Lead Opinion
Dissent by Judge PREGERSON
OPINION
Rufino Peralta-Sanchez (Peralta) was convicted of illegal entry in violation of 8 U.S.C. § 1325 and illegal reentry in violation of 8 U.S.C. § 1326. The predicate for his illegal reentry count was his expedited removal in 2012. Peralta argues that his expedited removal was fundamentally unfair and thus cannot serve as the basis of the illegal reentry count, because he was neither entitled to hire counsel nor advised of his right to apply for withdrawal of his application for admission. We find that Peralta had no Fifth Amendment due process right to hire counsel
I. FACTS AND PROCEEDINGS
A. The Facts
On March 7, 2014, at approximately 11:20 p.m., video surveillance along the U.S.-Mexico border spotted two individuals
Peralta first entered the United States in 1979 at the age of twenty. He obtained legal status in 1986 and became a lawful permanent resident (LPR) in December 1990. Between 1990 and 2000, he maintained a relationship with a woman with whom he has three U.S. citizen children. Peralta’s criminal history, including a history of immigration offenses, is extensive. In 1982, Peralta was arrested in Bakersfield, California, under the name Gabriel Sanchez for arson, although these charges were eventually dismissed. He was arrested in 1983 under the same name, again for arson. In 1990, he was arrested in Fresno under the name Rufino Peralta-Sanchez for giving a false identification to a peace officer. Between 1990 and 1996, Peralta collected a string of driving under the influence (DUI) convictions: five misdemeanor convictions and a 1996 felony DUI conviction for which he was sentenced to 16 months in prison. As a result of the 1996 felony DUI conviction, the then-immigration and Naturalization Service (INS) issued Peralta a Notice to Appear, charging him as removable for having been convicted of an aggravated felony “crime of violence.” Peralta was ordered removed on June 7,1999.
Peralta returned regularly to the United States. In January 2000, he was again convicted of felony DUI, as well as possession of cocaine, for which he was sentenced to 28 months in prison. Following this conviction, Peralta was convicted of misdemeanor illegal reentry. After serving his sentence, Peralta’s 1999 removal order was reinstated in December 2001, and he was again removed from the United States. Undeterred, Peralta entered the United States again and was convicted of felony reentry in October 2002, for which he received 30 months in prison. After serving this sentence, his 1999 order of removal was again reinstated in July 2004, and he was again removed from the United States. After another illegal reentry, the 1999 deportation order was again reinstated on May 23, 2012, and Peralta was again removed. Three days later, Peralta was again apprehended by Border Patrol agents one mile north of the border, hiding in the brush with two others.
B. The Proceedings
As a result of his March 2014 arrest, Peralta was charged with improper entry into the United States under 8 U.S.C. § 1325 (count one) and with being a removed alien found in the United States in violation of 8 U.S.C. § 1326 (count two). Peralta moved to dismiss count two, arguing that his underlying 1999 and 2012 removal orders violated due process. Peralta argued that his original 1999 removal was invalid because felony DUI is no longer considered a crime of violence.
The district court initially rejected Per-alta’s argument regarding his 1999 removal and denied the motion to dismiss count two of the indictment. It found that Peral-ta had suffered no due process violation, and that if he had, he suffered no prejudice because he did not qualify for any discretionary relief. Peralta was convicted on both counts of the indictment following a bench trial. He then filed a motion to reconsider the dismissal of count two. The district court denied the motion. However, in light of our then-recent decision in United States v. Aguilera-Rios,
On appeal, Peralta challenges the validity of both the 1999 and 2012 removal orders. We examine' only the 2012 expedited removal, as this was the removal order on which the district court ultimately relied in sustaining Peralta’s § 1326 conviction. We have jurisdiction under 18 U.S.C. § 3231.
A. Expedited Removal and Illegal Reentry
1. Expedited removal
Expedited removal proceedings under 8 U.S.C. § 1225 are limited to aliens arriving in the United States, “whether or not at a designated port of arrival”; and aliens “who ha[ve] not been admitted or paroled into the United States” and cannot show that they have been continuously present in the United States for two years “immediately prior to the date of determination of inadmissibility.” 8 U.S.C. § 1225(a)(1), (b)(l)(A)(iii)(II); 8 C.F.R. § 235.3(b)(1)(h).
If an immigration officer, after conducting an inspection, determines that such an alien does not possess valid entry documents, has presented fraudulent documents, or has made a false claim of U.S. citizenship, “the officer shall order the alien removed from the United States without further hearing or review unless the alien indicates either an intention to apply for asylum ... or a fear of persecution.” 8 U.S.C. § 1225(b)(l)(A)(i); see also id. § 1182(a)(6)(C), (a)(7). When making a finding of inadmissibility, the officer must create a record of the facts and statements made by the alien, read the statement containing these facts to the alien, explain the charges against the alien, and give the alien a chance to respond to the charges in a sworn statement. 8 C.F.R. § 235.3(b)(2)©. In short, the alien is provided with notice of the charges against him or her and given an opportunity to respond. In contrast to the statutes governing formal removal proceedings under § 1229a or the removal of aggravated felons under § 1228, the statutes and regulations governing expedited removal proceedings do not provide that the alien may be represented by counsel.
Except in a limited category of cases (not applicable here), an alien who is determined to be inadmissible via § 1225 proceedings is not entitled to administrative or judicial appeal. The Attorney General, however, has discretion to grant withdrawal of the alien’s application for admission. 8 U.S.C. § 1225(a)(4); see also id. § 1225(b)(1)(C) (noting that an alien who claims to be an LPR, a refugee, or an asylee may be entitled to appeal). If the
2. Illegal reentry
Section 1326 punishes an alien who has been “denied admission, excluded, deported, or removed” and later “enters, attempts to enter, or is at any time found in, the United States” without permission. 8 U.S.G. § 1326(a)(1), (2); see United States v. Barajas-Alvarado,
Where a motion to dismiss a § 1326 charge is based on an alleged due process violation in the underlying removal proceeding, we review the denial of the motion to dismiss de novo. United States v. Camacho-Lopez,
B. Rights Under the Due Process Clause
Aliens who “enter” the United States are entitled to some measure of due process under the Due Process Clauses of the Fifth and Fourteenth Amendments before the government acts to deprive them of life, liberty, or property. See Zadvydas v. Davis,
We have held that an alien facing deportation faces the loss of a liberty interest. An alien, like Peralta, has a right to removal proceedings that conform to the requirements of due process. See Raya-Vaca,
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The question we must ask in this case is: To what process — statutory and constitutional — was Peralta entitled?
III. PERALTA’S CLAIMS
Due process requires, at a minimum, notice and an opportunity to respond. Cleveland Bd. of Educ. v. Loudermill,
A. Right to Obtain Counsel
“The right to counsel in immigration proceedings is rooted in the Due Process Clause.... ” Biwot v. Gonzales,
There are two questions to be answered on this issue. The first is whether Peralta had a statutory right to counsel at no
1. Statutory right to counsel
Congress has provided that aliens may be represented by counsel in certain proceedings. For example, 8 U.S.C. § 1362 provides that “[i]n any removal proceedings before an immigration judge ... the person concerned shall have the privilege of being represented (at no expense to the Government) by such counsel, authorized to practice in such proceedings, as he shall choose.” Similarly, § 1228, which governs expedited removal of aggravated felons, and § 1229a, which governs formal removal proceedings, provide that an alien has the right to representation at no expense to the government. See 8 U.S.C. §§ 1228(b)(4)(B), 1229a(b)(4)(A). None of these provisions applies to Peral-ta. “[W]here Congress includes particular language in one section of a statute but omits it in another section of the same Act, it is generally presumed that Congress acts intentionally and purposely in the disparate inclusion or exclusion.” Russello v. United States,
Peralta argues that he has a general right to be represented by counsel of his choice under the Administrative Procedure ■ Act (APA). Section 555 of the APA provides that “[a] person compelled to appear in person before an agency or representative thereof is entitled to be accompanied, represented, and advised by counsel or, if permitted by the agency, by other qualified representative” and that “[a] party is entitled to appear in person or by or with counsel or other qualified representative in an agency proceeding.” 5 U.S.C. § 555(b). Peralta has not referred us to any law or case indicating that this provision extends the right to counsel to immigration proceedings.
This failure is not surprising because the Supreme Court has long held that deportation proceedings are not governed by the APA. See Ardestani v. INS,
Marcello does not hold simply that deportation proceedings are subject to the APA except for specific deviations sanctioned by the INA. Rather, Marcello rests in large part on the statute’s prescription that the INA “shall be the sole and exclusive procedure for determining the deportability of an alien under this section.”
Ardestani,
Peralta points out that the Supreme Court has applied the APA to the BIA. See, e.g., Judulang v. Holder,
We conclude that these proceedings are governed by the INA, and in this case, 8 U.S.C. § 1225 specifically. Peralta has no statutory right to obtain counsel in an expedited proceeding.
2. Due process right to counsel
Because he has no statutory right to obtain counsel in an expedited proceeding, Peralta asks us to find that he has a constitutional right to do so. In this context, Peralta is asking us to find the INA unconstitutional because § 1225 does not provide an alien a right to counsel and, as we noted in the prior section in this context, we must presume the omission is deliberate. Thus, Peralta has a due process right to obtain counsel only if we are persuaded that Congress was wrong to omit it from the adjudicative scheme it created. “Judging the constitutionality of an Act of Congress is properly considered ‘the gravest and most delicate duty that [a court] is called upon to perform....’” Walters v. Nat’l Ass’n of Radiation Survivors,
The constitutional sufficiency of the procedures Congress provided in expedited removal proceedings under the INA is determined by application of the balancing test articulated in Mathews v. Eldridge,
a. Nature of the private interest at stake
The Supreme Court has recognized that deportation “visits a great hardship on the individual and deprives him of the right to stay and live and work in this land of freedom.” Bridges v. Wixon,
Unlike other types of removal proceedings, proceedings under § 1225 apply only to “arriving aliens” and aliens found in the United States who have no valid entry documents and cannot establish that they have been here for at least fourteen days. See 8 C.F.R. §§ 1.2, 235.3(b)(1);
• We conclude that an alien subject to expedited removal proceedings under § 1225 has only a limited interest at stake, and a much less significant interest than those subject to removal proceedings under §§ 1228 and 1229a.
b. Risk of erroneous deprivation
We likewise conclude that risk of error in the context of § 1225 removal proceedings is low, and that enabling an alien to retain counsel would not improve the accuracy of the proceedings. We recognize that expedited removal proceedings permit no judicial or administrative review, which we assume would decrease any risk of error. In this case, however, the class of aliens to which expedited removal applies is fairly narrow, and the analysis required to determine whether an alien may be subject to expedited removal proceedings is straightforward: the immigration officer need determine only whether an alien has valid documents to enter or remain in the United States. See 8 U.S.C. § 1225(b)(1). This is a relatively simple exercise. We note as well that aliens who would otherwise be subject to expedited removal, but who seek asylum or who claim a fear of persecution, or claim to have LPR status, are entitled to further process under § 1225 before removal proceedings can take place. Id. § 1225(b)(l)(A)(i); 8 C.F.R. § 1235.3(b)(4), (5). Peralta points to no evidence suggesting that aliens are being wrongfully removed via expedited removal proceedings because of a lack of additional process, including a right to counsel.
Peralta argues, however, that counsel could help an alien subject to expedited removal proceedings obtain withdrawal relief. See 8 U.S.C. § 1225(a)(4). Withdrawal relief, though, implies that the alien unlawfully entered or attempted to enter the United States, meaning that the alien was properly subject to expedited removal proceedings in the first place. In other words, withdrawal relief simply provides an alternative avenue of removal. See id. This argument does not prove that counsel would be of assistance in preventing an alien from being wrongfully placed in expedited removal proceedings or wrongfully removed as a result.
Peralta also argues that counsel could provide assistance in cases like his, where a subsequent change in the law calls into question a previous order of removal. In 1999, Peralta was ordered removed because he had a felony DUI and, under BIA decisions, was considered an aggravated felon, a status that we and the Supreme Court later reversed. Leocal v. Ashcroft,
While aliens have a right to fair procedures, they have no constitutional right to force the government to re-adjudicate a final removal order by unlawfully reentering the country.... If [an alien] has a legitimate basis for challenging his prior removal order, he will be able to pursue it after he leaves the country, just like every other alien in his position.
Morales-Izquierdo v. Gonzales,
We conclude that the risk of wrongful removal under § 1225 is quite low, and that providing additional safeguards in the form of counsel would not significantly improve the existing process, particularly when weighed against the cost, which we discuss below.
c. Government’s interest
Peralta argues that, “[g]iven that the Government is not being asked to foot the bill, its vehement opposition to a right to counsel in expedited removal is baffling, as well as unreasonable.” We think Peralta underestimates the burden a right to counsel would place on the government in this context. Although the government would not have to pay an alien’s attorney’s fees, Peralta has not taken into account the costs to the government that would result from the inevitable delay if an alien is entitled to seek counsel. The government would have to detain the alien perhaps for days or weeks longer, while the alien is given “reasonable” time to seek representation, as we have required in cases in which there is a statutory right to counsel in removal proceedings, and which we would presumably require here. See Biwot,
The expedited removal process is intended to allow the government to exclude quickly those aliens found at or near the border who are clearly inadmissible— those who have no legal entry documents and who have established only a limited presence here. The introduction of lawyers in the expedited removal process is likely to turn the proceeding into something more akin to a trial — and a trial not before an IJ, but before an immigration officer unqualified to weigh the competing demands of opposing counsel in what will become an adversary proceeding. This will prolong the decisionmaking process, exponentially increasing the cost to the government as the government must detain the alien, pay for the government’s own representation, pay for the creation of a longer record, and pay for the increased time the immigration officer must spend adjudicating such cases, distracting the officer from any other duties. Such a process, as Judge Friendly recognized in a slightly different context, is “not formulated for a situation in which many thousands of hearings must be provided each month.” Id. at 1290.
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In light of the limited benefit a right to counsel is likely to provide in this context, and in light of the significant cost the government would likely incur, we refuse to sanction this kind of self-help, and the wholesale circumvention of our immigration laws, by finding that aliens who illegally enter the United States and are subject to expedited removal proceedings under § 1225 are constitutionally entitled to counsel. “Nothing in the Constitution requires such a perverse result.” Morales-Izquierdo,
In sum, Peralta suffered no due process violation when he was denied counsel in his expedited removal hearing. His interests in securing counsel are limited, the government’s interest in having expedited proceedings is high, and we find there is relatively little risk of error in such proceedings.
B. Right to Be Informed of Withdrawal
Peralta also argues that he was denied due process because he was not informed of the possibility of withdrawal relief under § 1225(a)(4). That section states: “An alien applying for admission may, in the discretion of the Attorney General and at any time, be permitted to withdraw his application for admission and depart immediately from the United States.” 8 U.S.C. § 1225(a)(4). “In the context of removal proceedings for aliens who have already been admitted into the United States, we have held that due process requires the immigration judge to inform such aliens of potentially available avenues of relief.” Sanchez-Aguilar,
In order to establish that he was prejudiced by the government’s failure to notify him of withdrawal relief, Peralta must “make a ‘plausible’ showing that the facts presented would cause the Attorney General to exercise discretion in his favor.” Barajas-Alvarado,
As to the first factor, the seriousness of the immigration violation, Peralta argues that his violation was not “serious” because he did not present fraudulent documents to attempt to gain entry to the United States. The use of fraudulent documents, however, appears to operate as an automatic disqualifier; this does not mean that the non-use of fraudulent documents renders repeated immigration violations non-serious. See Inspector’s Field Manual § 17.2(a); see also United States v. Garcia-Gonzalez,
We find as well that the second and fourth factors, related to inadmissibility, similarly weigh against Peralta. He argues that his only prior finding of inadmissibility was the 1999 removal order, based on case law at the time that has now changed, and that his U.S. citizen children could have sought adjustment of status on his behalf in 2012. First, we note that his 1999 removal order was reinstated three times, which means that he had four findings of inadmissibility. We have stated before
Second, we note that Peralta could not have sought adjustment of status, and was therefore unlikely to overcome the previous findings of inadmissibility.
As to the fifth factor, age and poor health, Peralta was fifty-three years old at the time of his expedited removal in 2012. Despite now claiming that he “suffered many years of back-breaking labor in the fields,” and that this somehow tilts the fifth factor in his favor, Peralta told the Border Patrol agent who took him into custody in 2012 that he was, in fact, in good health. He also told the agent that'he was planning to travel to Los Angeles to seek work. Indeed, Peralta was certainly well enough to walk through the desert to enter the United States, and to hide in the brush to evade Border Patrol. In short, there is nothing in the record to suggest that Peralta was in ill health at the time of his expedited removal. This factor weighs against him as well.
Finally, we address factor six, humanitarian considerations. On this point, Peral-ta principally emphasizes his long residence in the United States prior to his 1999 removal and the fact that he has three U.S. citizen children. However, in Barajas-Alvarado, we concluded that an alien’s “ties to the United States” are “not listed as considerations in the Inspector’s Field Manual and therefore carry little weight.”
Because the majority of the Inspector’s Field Manual factors weigh against withdrawal relief, Peralta cannot show that it was “plausible” that he would have been granted this relief. Accordingly, he cannot show that he was prejudiced by the immigration officer’s failure to notify him of the possibility of withdrawal.
IV. CONCLUSION
In sum, we conclude that Peralta’s 2012 expedited removal was not fundamentally unfair. Peralta had no Fifth Amendment due process right to counsel in the expedited removal proceeding under § 1225, and he cannot demonstrate prejudice resulting from the failure to notify him of the right to withdraw his application for admission. As a result, his 2012 expedited removal could be used as a predicate for his § 1326 conviction. We therefore affirm the district court’s denial of Peralta’s motion to dismiss the indictment and his subsequent judgment and sentence, as well as the revocation of his supervised release.
AFFIRMED.
Notes
. When we refer to the "right to counsel” in this case, we mean the right of an alien to hire counsel at no expense to the government. We do not refer to a right to government-appointed counsel.
. This incident is not to be confused with the March 2014 incident, which is the subject of this case and which follows a very similar pattern.
. In sum, from what we can tell from the record, Peralta has at least eight felony arrests (1982, 1983, 1990, 1996, 2000, 2002 (2), and 2014) and five misdemeanor DUI convictions, and he has been removed from the United States at least four times (1999, 2001, 2004, and 2012).
. At the time, the Board of Immigration Appeals (BIA) considered felony DUI a "crime of violence” requiring an alien’s removal under 8 U.S.C. § 1101(a)(43)(F). Felony DUI is no longer considered an aggravated felony crime of violence. See Leocal v. Ashcroft,
. Expedited removal proceedings under § 1225 are not to be confused with expedited removal proceedings under § 1228, which deals with the removal of aggravated felons.
. Section 1225 provides that the discretion rests with the Attorney General. The Homeland Security Act of 2002 designated the Secretary of Homeland Security in place of the Attorney General. 6 U.S.C. §§ 251(2), 252(a)(3), 271(b), 552(d), 557; see Clark v. Martinez,
. We note first that, because § 1225(b) provides for no administrative or judicial review of an expedited removal order, Peralta had no administrative remedies to exhaust and has been deprived of judicial review. The government concedes that Peralta therefore satisfies the first two requirements for challenging his § 1326 conviction. See Raya-Vaca,
. In contrast, aliens who attempt to enter at an official port-of-entry and are detained by immigration officials have not “entered” the United States, even if they may be physically present in U.S. territory, because they have not crossed the border "free from official restraint.” This is sometimes referred to as the "entry fiction.” United States v. Argueta-Rosales,
. In Barajas-Alvarado, we concluded that Ba-rajas-Alvarado’s "claim that he was denied his right to counsel is meritless on its face.”
. The dissent claims that the fact that Peral-ta had moved to the United States in 1979 shows that expedited removal proceedings
. The dissent, nonetheless, went beyond the record and found a study indicating that protection for those who seek asylum or claim fear of persecution are sometimes erroneously denied. Dissent at 1144-45, 1145 n.16. These risks were not raised by any party below, were not briefed, and were not mentioned at oral argument. We are unwilling to credit a twelve-year-old study without the benefits of our adversarial system to challenge its validity, methodology, or significance to the case at hand.
The dissent also raises the possibility that some individuals may be incompetent due to mental illness or disability. Dissent at 1145. This point too was not raised below, was not briefed, and was not mentioned at oral argument. Even taking these highly particularized risks into account, and ignoring their procedural and substantive flaws, would not tip the Mathews factors in Peralta’s favor. See Walters,
. Peralta’s 1999 removal order followed issuance of a notice to appear and a hearing before an immigration judge. The IJ advised Peralta that he could secure counsel at his own expense and continued the case so Peral-ta could do so. Peralta did not obtain counsel.
. We note that Peralta has given no explanation as to why, in the thirteen years between his initial 1999 removal and his 2012 expedited removal, he never sought the assistance of counsel, which he now so earnestly claims could have made a difference in his immigration status. Instead, Peralta chose to reenter the United States illegally, not once, but six different times.
. The dissent, in a one-paragraph dismissal of the government's interest, claims that the cost of providing an attorney "does not appear to be prohibitive” because the government allows representation in other types of expedited removal proceedings. Dissent at 1146 (citing 8 U.S.C. § 1228(b)(4)(B)). But the government’s allowance of representation in dissimilar proceedings does not mean that the costs of representation in those proceedings, let alone in the proceedings before us, are not significant. It just means that the government has chosen to bear those costs for people in that situation. We have no basis for imposing real costs on the government simply because Congress has made the choice to assume such costs in other situations.
. Despite Peralta’s claim that he could have applied for adjustment of status based on his relationship to his adult U.S. citizen children, we note that no application for adjustment of status was pending on Peralta’s behalf at the time, nor, to our, knowledge, has one ever been filed on Peralta's behalf by any qualifying relative since his original removal in 1999.
Dissenting Opinion
dissenting:
I dissent. I would hold that there is a due process right to counsel during expedited removal proceedings.
I. Expedited Removal
Expedited removal — the process in which a noncitizen is removed from the country without a formal removal proceeding — was established in 1996 as part of the Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA).
Hundreds of thousands of people are expeditiously removed from this country each year. In 2013, the Department of Homeland Security removed approximately 438,000 noncitizens from the U.S.
It is apparent that the expedited removal system is flawed in many ways. The chance to consult with a lawyer, which is the subject of this appeal, is just one way to make the process fair. I would find that such a due process right is mandated under the Constitution.
II. The Mathews v. Eldridge test weighs in favor of a right to counsel.
The three-part test from Mathews is used to determine whether an individual has received due process under the Constitution.
First, the private interest that will be affected by the official action; second, the risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards; and finally, the Government’s interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail.8
The majority concludes that the Matthews test weighs against establishing a right to counsel in expedited removal proceedings because Peralta-Sanchez’s interest in securing counsel is limited, the government’s interest in having expedited proceedings is high, and there is relatively little risk of error in such proceedings. Maj. Op. 1139.
I disagree. On balance, the Mathews test weighs in favor of finding a right to counsel in expedited removal proceedings.
a. Private interest at stake
The private interest at stake here is significant. An individual subject to expedited removal, like Peralta-Sanchez, “stands to lose the right to stay and live and work in this land of freedom [and] ... the right to rejoin h[is] immediate family, a right that ranks high among the interests of the individual.”
The majority believes that the interest at stake is more limited because the expedited removal statute targets noncitizens who have no residence or only a limited residence in this country. Maj. Op. 1135-36. Though the statute may have been designed to target individuals with limited or no residence in this country, this is not reality for many individuals subject to expedited removal.
The majority argues that allowing individuals to hire counsel in expedited removal proceedings just because they were apprehended after crossing into the U.S. (as opposed to before entering the U.S.) would create “perverse incentives ... to further circumvent our immigration laws by avoiding designated ports-of-entry.” Maj. Op. 1136. But the perverse incentive argument overlooks the fact that most people come to our country seeking to better their lives and the lives of their families — that is the incentive to reach U.S. soil, not the ability to hire a lawyer in a removal proceeding.
Providing greater procedural safeguards in expedited removal proceedings would not create any additional incentives to enter the country than those that already exist.
b. Erroneous deprivation
Prior to IIRIRA, any individual who sought entry into the U.S. without proper documentation or who violated the terms of his entry visa could present his case to an immigration judge. This allowed for plenary proceedings and the opportunity to be represented by a lawyer. The IIRI-RA stripped away almost all of the procedural safeguards then in place.
Now, the deportation process can begin and end with a CBP officer untrained in the law. Once a CBP officer determines that an individual is inadmissible, the officer will order immediate removal unless the individual expresses a fear of persecution, an intent to apply for asylum, or claims a legal right to reside in the U.S. based on citizenship, permanent residence, asylum, or refugee status.
Those who are at an obviously higher risk of erroneous deprivation are individuals who claim asylum or who are mentally incompetent.
The study also uncovered alarming instances of CBP officers failing to provide even the minimal safeguards available in expedited removals: (1) CBP officers did not read the obligatory paragraph informing noncitizens that U.S. law provides protection to certain persons who face persecution; (2) CBP officers did not specifically inquire about the noncitizen’s fear of returning to his or her country; (3) CBP officers refused interpreters; (4) CBP officers used aggressive or hostile interview techniques, including sarcasm, ridicule, verbal threats, and accusations; and (5) CBP officers told noncitizens to sign documents with little or no explanation of what they were signing or what the implications might be, and in most cases these documents were written in a language the non-citizens were not able to read.
The risk, of erroneous removal is also substantial for individuals who are incompetent due to mental illness or disability. In traditional removal proceedings conducted before an immigration judge, one of the protections afforded noncitizens who exhibit indicia of mental incompetence is the right to counsel.
The risk of erroneous deprivation is especially great in this context given that a noncitizen with mental illness or competency issues may not comprehend the nature of the proceedings and may be unable to communicate effectively or answer basic questions about his identity and circumstances. Such an individual may have enormous difficulty in effectively expressing a fear of persecution or rebutting the charge of inadmissibility.
Beyond assessing the risk of erroneous deprivation, the Mathews test also requires us to assess the “probable value, if any, of additional or substitute procedural safeguards.”
c. Government interest
Certainly, allowing lawyers to represent noncitizens in expedited removal proceedings would impose an efficiency cost on the government. However, the government already allows for legal representation in another type of expedited removal under 8 U.S.C. § 1228(b)(4)(B). Thus, the efficiency cost of allowing counsel to participate in expedited removal proceedings does not appear to be prohibitive. More importantly, cost considerations should not have a significant role in determining whether legal counsel should be allowed when lives and fundamental interests are at stake. It is hard to believe that, today, we are willing to pay such a high human price for administrative efficiency.
III. Conclusion
The expedited removal system is flawed; it does not account for the realities of immigration and the strong ties to this country held by many noncitizens. The system is also cruel; it gambles with the lives of hundreds of thousands of people per year by offering few procedural safeguards. We can, and should, do better.
. In this case, the right to counsel means the right to hire a lawyer at no cost to the government.
. Expedited removal under 8 U.S.C. § 1225 (not to be confused with expedited removal under 8 U.S.C. § 1228, which applies to persons convicted of aggravated felonies) applies to two types of noncitizens: (1) arriving non-citizens, except for citizens of Cuba arriving by plane; and (2) noncitizens who arrive in, attempt to enter, or have entered the U.S. without having been admitted or paroled at a port-of-entry and who have not established to the satisfaction of a Customs and Border Protection officer that they have been physically present in the U.S. continuously for the two-year period immediately prior to the date of determination of inadmissibility. 8 U.S.C. § 1225(a)(1), (b) (1) (A)(iii) (II); 8 C.F.R. § 235.3(b)(l)(ii).
. See, e.g., ACLU Foundation, American Exile: Rapid Deportations That Bypass the Courtroom (Dec. 2014), available at https://www. aclu.org/files/assets/120214-expedited removaL0.pdf
. John F. Simanski, Dep’t of Homeland Sec. Office of Immigration Statistics, Annual Report: Immigration Enforcement Actions: 2013 1 (Sept. 2014), available at http://www.dhs. gov/sites/default/files/publications/ois_ enforcemen1_ar_2013 .pdf.
. Id.
. Id.
. Noncitizens found within the U.S. are entitled to due process under the Fifth Amendment. United States v. Raya-Vaca,
. Mathews v. Eldridge,
. Landon v. Plasencia,
. 8U.S.C. § 1182(a)(9)(A)(i).
. Designating Aliens for Expedited Removal, 69 Fed. Reg. 48877-01, 48880 (Aug. 11, 2004) (subjecting to expedited removal noncitizens who are found within 100 miles of the border and who cannot establish that they have been
. 8 U.S.C. § 1225(b)(1)(A)(ii), (b)(1)(C); 8 C.F.R. § 235.3(b)(5).
. 8 U.S.C. § 1225(b)(1); 8 C.F.R. § 235.3.
. See Emily Puhl, Prosecuting the Persecuted: How Operation Streamline and Expedited Removal Violate Article 31 of the Convention on the Status of Refugees and 1967 Protocol, 25 Berkeley La Raza L.J. 87 (2015); Aimee L. Mayer-Salins, Fast-Track to Injustice: Rapidly Deporting the Mentally III, 14 Cardozo Pub. L. Pol’y & Ethics J. 545 (2016).
. 8 C.F.R. § 235.3(b)(4); 8 C.F.R. § 208.30.
. Allen Keller, M.D. et al., Evaluation of Credible Fear Referral in Expedited Removal at Ports of Entry in the United States, Report on Asylum Seekers in Expedited Removal: Volume II: Expert Reports 1, 20 (Feb. 2005), available at https://www.uscirf.gov/sites/ default/files/resources/stories/pdf/asylum_ seekers/evalCredibleFear.pdf.
. Id. at 28-31.
. See Matter of M-A-M-, 25 I. & N. Dec. 474 (BIA 2011); Franco-Gonzalez v. Holder, No. CV 10-02211,
. Mayer-Salins, supra n.14, at 558.
. See, e.g., Renata Robertson, The Right to Court-Appointed Counsel in Removal Proceedings: An End to Wrongful Detention and Deportation of U.S. Citizens, 15 Scholar: St. Mary’s L. Rev. & Soc. Just. 567, 582 (2013) (discussing the case of Sharon McKnight, a mentally disabled U.S. citizen, who was wrongly removed to Jamaica).
.
. See United States v. Otherson,