the extent that it is presently being violated by the department’s implementation of the Deferred Action for Childhood Arrivals (DACA) program and the proposed implementation of the Deferred Action for Parents of Americans and Lawful Permanent Residents (DAPA) program. The orders of the immigration court are essentially nullified by executive action by the President and ever changing policy memoranda by the Secretary of Homeland Security. The granting of deferred action to aliens with final removal orders is toxic to responsible enforcement of our immigration laws.

DHS has no statutory authority to ignore or rescind the final removal orders of immigration judges, the Board of Immigration Appeals, a Circuit Court of Appeal, and the US Supreme Court. Immigration judges, employed by the Executive Office of Immigration Review within the Department of Justice, retain jurisdictional authority over all immigration cases until the alien is physically removed from our country. Any rescission or reopening of a final order must be done by the immigration court or appropriate appellate body. DHS is a party to an immigration proceeding and is subject to the immigration court’s authority and must be compliant with its orders. The fact that DHS has been delegated with the ministerial duty to execute the removal order and physically remove the alien from this country does not empower DHS to formulate policies for the removal of illegal aliens which conflict with the immigration court’s directives and the statutory removal process. Yet, that is what the Secretary of Homeland Security has done. On November 20, 2014 the Secretary of Homeland Security issued a new Memorandum, Subject: Policies for the Apprehension, Detention and Removal of Undocumented Immigrants. In that memorandum, he asserts that DHS may assert “prosecutorial discretion” at any stage of an enforcement proceeding, including the right, among other discretionary enforcement decisions, to grant deferred action, parole, or a stay of removal instead of pursuing removal in a case. He cites no statutory authority or basis for these assertions.

DHS cannot unilaterally create policy and priority programs inconsistent with the INA, give them the full force and effect of law, and usurp the powers of Congress and immigration and appellate courts. It is particularly egregious for DHS to empower midlevel bureaucrats with limited knowledge or experience in administering all the other provisions of the INA to adjudicate in rubber stamp fashion deferred action applications based solely on departmental eligibility guidelines which nullify the orders of immigration judges who after a full evidentiary hearing has analyzed the alien’s case and rendered a decision in conformity with the INA and established case law precedent. Deferred action adjudicators within the department could not be expected to know if an alien has a permanent bar to adjustment of status which would not be discoverable in the partial screening of such cases. Examples would be aliens who have made a false claim to citizenship, filed a frivolous asylum application, or participated in marriage fraud.

The level of scrutiny these deferred action cases receive is evidenced by the fact that deferred action has been wrongfully granted to illegal aliens with criminal convictions and gang affiliations. The fact that an alien may qualify and be granted deferred action is not a valid indicator of whether the alien will ultimately be allowed to obtain legal status and be allowed to remain permanently. This is especially true when the criteria for deferred action eligibility are not consistent with eligibility for legal status under the INA. Immigration court and DHS enforcement resources are not preserved by deferring removal proceedings for individuals who do not currently have a legal basis for being here.

The present administration’s attempts to “fix our broken immigration system” through executive action are not only misguided, but also unprecedented in their unlawfulness, unconstitutionality, and impact in undermining our immigration enforcement system. The implementation of DACA and DAPA under the guise of “prosecutorial discretion” has not received the necessary authorization and funding by Congress. These programs have been and are attempting to be implemented without regard to the provisions of the Administrative Procedure Act nor has there been an opportunity for public comment required for any proposed regulation or legislative enactment.

In granting deferred action, DHS misapplies the law and engages in deceptive semantics by misrepresenting that grantees have lawful presence in the United States and that lawful presence equates with lawful status. DHS acknowledges that being granted deferred action does not confer legal status to an illegal alien. But, in a tribute to circular reasoning, they assert that by using their authority in granting deferred action they have bestowed upon the alien the right to be considered to be legally present when the alien is not legally present as he is not in a legal status and he has not been granted a visa or any other document which would establish that he has a legal entitlement or a legal basis to remain here. The alien has only been granted temporary protection or immunity from removal proceedings and removal itself and there is a genuine question as to whether DHS has the legal authority to establish a deferred action program and grant a deferred action “status” to an illegal alien.

This is a question of concern in the Fifth Circuit Court of Appeals case in the immigration lawsuit filed by 26 states opposing President Obama’s immigration actions. One of the judges asked the DOJ attorney at the preliminary injunction hearing if the President’s plan was distinct from the exercise of prosecutorial discretion because it confers benefits. DHS has elevated and distorted a concept which originated as merely an administrative convenience to the government which gives some cases lower enforcement priority with no rights or entitlements to the alien into an expanded illegal alien benefit program whose beneficiaries receive not only immunity from removal proceedings and removal itself but also the entitlements reserved by statute for those with legal status or those with visas who receive benefits incident to their nonimmigrant status. These benefits include employment authorization, unrestricted social security cards which evidence permanent employment authorization, tax benefits and incentives, parole, and travel documents.

The most recent expansion of entitlements flowing to illegal aliens from a grant of deferred action was announced with the creation of the Central American Minors (CAM) program. Certain illegal aliens from El Salvador, Guatemala and Honduras who have been granted deferred action for a minimum of one year may become a qualifying parent to bring children and other qualifying family members to the United States at no expense to the illegal alien family. Under current law, the opportunity to sponsor family members to come to the United States is reserved for US citizens. It is unclear which governmental agency has appropriated funds to finance this program, but undoubtedly it will be funded at taxpayer expense. The opportunities to expand immigration and other governmental benefits with relative ease to illegal aliens who can bootstrap their deferred action status to a legal status are limitless, especially when the criteria for deferred action eligibility can be changed and have already been changed at the whim of the executive branch without the burden of going through the legislative process.

It is readily apparent to anyone with knowledge of the current immigration law that the deferred action programs cannot be successfully integrated with our existing law into an effective immigration enforcement strategy. They are not compatible nor can they coexist. They are contradictory, conflicting, and unenforceable. The INA was enacted to establish the statutory framework for the removal of illegal aliens. The “temporary” executive action programs are not premised on an assumption that the current law will remain in effect, but rather that it will be replaced with an amnesty law that will provide a path to citizenship for most of the thirteen million illegal aliens who currently reside here. Congress and the courts will have to break the current impasse in immigration enforcement policy. In the interim, the resources expended in trying to prevent the removal of illegal aliens have drained resources that could and should have been used to control our borders and expedite legal immigration—this, at a time when our nation is in crisis over threats of terrorist infiltration and radicalization within our immigrant communities. Our national security and national defense interests must prevail over efforts to dismantle our immigration system and encourage more illegal immigration. The executive branch attempted to mix apples with oranges and came up with lemons.

If we were to return to our duties in the immigration court under the current state of immigration affairs, we would probably have to expand our post decision advisals to properly counsel respondents on the consequences of our removal orders. In addition to their appellate rights and the criminal consequences of unlawful reentry after removal, the removable alien would need additional information. We would probably have to advise the alien that if per chance he should be approached by an immigration officer, that officer is required by his supervisors to inquire of the alien as to his potential eligibility for deferred action and that a final removal order would not be an impediment to receiving deferred action. The alien would also be informed that a grant of deferred action would also provide temporary three-year periods of immunity from further removal proceedings and removal itself and that the periods of immunity can be renewed. It would also be appropriate to advise the respondent of his entitlement to immigration benefits upon receiving a grant of deferred action to include employment authorization, a social security card, tax benefits, parole, travel documents, and, if the alien is fortunate enough to be from one of the Central American countries, the opportunity to bring qualifying family members to the United States at government expense. It would also perhaps be appropriate to advise the alien that, if for some unforeseen reason, the alien was deemed ineligible for current deferred action status, he should keep abreast of future developments in immigration law as he might become eligible if DHS is allowed to implement DAPA or issues more policy memoranda expanding eligibility for deferred action or adds additional governmental benefits for its beneficiaries.

It appears to us that final removal orders do not have the finality we remembered them to have.

Get Connected

Sign up for our email newsletter to stay up to date with immigration reform in the United States.

Attorneys United for a Secure America (AUSA) is a non-partisan affiliation of talented attorneys dedicated to pursuing cases that serve the national interest when it comes to immigration law.

If you are interested in joining the network, visit the AUSA website.