Court rescinds ruling on deportation cases

A federal appeals court in San Francisco has withdrawn its ruling that said immigrants who are caught soon after entering the country illegally have no right to a lawyer in “expedited removal” proceedings, which are used to deport many thousands each year and are likely to be expanded under President Trump.

A panel of the Ninth U.S. Circuit Court of Appeals had ruled 2-1 in February that denying legal representation at the brief hearings did not violate immigrants’ rights. The majority, led by Judge Jay Bybee, said the proceedings were straightforward, with little “risk of error,” and it was “unclear what added value counsel would provide.”

But on Tuesday, the panel unanimously withdrew the ruling, leaving the issue to be addressed in a future case. Instead, the court issued a narrower ruling upholding the deportation of one person and saying a lawyer would have made no difference in that case.

Most immigrants held for deportation have the right to a hearing before an immigration judge, and to be represented by a lawyer if they have one, although not at government expense.

Under a 1996 law, however, migrants who were recently caught on the U.S. side of the border are required to appear in brief “expedited removal” proceedings before a Customs and Border Protection officer, who can order deportation of anyone who lacks proper papers. That law does not apply to immigrants who claim political persecution in their homeland, and are referred to an asylum officer.

More than 192,000 expedited removals were carried out in 2013, according to government data. In 2004, President George W. Bush’s administration limited those proceedings to immigrants caught less than 100 miles from the border within 14 days of their entry, a limit maintained under President Barack Obama.

But the 1996 law allows the government to apply the proceedings to unauthorized immigrants caught anywhere in the United States in the previous two years. Trump’s first Homeland Security secretary, John Kelly, was considering expanding application of the law to those maximum levels but did not act on it before he was named White House chief of staff last month. Trump has not yet appointed Kelly’s successor at Homeland Security.

The court case involved Rufino Peralta-Sanchez, who entered the U.S. from Mexico in 1979, at age 20. He acquired legal status in 1986 and has three U.S. citizen children, but he was deported in 1999 after serving prison time for felony drunken driving.

Peralta has since returned to the U.S. several times and served more prison time for illegal re-entry. After being deported by expedited removal in 2012, he returned within a few days and was caught, convicted and sentenced to 31⁄2 years in prison. Represented by a lawyer in challenging his conviction, Peralta argued that it was invalid because he had no right to an attorney at the immigration hearing, but the appeals court disagreed.

The ruling was disappointing for Peralta, who has finished his sentence and is back in Mexico, but the court was right to withdraw its earlier decision, said his lawyer, Kara Hartzler, a federal public defender in San Diego.

She said legal groups have reported that hearing officers have ignored evidence that immigrants may be eligible for asylum, demonstrating the need “to have at least the right to hire your own attorney to come in and hold people accountable.”