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ACLU: Speedy Deportations Force Out Many Without Hearing

An ACLU survey shows many people who are deported do not get a hearing and forces out some people with lawful status.
Image: Undocumented Immigrants To U.S. Repatriated To Guatemala
MESA, AZ - JUNE 24: An undocumented Guatemalan immigrant, chained for being charged as a criminal, prepares to board a deportation flight to Guatemala City, Guatemala at Phoenix-Mesa Gateway Airport on June 24, 2011 in Mesa, Arizona. John Moore / Getty Images

Of the 438,421 people deported from the U.S. in 2013, about 83 percent did not have a hearing, never saw an immigration judge or were kicked out of the country by the same officer who made the arrest, the American Civil Liberties Union said in a new report.

Children, asylum seekers, longtime residents of the U.S. and people with lawful status, including citizens, were among those ejected from the country in this way, the ACLU found in interviews with individuals and attorneys and a review of cases.

Often, the deported were forced to sign forms they don’t understand, were threatened or lied to about their rights, the organization said.

“Deportation is not a time out. There are huge penalties … sometimes a life (ban from the country) without any opportunity to get that reviewed. It’s incredibly unfair not to provide the opportunity to protest that determination,” said Sarah Mehta, who authored the ACLU report: “American Exile: Rapid Deportations That Bypass The Courtroom.”

Release of the findings come just after President Barack Obama has used his executive powers to provide protection from deportation for three years to about 4 million individuals who have lived in the country five years and to beef up border enforcement that would, among other things, enhance apprehensions and removal of people who have more recently tried to enter the country illegally.

Deportations without hearings were not always the norm. Before 1996, just about every person who received a formal deportation order had a full hearing before an independent judge, the ACLU said.

The executive action could help ease some of the backlogs in immigration courts that leave some waiting in the country for years for hearings. Some of those waiting may be eligible for deferred deportation under the president's executive action.

In response to the report, Department of Homeland Security spokeswoman Marsha Catron said people in DHS custody "maintain important rights and due process protections throughout the course of their proceedings."

“An individual may be removed from the U.S. only after any claims for relief from removal, including asylum, are fully evaluated," she said.

The Obama administration has for years tried to emphasize deportation of what officials have referred to as "the worst of the worst." That has meant trying to make murderers, rapists, people who pose a danger to the U.S., the priority for deportation.

But the effort has also swept up people who have not been convicted of a crime or who had only immigration violations and people that are not necessarily a threat to American safety.

To that end, Obama's executive order calls for further refining the nation's deportation priorities. However, it also reinforces a focus on "recent arrivals," which includes people who have previously been deported and are caught trying to enter the country again.

In the 2014 fiscal year, which ended in late September, the Department of Homeland Security filed 222,956 applications for removal orders in immigration courts, up 12.2 percent from the previous year, according to Transactional Records Access Clearinghouse. Thirty-seven percent of the applications were on charges of entry without inspection and 38 percent were for other immigration charges, the data shows.

Within that increase, however, was a substantial drop in applications based on allegations of criminal activity by the individual. Only 20,0216 of the filings were based on some criminal offense, down from 27,671 of 198,723 filings in the 2013 fiscal year, TRAC reported.

Deportations without hearings were not always the norm. Before 1996, just about every person who received a formal deportation order had a full hearing before an independent judge, the ACLU said.

The Illegal Immigration Reform and Responsibility Act of 1996 changed that by replacing judges with immigration officers with authority to issue what are known as removal orders without the hearings.

People are shuttled out of the country through a variety of procedures. Forty-four percent of all those deported in the 2013 fiscal year, which ended Sept. 30, 2013, were deported through expedited removal which provides little due process, ACLU said.

ACLU said the procedures often are difficult to challenge because of the speed at which they occur, the fact that limited evidence is required for removals and because removal proceedings are not fully recorded and documented.

The expedited or summary removals were intended to keep people not allowed in the United States out, but the ACLU said the summary removals have become the default, even though their use is not mandated under current law.

"DHS officers, who have great power to expel non-citizens with limited review, also have discretion to refer an individual for a hearing in front of a judge ... There are poeple living productive lives in the United States who are alive today because a Border Patrol agent followed the law, took the essential step to ensure someone understood their rights and referred them for help," the ACLU said in its report.

The costs associated with providing more hearings should not be an issue, considering how much is spent to arm the border, Mehta said.

"At least some should be spent making sure we are doing it right so people who have rights and claims are not being thrown out unjustly," she said. "We spend a lot of money prosecuting and jailing them when they come back. It's not about a lack of money, but what prioritization we are giving to justice."

"If fairness and justice matter, our government has to allow people with claims and rights to be in the United States a real opportunity to defend those rights," said Mehta.