Chapter 2: The Constitutional System — Immigration Courts and Immigration Offenses

Immigration Courts

• Overview: Immigration Courts reside wholly within the executive branch as part of the Executive Office for Immigration Review, an agency within the Department of Justice (DOJ).
• Jurisdiction and matters heard: illegal entry into the U.S.; deportation proceedings for immigrants who have committed crimes in the U.S. while in the country legally (e.g., on a student or work visa); asylum reviews for those fleeing persecution.
• Case statistics (fiscal year data):
  • Mid-2022 deportation orders: $24{,}689$, comprising $22.7\%$ of all deportation cases heard.
  • Fiscal year 2019 asylum approvals: $18{,}851$, comprising $20.62\%$ of all requests heard.
• Differences from federal district courts:
  • Decisions are made exclusively by an immigration judge.
  • Many judges are Administrative Law Judges (ALJs) selected by the Attorney General; the AG could request a particular enforcement approach and could remove a judge from a case.
• Constitutional protections and funding:
  • Not all constitutional protections from federal district courts apply; notably, there is no guaranteed right to court-appointed counsel if a litigant cannot afford one; litigants may hire their own counsel.
  • In federal district court, a defendant in criminal charges can have a lawyer appointed by the court (Sixth Amendment rights), which is not guaranteed in immigration court (discussed in Chapter 12).
  • Representation rates: fewer than $40\%$ of those who appear in immigration courts are represented by counsel (per the American Immigration Council).
• Staffing and backlog (as of 2022–2021):
  • Immigration courts: approximately $60$ around the United States; immigration judges: roughly $330$ nationwide.
  • Backlog: as of May $2021$, more than $1{,}000{,}000$ immigration cases backlog, more than double the caseload of all U.S. district courts combined.
• Appeals and review avenues:
  • First appellate avenue: Board of Immigration Appeals (BIA), based in Virginia, staffed by about $20$ judges, appointed by DOJ.
  • Further appeals: to U.S. Circuit Courts or the Supreme Court of the United States, at the Court’s discretion.

The Asylum Process and Deportation Today

• Asylum definition: Protection granted to persons who have fled persecution; those granted asylum are eligible for permanent residency in the United States.
• Expedited removal (IIRIRA 1996): DHS interpretation allows deportation without a hearing for those who enter illegally and are captured within $100\text{ miles}$ of the border within $14\text{ days}$ of entry; applies to individuals who arrived by water route if captured within $2\text{ years}$ of entry.
• Asylum processing following expedited removal:
  • If expedited removal is not applicable and an asylum hearing is forthcoming, border agents may refer the asylum request to an Immigration Judge.
  • Preliminary credibility assessment: more than $70\%$ of requests are granted at this preliminary stage.
  • An Immigration Judge decides on asylum validity, with approximately $50\%$ of claimants granted asylum in $2023$.
• Judicial review: Supreme Court has indicated that judicial review of asylum requests is not permissible (as cited in cases such as Department of Homeland Security v. Thuraissigiam, $591\,U.S.$ (2020)).
• Detention during proceedings: If expedited removal is not applicable and a hearing is forthcoming, officials can detain an undocumented person without bail.
• INA and criminal grounds for removal:
  • Under the Immigration and Nationality Act, noncitizens can be removed for committing a "violent crime."
  • Supreme Court rulings:
  • Sessions v. Dimaya (2018): overturned a deportation order; burglary of an unoccupied home did not meet the "violent crime" definition.
  • Nielsen v. Preap (2019): a person convicted of a criminal offense can be deported even if deportation occurs years after the conviction; no requirement to commence deportation proceedings immediately after conviction.
• The Title 42 controversy (public health emergency policy):
  • 42 U.S.C. § 265 (Public Health Service Act): allows the President to take emergency action to restrict entry during a public health emergency.
  • 2020: President Trump invoked § 265 to implement restrictions on asylum seekers during the COVID-19 pandemic.
  • 2021–2022: President Biden continued the policy; December 2022: Supreme Court issued an injunction preventing termination of the Title 42 policy.
  • May 11, 2023: Title 42 policy expired as the national COVID-19 emergency ended; transition to Title 8 policy under the INA, which allows five- and ten-year bans for illegal border crossers (a harsher regime than Title 42).
• Title 8 vs. Title 42 implications:
  • Title 8 provides a pathway to enter the country and await asylum adjudication in Immigration Court with monitoring; but it also authorizes significant sanctions including multi-year bans for illegal crossings.

Deferred Action for Childhood Arrivals (DACA)

• 2012 policy under President Obama: deferred deportation for eligible individuals brought to the U.S. illegally as children; two-year deferrals with work authorization; renewals available.
• Eligibility criteria for DACA:
  • Must be enrolled in school or have graduated from high school, obtained a GED, or have honorably discharged from the U.S. Armed Forces or Coast Guard.
  • Felony convictions disqualify; a "significant" misdemeanor also disqualifies; up to two "non-significant" misdemeanors could be allowed.
• Federal politics and Supreme Court: Under the Trump administration, attempts were made to end DACA; the Supreme Court declined to permit termination due to reliance interests and the Administrative Procedure Act requirements; the Court did permit travel/immigration restrictions under other contexts (e.g., Trump v. Hawaii, $585\,U.S.$ (2018)) and related rulings (with regard to agency procedures and reliance interests) (contextual references to DHS v. Regents of the University of California, $591\,U.S.$ (2020)).

The Tribal Court System and Native Sovereignty

• Historical basis: Indian Reorganization Act of $1934$ authorized Native American tribes to create their own laws governing criminal activity on reservations and to enforce those laws through tribal courts.
• Current scope: roughly $400$ tribal courts nationwide.
• Jurisdiction:
  • Criminal jurisdiction over offenses on Native land; civil jurisdiction over torts on Native land.
  • 2013 Violence Against Women Reauthorization Act (VAWA) extended tribal court jurisdiction to cases involving domestic violence and protection order violations, regardless of whether defendants are Native or non-Native; approximately $30$ tribes have implemented such tribal courts; these are the only tribal proceedings that must respect the right to counsel.
• Federal prosecutions on tribal land:
  • Under federal law, a person’s third domestic violence offense on Native land can be prosecuted in federal court.
  • United States v. Bryant (2016): two tribal convictions qualify as prior convictions for federal purposes even if the defendant was not represented by counsel in the prior cases.
• Alternatives when tribes lack funding or operate a tribal court:
  • Court of Indian Offences (often called CFR courts) exists under 25 C.F.R. Part 11; there are five CFR courts around the country.
  • Federal magistrate judges hear these cases; appeals go to the Court of Indian Offences.
• Major Crimes Act of 1885:
  • Certain felony offenses committed by a Native American on tribal land can become federal offenses prosecuted in U.S. district court; with amendments, more than a dozen offenses fall under this act.
  • Supreme Court has allowed consideration of some lesser-included offenses, defined under applicable state law in the location where the offense occurred.

Key Concepts in Immigration Offenses and Constitutional Framework

• Constitutional basis for immigration law:
  • Article I, Section 8 of the U.S. Constitution vests Congress with the power to establish a uniform Rule of Naturalization; interpreted as giving Congress plenary power over immigration.
• Historical development of immigration law:
  • Naturalization Act of 1790 (citizenship limited to free white persons).
  • Expatriation Act of 1868 (renunciation of U.S. citizenship allowed).
  • Fourteenth Amendment (birthright citizenship; anyone born on U.S. soil or territory is a U.S. citizen; parentage may confer citizenship).
  • Chinese Exclusion Act of 1882; Anarchist Exclusion Act of 1903; Immigration Act of 1924 (national-origin quotas).
  • Mid-20th century shifts: Immigration and Nationality Act of 1952 (McCarran–Walter Act) and the Immigration and Nationality Act of 1965 (Hart-Celler Act) removed country/regional bans and implemented caps by entry method; system remains today.
• Key statutory offenses and enforcement provisions:
  • 8 U.S.C.A. § 1325: prohibits improper entry by foreign nationals.
  • 8 U.S.C.A. § 1326: makes it an offense to reenter the United States after removal.
  • Examples of prohibited conduct under § 1325 include:
  • Entering or attempting to enter the United States at any time or place other than as designated by immigration officers.
  • Eluding examination or inspection by immigration officers.
  • Entering or obtaining entry by willfully false or misleading representations or concealment of a material fact.
  • Entering into a marriage for the purpose of evading immigration laws.
  • Knowing establishment of a commercial enterprise for the purpose of evading immigration laws.
• Practical and ethical implications:
  • Tension between border security and due process protections (including access to counsel) in immigration proceedings.
  • The shift from Title 42 to Title 8 implicates policy trade-offs between expediency in removal and access to asylum adjudication.
  • Debates about the fairness and efficiency of asylum adjudication, the backlog in courts, and the adequacy of counsel for noncitizens.

Selected Jurisprudence and Administrative Context

• Department of Homeland Security v. Thuraissigiam, $591\,U.S.$ (2020): addresses limits on expedited or procedural review; related to access to review of asylum claims.
• Arizona v. United States, $567\,U.S.$ (2012): discusses state vs. federal authority over immigration enforcement (cited in the broader context of plenary federal power over immigration).
• Sessions v. Dimaya, $584\,U.S.$ (2018): concerns the definition of a “violent crime” for immigration purposes; held certain lower-level offenses may not qualify as violent crimes under the statute.
• Nielsen v. Preap, $586\,U.S.$ (2019): confirms that deportation can proceed even if it occurs well after conviction; no requirement to begin deportation proceedings immediately after conviction.
• Trump v. Hawaii, $138\,S. Ct.$ (2018): upheld presidential authority to restrict entry under the Travel Ban framework; relates to broader executive power in immigration policy.
• Department of Homeland Security v. Regents of the University of California, $140\,S. Ct.$ (2020): associated with DACA litigation and administrative discretion, among other immigration policy issues.

Key Dates and Milestones (contextual references)

• 1790: Naturalization Act—citizenship restricted to free white persons.
• 1868: Expatriation Act—renunciation of citizenship.
• 1882: Chinese Exclusion Act—entry caps by country; early immigration restriction.
• 1903: Anarchist Exclusion Act—categories of excluded persons (beggars, anarchists, epileptics, prostitutes).
• 1924: Immigration Act—national-origin quotas; restricted immigration from particular regions.
• 1952: McCarran–Walter Act—introduced caps and continued control of immigration policy.
• 1965: Hart-Celler Act—abolished country quotas in favor of a uniform preference system; caps remain by entry method.
• 1996: Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA)—established expedited removal mechanisms.
• 2012: DACA policy announced by President Obama.
• 2020: Title 42 invoked during COVID-19; DHS v. Thuraissigiam; DHS v. Regents related contexts.
• 2023: Title 42 expired (May 11); Title 8 framework reinstated following the end of the public health emergency.

Numerical and Legal References (LaTeX-formatted)

• Deportation orders ( Immigration Courts, mid-2022): $24{,}689$; share of deportation cases: $22.7\%$.
• FY2019 asylum approvals: $18{,}851$; share of requests heard: $20.62\%$.
• Immigration Courts (as of 2022): courts $60$; judges $330$.
• Backlog (May 2021): >$1{,}000{,}000$ cases; more than twice the caseload of all U.S. district courts combined.
• BIA case load (FY2019): completed $19{,}448$ of $55{,}971$ filed cases.
• Tribal and CFR courts:
  • Approx. tribal courts: $400$.
  • Tribes with formal VAWA-related tribal courts: $30$.
  • CFR courts: $5$ around the country.
• Violent crime and deportation jurisprudence: Sessions v. Dimaya, $2018$; Nielsen v. Preap, $2019$; Department of Homeland Security v. Thuraissigiam, $2020$; Arizona v. United States, $2012$; Trump v. Hawaii, $2018$; DHS v. Regents of the University of California, $2020$.
• Statutory sections cited: 8 U.S.C.A. § 1325; 8 U.S.C.A. § 1326.
• Key distance/time benchmarks for expedited removal: $100\text{ miles}$; $14\text{ days}$; water-entry window: $2\text{ years}$.
• DACA eligibility criteria: can include school enrollment, high school graduation, GED, or honorable discharge; allowed up to two non-significant misdemeanors; felonies disqualify; significant misdemeanors also disqualify.
• Asylum grant rate (preliminary stage): >70\%; final grant rate (2023): $50\%$.
• Title 42 expiration and Title 8 transition: May 11, $2023$; five- and ten-year bans under Title 8.