Appeals Court Rejects Immigrants’ Right to a Lawyer in Expedited Cases

Article subtitle: 
Judges uphold deportation of a Mexican immigrant who had argued for right to hire legal counsel
Article author: 
Article publisher: 
The Wall Street Journal
Article date: 
Wednesday, February 8, 2017
Article category: 
National Issues
Article Body: 

Immigrants who are caught entering the U.S. illegally have no right to legal representation, a federal appeals court in San Francisco ruled on Tuesday.

The Ninth U.S. Circuit Court of Appeals upheld the deportation of a Mexican immigrant who was arrested while crossing into the U.S. in 2012 and returned to his country the following day.

The ruling, from a three-judge panel, came hours before a different Ninth Circuit panel was set to consider an executive order by President Donald Trump that temporary suspended travel from seven countries and halted the admission of refugees.

The ruling Tuesday dealt with whether immigrants caught entering the U.S. illegally have due process rights to legal counsel under the Fifth Amendment, an issue separate from those raised in the executive-order challenge.

Under a 1996 federal law, Customs and Border Protection officers can use a process called “expedited removal” to swiftly deport immigrants who are caught within 100 miles of the border without valid entry documents and who have been in the U.S. fewer than 14 days.

Immigrants subject to expedited removal receive no hearing, see no judge and have no right to appeal. Nearly half of all removals from the U.S. follow this process, according to the Department of Homeland Security.

Rufino Peralta-Sanchez, who was caught by U.S. Border Patrol agents a mile inside the U.S. border, had argued for a right to hire a lawyer to assist him during the removal process.

Judge Jay Bybee, writing for a 2-1 majority, said allowing lawyers to take part in expedited removals would defeat their purpose, “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 case.”

The Trump administration is considering expanding eligibility for expedited removal to include immigrants who have been in the U.S. longer and are arrested farther from the U.S. border.

Kara Hartzler, who represents Mr. Peralta-Sanchez, said such changes, combined with Tuesday’s ruling, would mean that a vast number of immigrants living in the U.S. could be summarily deported without counsel.

Judge Harry Pregerson used his dissent to condemn what he called a “flawed” and “cruel” system of expedited removals that can result in the improper deportation of asylum seekers who express a credible fear of persecution back home.

A spokeswoman for the U.S. attorney’s office in San Diego, which represented the federal government, declined to comment.

Write to Joe Palazzolo at