Earlier this week, Immigration and Customs Enforcement in Jackson, Mississippi, arrested and detained Daniela Vargas, an undocumented immigrant, after she spoke out about immigration issues at a conference.
Vargas was issued DACA, a two year renewable protection from deportation, that had lapsed, and because she entered the country on a visa waiver program, immigration officials are now stating that she has no right to a hearing before a judge. Vargas can be put on the next plane to Argentina.
This news has sent shockwaves through immigrant communities. Non-citizens with DACA no longer feel safe, let alone those who have no protection from deportation. Advocates are urging people with DACA to not let it lapse, and to not speak out publicly about their immigration statuses. However, putting the onus on those who have taken great risks to protect themselves, hardly seems like an adequate answer to the Trump Administration’s continued assault on immigrant rights. Instead, we need to continue to organize, litigate and expose the injustices inherent in this system.
This is not the first time that ICE has tried to deport a DACA-eligible person under a pretext, and it will not be the last. The U.S. government has long used immigration as a way to target political activists starting from Emma Goldman to Marcus Garvey to Tam Tran and now, Daniela Vargas.
The fact that Vargas can be removed without trial, is probably not applicable to most people with DACA, and stems from the fact that she came here under the visa waiver program. Under the Visa Waiver Program, certain non-citizens are permitted to enter the United States as tourists for 90 days or less if they, among other things, waive any right “to contest, other than on the basis of an application for asylum, any action for removal of the alien.” But does that apply to minors and children who were brought here by their parents and grew up to become adults who knowingly or unknowingly overstayed their admittance?
Imagine the case of Vargas, a minor who is brought over at the age of seven to the United States. She probably doesn’t speak or understand English at this time. She is made to sign a “visa waiver” form at the port of entry, waiving her right to a hearing in immigration court. The minor grows up in the U.S., overstaying the 90 days, through no real fault of her own, or anyone else. When she is 22, she gets stopped and detained by ICE for being politically visible under the pretext that her DACA has lapsed, and hence she has no protection from deportation. Does she have any right to a trial instead of expedited removal? After all, how can a minor waive her rights?
The courts are clear that any waiver of rights by a citizen or non-citizen must be voluntary. See Nose v. U.S. Att’y Gen., 993 F.2d 75, 78-79 (5th Cir. 1993); Bayo v. Chertoff, 535 F.3d 749 (7th Cir. 2008).
In Galuzzo v. Holder the Second Circuit Court cited Johnson v. Zerbst, 304 U.S. 458, 464, stating with emphasis that, “We indulge every reasonable presumption against waiver of fundamental constitutional rights.” Galuzzo, an Italian national, argued that he had not waived his right to a pre-removal hearing just because he entered on a visa-waiver program and moreover, the government failed to produce a signed waiver from him.
The court ruled that absent a signed waiver, Galuzzo had a due process right to a pre-removal hearing. However, the court did not provide relief to Galuzzo and remanded the case to the Department of Homeland Security (DHS) to determine whether Galuzzo was prejudiced by a denial of his due process right to a pre-removal hearing.
Additionally, in Mokarram v. U.S. Atty. Gen., 316 F. App’x 949 (11th Cir. 2009), the Eleventh Circuit ruled that an immigrant’s due process rights were violated when he was removed without a hearing under the visa waiver program and that this warranted remand to permit administrative determination as to whether he was substantially prejudiced against by such violation.
The hurdle is whether the non-citizen was substantially prejudiced against by being denied a right to a pre-removal hearing. If a non-citizen has claims such as asylum or cancellation of removal, then she is more likely to be substantially prejudiced against. If there is pending legislation in her favor or she can adjust her status within the next few years through employment or family-based immigration, she can also make the argument that court proceedings would give her the time necessary for adjustment of status, a much better scenario than expedited removal in violation of due process to a country that she neither knows nor remembers.
While the legal system has many drawbacks, advocates should ferociously fight any assertion that their clients have given up basic due process rights to a pre-removal hearing in immigration court. As the case law suggests, it may be unconstitutional to deny someone those rights, especially if they were purportedly waived by an individual as a minor.
Undocumented youth and our parents have taken many risks and shown immense political courage over the past decade to come out of the shadows, and organized to protect themselves and their communities. This is not the time to tell immigrants to go back into the closet, but to join forces and show the Trump Administration that the risk immigrants took was not in vain. That’s what Emma Goldman, Marcus Garvey, Tam Tran and other change-makers targeted by pretextual deportations would have wanted from us.