By Brock N. Meeks Chief Washington correspondent
msnbc.com
updated 11/3/2005 1:41:26 PM ET 2005-11-03T18:41:26

Even as the nation’s top homeland security official promised Wednesday to beef up immigration enforcement, vowing to “return every illegal alien,” the agency tasked with that job is battling a year-old federal appeals court ruling that allows tens of thousands of previously deported aliens to remain in the country.

The ruling is a quirky one, however, affecting only the nine western states making up the jurisdiction of the 9th U.S. Circuit Court of Appeals, which also happens to contain the biggest illegal trafficking corridors into the United States.

In 1996 Congress created a provision in the immigration law, known as “reinstatement of removal.”  The provision says,  “Look, if you got removed (deported) and you came back we’re going to reinstate the old (deportation) order and we’re going to send you out based on that previous determination,” said William Odencrantz, director of Field Legal Operations for Immigration and Customs Enforcement, “and we’re not going to give you another whole new proceeding.”

The change allowed a boots-on-the-ground immigration officer to quickly reinstate the deportation status of someone illegally entering the country without having to go back in front of an immigration judge, a process that can initially stretch out for years, Odencrantz said.

Government immigration officials hailed the process, calling it fast and efficient, and as a bonus it provided some welcome breathing room for a beleaguered immigration legal system nearly floundering under a crushing backlog of cases.   Last year the 215 judges in the immigration legal system handled nearly 300,000 cases.

Immigration advocates, however, called the change cold-blooded, ruthless, and saw it as a brutal legislative attack on 50 years of immigration law.  And in November of 2004 the 9th Circuit agreed with them.

In the ruling the circuit court said a plain reading of the law “provides that an immigration judge must conduct all proceedings for deciding the inadmissibility or deportability of an alien,” and that someone with a badge and a gun shouldn’t be making those decisions, regardless of whether or not a person had previously been deported.

“We were stunned by the decision,” said Odencrantz.  The court’s decision completely misread the intent of Congress, he said.  And once government lawyers digested the ruling and forecast its impact, they asked for, and were granted a re-hearing on the matter.  That hearing is scheduled to take place next month.

In its rehearing request the government said the ruling “has a significant adverse impact on the Government's ability to remove tens of thousands of illegal aliens in the 9th Circuit without undue delay.”

The reinstatement process, which the court struck down, has removed 98,000 illegal aliens in the last three years from the states in the court’s jurisdiction, the government’s petition says.  Of that number 42,000 were removed in 2004 alone.  “The reinstatement procedure accounts for 40 percent of all removals nationwide, and two-thirds of nationwide reinstatements take place in the 9th Circuit,” according to the government’s legal documents.

“We can’t detain the large volume of people that are here illegally that we have in proceedings,” Odencrantz said.  “We can’t detain them all because we just don’t have enough space,” he said.  The government only has 19,500 detention beds nationwide. “So for every person we have to detain there is someone else we have to release,” he said.

Not commodities, 'we’re talking lives'
Forget for a moment that before the reinstatement process was stuck down in the 9th Circuit it took a single immigration officer little more than 24 hours to have a previously deported alien kicked out of the country, says Trina Realmuto, a consulting attorney with the American Immigration Law Foundation. 

Those decisions, she said, were made by someone not trained in the law or schooled in the nuance of complex immigration issues. Realmuto said people caught up in the reinstatement process had zero legal recourse. “Because when you’re talking about someone’s life and having them separated from their family, due process requires procedural safeguards and the current regulation doesn’t provide those safeguards,” Realmuto said.  “No offense to the immigration agents, but they’re not lawyers,” she said.  “We’re not talking about a commodity here; we’re talking about people’s lives.”

The government can still reinstate a deportation order, Realmuto said.  “It’s not like their hands are completely tied… we’re just saying that person should be a judge.”

Realmuto acknowledges that it sounds like a simple procedure to reinstate a prior deportation order “but the issue is much more complex.”  For example, people are often deported in absentia or they never receive notice of their removal order in the first place or they have a legitimate claim to U.S. citizenship through marriage or birth, but aren’t given the opportunity to gather the evidence and present it under the current reinstatement procedure. 

“The reason we feel this is important is because there are scores of people who contest the different facts of the case that make up their reinstatement order,” said Realmuto, who helped write a legal paper in support of upholding the current ruling when it goes before the court next month for a rehearing.

Fraying at the edges
There are indications that the detention system in the western states is beginning to crack under the strain of having to deal with the tens of thousands of “repeat immigration status violators,” as government officials call them. 

First there is the cost, which is so big and contains so many different factors that Immigration and Custom Enforcement officials won’t even offer a guess at a figure.

ICE's budget has been significantly stretched in recent years. Dealing with the extra detention load created by the court decision “creates a situation where finite resources could be diverted from future immigration enforcement actions,” ICE said in a statement about the impacts of the case.

And just two months ago the largest government immigration detention facility in the Los Angeles basin, the 1,000 bed Mira Loma Detention Center, found itself filled to capacity.  ICE officials said the crammed conditions could be traced directly to the reinstatement situation. 

“Even though we had people by the hundreds that voluntarily agreed to have their [deportation] orders immediately reinstated, we couldn’t comply because of the court ruling,” said an ICE official that works at Mira Loma.  “We had no choice except to lock them up as they waited to see a judge,” the official said, “and that situation reached a boiling point,” as the detainees nearly rioted.

The situation at Mira Loma was eventually diffused without force or violence when ICE lawyers resurrected a moribund legal maneuver called “stipulated removal.”  The process is essentially a signed agreement allowing the deportee to be removed before actually seeing a judge.  “It bought us a little breathing room,” says the ICE official, “and it only works in the case where the alien agrees to it.”

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