Due Process Waivers in Immigration Law

by Jill Family — Wednesday, Mar. 15, 2017

The Trump Administration’s immigration law policies are shining new light on the due process gaps in immigration law. In addition to the due process issues raised by his travel ban, President Trump’s new policies on expedited removal raise legal questions about the absence of process in immigration law.

There is another due process gap that has existed for a long time, but may widen under the Trump Administration: waivers of rights to due process. Years ago, I wrote about these waivers as one type of diversion from a hearing before an immigration judge. The idea is that the government need not provide a removal hearing before an immigration judge if the foreign national has waived rights to process. In the past, these waivers have come from at least two major sources: waivers obtained as a condition under the Visa Waiver Program and waivers obtained as a part of a stipulated order of removal.

Under the Visa Waiver Program, visitors to the United States must waive rights to due process as a condition to obtain visa-free travel to the United States. The program eliminates the need for a visa, but does not guarantee admission into the United States. In exchange for boarding a plane without first enduring the lengthy and expensive process of obtaining a visa at a US consulate, US law demands a broad waiver of rights. The statute states that anyone who benefits from the Visa Waiver Program “has waived any right” to: (1) challenge the immediate decision whether to admit the person into the United States and (2) “contest, other than on the basis of an application for asylum, any action for removal of the alien.” The government has argued in litigation that the “any action for removal” language applies in perpetuity. Even if a traveller is placed in removal proceedings 30 years later, the government maintains that the waiver still applies.

This phenomenon recently was in the news related to Daniela Vargas’ encounters with ICE. Daniela Vargas, 22, received a grant of deferred action under the Deferred Action for Childhood Arrivals (DACA) policy. Her DACA grant had expired. ICE took Daniela into custody right after she applied to renew her prosecutorial discretion grant under DACA (and right after she spoke publicly about her immigration story). News reports suggested that ICE might not give Daniela any removal hearing; that she could be removed from the United States without any hearing before an immigration judge. Why? Well, she had entered the United States under the Visa Waiver Program when she was seven and had waived her due process rights. Her family overstayed its period of lawful entry under the program. Eventually ICE released Daniela from detention, but her story illustrates the reach of these waivers. There are over 18 million entries into the United States per year under the Visa Waiver Program. If the administration places increased pressure on enforcing these waivers, there will be legal challenges. For example, if the government pushes to enforce the waiver in Daniela’s case, would a court enforce it? She was seven when she “agreed” to waive her due process rights.

The other scenario involves stipulated orders of removal. This is when the government and a foreign national agree to removal without a hearing. Both the government and the foreign national stipulate that removal is the agreed upon result. By stipulating to removal, a foreign national waives any rights to a hearing before an immigration judge. Such stipulated orders of removal raise concern because of the unequal bargaining power and skill involved. The foreign national overwhelmingly does not have an attorney, does not speak English, and certainly is not trained in US immigration law. The government has used the stick of detention pending a hearing to encourage stipulated removal without a hearing. In the past, the government has even used stipulated orders of removal as a term of a criminal plea bargain.

Increasing the use of waivers of due process rights might be enticing to an administration bent on removing more foreign nationals without investing in immigration judges. Ultimately the courts would face serious questions about these waivers and the role of individual rights in immigration law. The administration could avoid that litigation by simply hiring more immigration judges and providing hearings.

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About Jill Family

Jill Family is the Commonwealth Professor of Law and Government at Widener University Commonwealth Law School. She also directs the law school's Law and Government Institute, which educates students and the public about government law.

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