Ice, Ice, Baby!: A Split About Federal Jurisdiction in Expedited Removal Procedures

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Under the Immigration and Nationality Act, “any alien who is convicted of an aggravated felony at any time after admission is deportable.”

Non-citizens with legal status who are convicted of an aggravated felony are afforded a hearing before an Immigration Judge. They are allowed to plead their case and have their day in court.

For non-citizens without legal status, they undergo an expedited process of removal without a hearing. This expedited process is known as administrative removal.

Administrative Removal

In administrative removal, an Immigration and Customs Enforcement (ICE) Officer examines the evidence and determines whether or not the felony occurred. If the officer believes the evidence is lacking, then the non-citizen proceeds with regular removal proceedings in front of an Immigration Judge. If the officer believes the non-citizen committed the felony, the person is served a removal notice.

The non-citizen can challenge their aggravated felony determination through the agency or through the courts. However, this removal is not reviewable by an Immigration Judge. Instead, circuit courts have the jurisdiction to review administrative removal determinations.

Recently, however, there has been confusion within the courts about whether or not a circuit court has jurisdiction to hear a challenge when the non-citizen has not exhausted all the agency remedies.

Typically, a court may review a final order of removal against a non-citizen only if “the alien has exhausted all administrative remedies available to the alien as of right.” 8 U.S.C. § 1252(d)(1). When a non-citizen has an opportunity to raise a claim in administrative proceedings but does not do so, he fails to exhaust his administrative remedies as to that claim. See Massis v. Mukasey, 549 F.3d 631, 638 (4th Cir. 2008).

The question plaguing the circuit courts is whether the DHS’s expedited removal procedures allow aliens to contest only the factual basis for their removal, and not to raise legal arguments. If so, then a non-citizen has an arguable claim that he has not failed to exhaust his remedy; in other words, because there was no remedy to exhaust, the non-citizen is entitled to appellate review.

Circuit Split

In 2015, the Fourth Circuit set out to answer the question of whether a court has jurisdiction to hear a challenge when the non-citizen has not exhausted all agency remedies. Etienne v. Lynch.

In Etienne, the Fourth Circuit had to decide whether they had jurisdiction to hear a challenge from Etienne, a non-citizen from Haiti convicted of an aggravated felony, regarding his expedited removal procedure, when he had failed to challenge the legal basis of his removal before the agency.

According to the Fourth Circuit, the answer was: yes.

The Fourth Circuit held that the appellate courts do have the authority to consider an alien’s petition for review, even if they have not exhausted administrative avenues. The court reasoned that under the current immigration regulations, non-citizens can only challenge their aggravated felony convictions on factual findings. There is no avenue for a non-citizen to challenge their conviction on legal conclusions aside from the circuit courts. Therefore, the Fourth Circuit held that it was appropriate for the circuit courts to review administrative removal determinations. The Fourth Circuit supported their decision by citing the Fifth Circuit’s decision in Valdiviez-Hernandez v. Holder, where the Fifth Circuit also held that the circuit court had jurisdiction to review an expedited removal.

However, the Fourth Circuit’s decision in Etienne, and the Fifth Circuit’s decision in Valdiviez, directly contrasts with the Eleventh Circuit’s 2014 decision in Malu v. U.S. Attorney General.

In Malu, the Eleventh Circuit held that the court lacked jurisdiction because the non-citizen failed to exhaust the administrative avenues available within the agency. The Eleventh Circuit believed that the administrative proceedings did provide an opportunity for aliens to challenge factual allegations and legal conclusions. Therefore, it held that the circuit courts do not have jurisdiction to review until the alien has exhausted all available agency remedies.

Looking Forward

As stated prior, equality and predictability are essential to the law, particularly in the immigration context, where slight differences in law may be the difference between deportation and legal residency. Thus, as long as the courts remain divided about this question of federal jurisdiction, there will be inefficiency and injustice in the immigration system. While it seems unlikely that the Supreme Court will provide clarity on this issue any time soon, a resolution is necessary in order for the immigration system to not only run more effectively, but fairly and predictably—for all parties, in all locales.