Just before Christmas, Guillermo Monreal’s arrest for shoplifting landed him in the McHenry County Detention Center. By the time his wife managed to find a lawyer, Monreal had called her with bad news. “They are deporting me tonight,” he told her. His voice was hesitant—even distant.
Linda Hernandez didn’t understand. Her husband had been in the jail for only a couple of days. “He didn’t even go in front of the judge,” she recalled. “I didn’t know what was going on.”
A few days later, immigration officials told Royal Berg, Monreal’s lawyer, that his client had been deported under a “reinstatement” of a prior removal order from 2000, when Monreal crossed the border illegally from his native Mexico, where he had been visiting his ailing father.
Monreal hadn’t realized the significance of his 2000 deportation. After all, he had made another attempt to cross later that year, succeeded and returned to Chicago, where he had lived since the ’80s. He reunited with Hernandez and went on to raise two children, now 11 and 7, on the city’s South Side. The couple got married in 2011.
But Monreal’s past caught up with him after his December arrest.
Thousands of others have faced a similar predicament. From October 2007 through September 2011, more than 460,000 deportations were carried out under reinstatements across the country, shows an analysis of U.S. Department of Homeland Security records by The Chicago Reporter. Like Monreal, these immigrants were deported without the opportunity to appear before an immigration judge.
More than 8,300 of these reinstatements came in the Chicago “area of responsibility,” overseen by U.S. Immigration and Customs Enforcement, an agency of homeland security.
In recent years, Immigration and Customs Enforcement has been deporting more and more immigrants by bypassing formal court proceedings, the Reporter found. Reinstatement is one of several legal strategies devised for this effort. Others are known as “administrative orders,” “expedited removals,” “stipulated order of removals,” “visa waiver removals” and “voluntary returns.” All of these procedures enable speedy deportations without a judicial hearing.
The Chicago area of responsibility is an immigration enforcement zone that encompasses Illinois, Indiana, Kansas, Kentucky, Missouri and Wisconsin. More than 25,000 immigrants in that area received these fast-track deportations between fiscal years 2008 and 2011, the latest years for which the data are available. This number accounts for about 57 percent of all deportations carried out during that period, the Reporter’s analysis shows.
The numbers have been creeping up. In fiscal year 2011, nearly 60 percent—or 7,065—of all deportations from the Chicago area of responsibility bypassed judicial hearings, an increase of about 7 percentage points since fiscal year 2008.
Advocates believe many immigrants who were subjected to these fast-track procedures could have qualified for other forms of relief that would have allowed them to remain in the United States. In such cases, they said, extending them “due process” in a court is crucial.
“The reason why we have due process is to have a system by which individuals can be identified if wrongly placed in removal proceedings,” said Mark Fleming, litigation coordinator for the National Immigrant Justice Center, a Chicago-based nonprofit that provides free or affordable legal services to immigrants.
The current system lacks checks and balances, said Linus Chan, an adjunct law professor at DePaul University and clinical instructor at the school’s Asylum and Immigration Law Clinic. Under fast-track deportations, Chan noted, immigration officials enjoy an all-encompassing power—to detain, adjudicate and deport. “A way to think about it is very much like a police officer being able to arrest you, prosecute you and judge you all in the same body,” he said.
Ricardo Wong, the director of enforcement and removal operations at the Immigration and Customs Enforcement’s Chicago field office, denied allegations that his agency is refusing to give immigrants a chance to appear before a judge. But he declined to discuss specific cases due to privacy concerns.
Wong acknowledged that deportations administered outside the immigration court system are faster and less costly but added that those factors do not play a role in deportation decisions. His agency carefully reviews each decision to determine the best course of action—whether deporting people inside or outside the immigration court system, he said.
“Everything is in place, and it works very well,” he said. “We take each deportation very, very seriously.”
Ira Mehlman, spokesman for the Federation for American Immigration Reform, a Washington, D.C.-based group that supports tighter immigration controls, said that not all deportation proceedings deserve a court hearing. Some immigrants use the immigration court system to file “frivolous claims,” he said.
“There are people who are delaying their removal for years and years,” he said. “There needs to be a more streamlined process in order to ensure that it can work effectively.”
But fast-track procedures skirt the concept of due process, which should be extended to noncitizens living in the country, even in deportation proceedings, said Matthew Kuenning, an adjunct professor of immigration law at the University of Illinois at Urbana-Champaign.
“There is a long line of U.S. Supreme Court cases dealing with the question of due process,” said Kuenning, who is also an immigration attorney. “The conclusion is that due process applies in general to noncitizens [who] live in the country.”
It is wrong to deport immigrants without giving them a chance to make their cases in court, said U.S. Rep. Luis Gutierrez, a longtime leader in the congressional push for immigration reform.
Gutierrez, who represents Illinois’ 4th Congressional District, pledged to address the issue of fast-track deportations as part of the immigration reform legislation currently being considered in Congress.
“The Democrats and Republicans I have been talking to about how to craft legislation to fix our broken immigration system also recognize that there are barriers in our current system and mandatory exiles imposed by punitive laws that work against our goal of having a sensible, clear and generous immigration system in the future,” he said in a written statement.
For Monreal, mandatory exile was too much to take. Since his deportation, he had been living in Mexico City, while his wife looked for ways to bring him back. But he decided he couldn’t wait any more. After talking to his family on Easter Sunday, Monreal tried to cross the border illegally—but got caught.
“He couldn’t live without us,” Hernandez said, with tears in her eyes. “I told him not to do it. … But I guess that’s easier for me to say because I’m here with my children and he’s over there alone.”
He now sits in a federal prison in Texas, facing a charge of illegal re-entry, an offense punishable by up to five years in prison. Hernandez can’t bring herself to tell her children, Linda and William, what’s going on. They think their father, who used to drop them off at school every day, is in Mexico only temporarily. William, who refuses to cut his hair until his father returns, expects to see his dad in May.
“They miss their dad,” the 46-year-old mother said. “I’m doing everything by myself, but it is so difficult. I don’t know how other people do it.”
* * *
Traditionally, the immigration court, administered by the U.S. Department of Justice, has been the first stop for immigrants facing deportation. Typically, immigrants are summoned to court once it has been determined that they are subject to deportation. That can happen in cases where the person has committed a crime or had other contact with immigration authorities. The court doesn’t guarantee access to an attorney, but immigrants were given a chance to challenge their deportations before a judge.
But in 1996, the mechanism for fast-track deportations was created by the Illegal Immigration Reform and Immigrant Responsibility Act.
The law came 10 years after Congress granted amnesty to 2.7 million undocumented immigrants in response to a growing demand for tighter immigration laws to stem the growth of the undocumented immigrant population.
“The law was a product to increase the enforcement capacity,” said Susan Gzesh, executive director of the Human Rights Program at the University of Chicago. She added that the law also made legal residents deportable for a broader range of criminal offenses. “This law is very harsh.”
Fast-track deportations are now commonplace. In the Chicago area of responsibility, stipulated orders of removal and reinstatements made up more than 80 percent of fast-track deportations between fiscal years 2008 and 2011, the Reporter’s analysis shows. Stipulated orders of removal tallied the highest, with 11,743 people signing the order during this period, followed by 8,331 deportations that were carried out under reinstatements.
In recent years, reinstatements, which trigger deportations when there is a history of a previous removal order, have seen the biggest expansion, rising steadily from 1,479 in 2008 to 2,723 in 2011.
Nationally, reinstatements and expedited removals were the two largest categories of fast-track deportations during the period. Together, the two categories were responsible for nearly 914,000 deportations, or about 60 percent of all removals—including those carried out by the immigration courts. In the Chicago area, only a small number of expedited removals have been carried out. Between fiscal years 2008 and 2011, there were 289 expedited removals, the analysis shows.
Fleming of the National Immigrant Justice Center believes that the government is turning to fast-track deportations—which can be implemented quickly and on the cheap—to ease a mounting backlog at immigration courts and help defray the increasing costs of enforcement.
At the nation’s 58 immigration courts, an average case takes more than a year, according to the Reporter’s analysis of federal data maintained by Syracuse University’s Transactional Records Access Clearinghouse. In the Chicago immigration court, cases take even longer—an average of 589 days.
The cost of enforcing immigration laws nationally has ballooned to $18 billion in 2012 alone—more than the expenditures for all other federal law enforcement agencies combined, shows a report by the Migration Policy Institute, a nonpartisan research group in Washington, D.C. That amount has doubled since 2005.
“You have a massive backlog, and the most efficient way for [the immigration agency] to meet its goal is to remove these folks through” fast-track deportations, Fleming said. “It is the easiest way to get the numbers. … It is cheaper because they do not use court resources and involve less detention time and cost.”
Wong of Immigration and Customs Enforcement said that the agency is simply focused on “smart and effective immigration enforcement,” directing its resources to removing convicted criminals and “recent border crossers”—who are subject to expedited removal.
Advocates’ biggest concern about fast-track deportations is that the immigration officials are not telling immigrants whether they have an option for some form of relief, said Chan of the Asylum and Immigration Law Clinic.
“If you’re detained, you want to get out, and some officers will say, ‘Look, you can’t win your case anyway. Just sign this form,’” said Chan, who has been practicing immigration law for nine years and is a frequent visitor to detention centers. “Immigration [officers] are not lawyers and they don’t know the law—especially immigration law because it is really complicated.”
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Expedited removal gives immigration officers at “ports of entry,” such as O’Hare International Airport, the authority to deport immigrants without a judicial review. In 2004, the policy was expanded to apply to undocumented immigrants arrested within 100 miles of the border or those who could not prove that they had been living in the country for longer than 14 days.
In many deportation cases, immigration courts became unavailable for immigrants, said Laura Lichter, president of the American Immigration Lawyers Association, a group of attorneys who practice and teach immigration law. While the court system is imperfect, it is better than not seeing a judge at all if immigrants have an option for relief, she said.
“In the court, immigrants at least have an opportunity to get things explained to them,” she said. “They learn about other options and they can hire an attorney.”
The expedited removal process has no transparency, said Fleming of the National Immigrant Justice Center. “There are some serious concerns with the process,” he said. “It is difficult to know how [it] functions. It is effectively a black box.”
A 2005 report, “Asylum Seekers in Expedited Removal,” produced by the U.S. Commission on International Religious Freedom, found that some asylum seekers—after expressing a fear of persecution in their countries—were not given a “credible fear” interview as required by law. The independent, bipartisan federal agency is dedicated to defending the right to freedom of religion.
The researchers observed 79 cases of asylum seekers and found that 15 percent of those immigrants were not given the interview. Under the homeland security department’s regulations, “all of these aliens should have been referred for a credible fear interview,” the report noted.
Still, expedited removal is a valuable tool, said Mark Krikorian, executive director of the Washington, D.C.-based Center for Immigration Studies, which advocates for controlled immigration. “The expedited removal is something that we need to use more of,” he said. “Because it is expedited, it is faster, cheaper and it won’t clog up the immigration court.”
In Hernandez’s mind, her husband’s expedited removal did not give him an opportunity for a fair hearing.
“This wasn’t fair. We are married. We have children,” she said, adding that her husband should have been given the opportunity to see a judge. “The kids miss their dad … our dreams are crushed.”
* * *
Between fiscal years 2000 and 2009, the number of signed stipulated orders of removal peaked in 2008, with more than 40,000 nationwide, shows a joint 2011 report by the Stanford University Immigrants’ Rights Clinic and the National Immigration Law Center. The Chicago immigration court had 20,000 orders signed between fiscal years 2004 and 2009—the second highest in the nation.
But the Chicago numbers started to decrease, dropping from 3,527 in fiscal year 2008 to 2,823 in fiscal year 2011, the Reporter analysis of justice department records shows. National data mirror Chicago, showing a decrease from 46,519 in 2008 to 25,453 in 2011.
Advocates attributed the declines to their efforts to advise immigrants to not sign forms while in custody.
Wong of Immigration and Customs Enforcement said he didn’t know why the numbers decreased. But his officers have recently noticed that more immigrants are declining to sign the forms, he added, and choosing to stay in detention in the hope that they will get amnesty under immigration reform.
Dana Leigh Marks, a judge in the San Francisco immigration court and the president of the National Association of Immigration Judges, said she won’t sign off on any stipulated order of removal because she doesn’t trust that immigrants are being fully informed about the consequences.
Marks said she began rejecting stipulated orders of removal after a 9th Circuit decision in San Francisco that overturned its use in that case in 2010. A Mexican national had signed the form, and the court later found errors, including inadequate translation provided by immigration officials. The court ruled that the plaintiff couldn’t have knowingly waived his right to appear before a judge.
“The case made judges think about the process for stipulated orders of removal,” Marks said. “There are just not enough safeguards.”
Mehlman of the Federation for American Immigration Reform argued that the use of stipulated orders of removal is needed to keep the courts flowing. He compared stipulated orders to plea deals in criminal proceedings. Immigrants are “savvy,” he said, and fight their cases as a strategy to stay in the country legally.
“At the end, people who truly believe they have a standing to be here will make that very clear,” Mehlman said.
But Lisa Palumbo, the supervisory attorney of the Immigrants and Workers’ Rights Practice Group at the Legal Assistance Foundation, pointed out that most immigrants simply don’t understand the form.
“The majority of the people who signed [a stipulated order of removal] didn’t understand it amounted to a removal order,” Palumbo said.
“These immigrants don’t get a full screening where an attorney can explain what it means.”
Wong insisted that his staff follows agency procedures, providing translators to immigrants when needed and fully explaining the legal implications of their actions. “We make sure we do this in every case,” he said. “And that’s something we take very seriously. We don’t want to violate anyone’s rights by giving them something that they don’t understand.”
But Lichter of the American Immigration Lawyers Association isn’t convinced. The stipulated order of removal “gives the illusion of fairness by having a process, a piece of paper and signatures,” she said. “It is really only an illusion unless people meaningfully understand what they are agreeing to.”
* * *
On the evening of Nov. 6, Election Day, the results poured in, and “changing demographics” was the buzzword on the airwaves. As the night wore on, it became clear that President Barack Obama would carry the presidential contest, thanks to the huge growth of Latino voters in many of the battleground states.
Almost overnight, the rhetoric over immigration reform was transformed in the nation’s capital. In a stark contrast to their tone before the election, top GOP leaders softened their stance and grew receptive. Obama traveled to Nevada and announced that the reform was one of his top priorities.
“I’m here because most Americans agree that it’s time to fix a system that’s been broken for way too long,” Obama told an audience at a Las Vegas high school on Jan. 29. “Now is the time to do this so we can strengthen our economy and strengthen our country’s future.”
But even if reform happens, most immigrants who have gone through fast-track deportations are unlikely to see any benefit, said Fleming of the National Immigrant Justice Center. “All those folks are in danger of not being included in this reform,” he said. “The reform is necessary, but it won’t cover all the damage that has been done over the last 10 years of enforcement.”
Lichter said most politicians don’t realize that many undocumented immigrants would be eligible to obtain legal status—had they not had an expedited removal or other fast-track deportation on their records.
“There are people who could be sponsored by a family member or an employer, but they simply can’t because they have these [fast-track] removals,” said Lichter, who said she sees many such cases in her practice. “They are here illegally because there are many roadblocks in the path to citizenship.”
But Joseph Daleiden, co-founder of the Midwest Coalition to Reduce Immigration, had little sympathy. Rewarding people who entered the country illegally with amnesty or other preferential treatment, he said, is like cutting in line in front of people who follow the laws.
“People from all over the world are waiting to come here,” said Daleiden, a retired economist. Undocumented immigrants “are making a sham of the whole system.”
Any reform measure should include a waiver or some other relief for immigrants who have been subjected to fast-track deportations, said Fred Tsao, policy director at the Illinois Coalition for Immigrant and Refugee Rights.
Successfully pushing for such change will be difficult, but the issue is really about restoring families that have been torn apart by these deportations, Tsao said.
“We are really talking about fixing the problem of long-term separation for these families,” he said.
U.S. Sen. Dick Durbin, an Illinois Democrat who is part of the “Gang of 8”—a bipartisan group of senators working on a blueprint for immigration reform, declined to comment for this story, citing ongoing negotiations.
Gutierrez acknowledged that heavy enforcement has left many immigrants with removals on their records. Immigration reform should include immigrants who have these records, he said.
“I am hopeful that some of those who have deportation orders, especially those with families in the U.S., may get some form of relief,” he said in a written statement. “But it is a battle I am still fighting.”
James Reddick helped research this article.
Under “reinstatements,” immigrants have no right to an immigration hearing under the current law. But since all reinstatement cases involve illegal re-entry–a federal felony–U.S. Immigration and Customs Enforcement could choose to work with the U.S. Department of Justice to bring criminal charges instead–thereby prompting a judicial hearing. Reinstatements and other fast-track procedures are legal strategies put in place by the laws enacted by Congress–not by the U.S. Immigration and Customs Enforcement.