Tag Archive for: expedited removal

David Isaacson

“The Process By Which Removability Will Be Determined”: How the Recent District Court Decision Ordering the Reinstatement of MPP Contradicts Itself

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On Friday, August 13, U.S. District Judge Matthew J. Kacsmaryk of the U.S. District Court for the Northern District of Texas issued an Opinion and Order ruling in favor of the states of Texas and Missouri in a lawsuit that they had brought against the Biden Administration, seeking to force the Administration to reinstate the so-called “Migrant Protection Protocols” (MPP) created by the Trump Administration.  Human Rights First, among others, had previously observed that MPP was more aptly described as Migrant Persecution Protocols; I will use only the initials from this point on, since they can apply either way.

The gist of MPP was the return of asylum applicants to Mexico, pursuant to 8 U.S.C. § 1225(b)(2)(C), while their applications were pending. As the American Immigration Council explained, many applicants were placed in grave danger in Mexico, and many were unable to return to the United States for their hearings at the appointed time. Upon taking office, the Biden Administration suspended new enrollments into the program on January 20, 2021, and terminated the program on June 1. Texas and Missouri sued to overturn that decision.

The Opinion and Order, the effect of which was stayed for seven days to allow an emergency appeal, held that the termination of MPP violated the Administrative Procedure Act and 8 U.S.C. § 1225. Judge Kacsmaryk therefore vacated the June 1 memorandum terminating MPP, and ordered the government

to enforce and implement MPP in good faith until such a time as it has been lawfully rescinded in compliance with the APA and until such a time as the federal government has sufficient detention capacity to detain all aliens subject to mandatory detention under Section 1255 without releasing any aliens because of a lack of detention resources.

Opinion and Order at p. 52, ¶ 3.

There are a great many problems with the reasoning supporting the Opinion and Order, which I am sure will be elucidated in the coming days by others. Rather than seeking to give a comprehensive account of everything wrong with the Opinion and Order, however, I want to focus here on one particular issue: assuming that it is meant to have significant practical effect, the Opinion and Order is internally contradictory. While it is not completely clear what exactly the government is being ordered to do, the only way for the answer not to be, “almost nothing”, is for various statements in the Opinion and Order to be incorrect.

To see the problem, it is necessary to look at the text and structure of 8 U.S.C. § 1225, one of the two statutes that Judge Kacsmaryk held the government to be violating by terminating MPP.  In particular, the relevant section is 8 U.S.C. § 1225(b), which divides applicants for admission into two groups, those processed under 8 U.S.C. § 1225(b)(1) and those processed under 8 U.S.C. § 1225(b)(2):

(b) Inspection of applicants for admission

(1) Inspection of aliens arriving in the United States and certain other aliens who have not been admitted or paroled

(A) Screening

(i) In general

If an immigration officer determines that an alien (other than an alien described in subparagraph (F)) who is arriving in the United States or is described in clause (iii) is inadmissible under section 1182(a)(6)(C) or 1182(a)(7) of this title, the officer shall order the alien removed from the United States without further hearing or review unless the alien indicates either an intention to apply for asylum under section 1158 of this title or a fear of persecution.

(ii) Claims for asylum

If an immigration officer determines that an alien (other than an alien described in subparagraph (F)) who is arriving in the United States or is described in clause (iii) is inadmissible under section 1182(a)(6)(C) or 1182(a)(7) of this title and the alien indicates either an intention to apply for asylum under section 1158 of this title or a fear of persecution, the officer shall refer the alien for an interview by an asylum officer under subparagraph (B).

(iii) Application to certain other aliens

(I) In general

The Attorney General may apply clauses (i) and (ii) of this subparagraph to any or all aliens described in subclause (II) as designated by the Attorney General. Such designation shall be in the sole and unreviewable discretion of the Attorney General and may be modified at any time.

(II) Aliens described

An alien described in this clause is an alien who is not described in subparagraph (F), who has not been admitted or paroled into the United States, and who has not affirmatively shown, to the satisfaction of an immigration officer, that the alien has been physically present in the United States continuously for the 2-year period immediately prior to the date of the determination of inadmissibility under this subparagraph.

(B) Asylum interviews

(i) Conduct by asylum officers

An asylum officer shall conduct interviews of aliens referred under subparagraph (A)(ii), either at a port of entry or at such other place designated by the Attorney General.

(ii) Referral of certain aliens

If the officer determines at the time of the interview that an alien has a credible fear of persecution (within the meaning of clause (v)), the alien shall be detained for further consideration of the application for asylum.

(iii) Removal without further review if no credible fear of persecution

(I) In general

Subject to subclause (III), if the officer determines that an alien does not have a credible fear of persecution, the officer shall order the alien removed from the United States without further hearing or review.

(II) Record of determination

The officer shall prepare a written record of a determination under subclause (I). Such record shall include a summary of the material facts as stated by the applicant, such additional facts (if any) relied upon by the officer, and the officer’s analysis of why, in the light of such facts, the alien has not established a credible fear of persecution. A copy of the officer’s interview notes shall be attached to the written summary.

(III) Review of determination

The Attorney General shall provide by regulation and upon the alien’s request for prompt review by an immigration judge of a determination under subclause (I) that the alien does not have a credible fear of persecution. Such review shall include an opportunity for the alien to be heard and questioned by the immigration judge, either in person or by telephonic or video connection. Review shall be concluded as expeditiously as possible, to the maximum extent practicable within 24 hours, but in no case later than 7 days after the date of the determination under subclause (I).

(IV) Mandatory detention

Any alien subject to the procedures under this clause shall be detained pending a final determination of credible fear of persecution and, if found not to have such a fear, until removed.

(iv) Information about interviews

The Attorney General shall provide information concerning the asylum interview described in this subparagraph to aliens who may be eligible. An alien who is eligible for such interview may consult with a person or persons of the alien’s choosing prior to the interview or any review thereof, according to regulations prescribed by the Attorney General. Such consultation shall be at no expense to the Government and shall not unreasonably delay the process.

(v) “Credible fear of persecution” defined

For purposes of this subparagraph, the term “credible fear of persecution” means that there is a significant possibility, taking into account the credibility of the statements made by the alien in support of the alien’s claim and such other facts as are known to the officer, that the alien could establish eligibility for asylum under section 1158 of this title.

(C) Limitation on administrative review

Except as provided in subparagraph (B)(iii)(III), a removal order entered in accordance with subparagraph (A)(i) or (B)(iii)(I) is not subject to administrative appeal, except that the Attorney General shall provide by regulation for prompt review of such an order under subparagraph (A)(i) against an alien who claims under oath, or as permitted under penalty of perjury under section 1746 of title 28, after having been warned of the penalties for falsely making such claim under such conditions, to have been lawfully admitted for permanent residence, to have been admitted as a refugee under section 1157 of this title, or to have been granted asylum under section 1158 of this title.

(D) Limit on collateral attacks

In any action brought against an alien under section 1325(a) of this title or section 1326 of this title, the court shall not have jurisdiction to hear any claim attacking the validity of an order of removal entered under subparagraph (A)(i) or (B)(iii).

(E) “Asylum officer” defined

As used in this paragraph, the term “asylum officer” means an immigration officer who-

(i) has had professional training in country conditions, asylum law, and interview techniques comparable to that provided to full-time adjudicators of applications under section 1158 of this title, and

(ii) is supervised by an officer who meets the condition described in clause (i) and has had substantial experience adjudicating asylum applications.

(F) Exception

Subparagraph (A) shall not apply to an alien who is a native or citizen of a country in the Western Hemisphere with whose government the United States does not have full diplomatic relations and who arrives by aircraft at a port of entry.

(G) Commonwealth of the Northern Mariana Islands

Nothing in this subsection shall be construed to authorize or require any person described in section 1158(e) of this title to be permitted to apply for asylum under section 1158 of this title at any time before January 1, 2014.

(2) Inspection of other aliens

(A) In general

Subject to subparagraphs (B) and (C), in the case of an alien who is an applicant for admission, if the examining immigration officer determines that an alien seeking admission is not clearly and beyond a doubt entitled to be admitted, the alien shall be detained for a proceeding under section 1229a of this title.

(B) Exception

Subparagraph (A) shall not apply to an alien-

(i) who is a crewman,

(ii) to whom paragraph (1) applies, or

(iii) who is a stowaway.

(C) Treatment of aliens arriving from contiguous territory

In the case of an alien described in subparagraph (A) who is arriving on land (whether or not at a designated port of arrival) from a foreign territory contiguous to the United States, the Attorney General may return the alien to that territory pending a proceeding under section 1229a of this title.

8 U.S.C. § 1225(b).

The process described in 8 U.S.C. § 1225(b)(1), applicable to applicants for admission who are inadmissible under section 1182(a)(6)(C) or 1182(a)(7), is known as expedited removal. Such applicants for admission are given the opportunity to establish that they have a credible fear of persecution, but are otherwise removed without proceedings before an immigration judge.  Applicants for admission under 8 U.S.C. § 1225(b)(2), on the other hand, are, with limited exceptions for crewmen and stowaways, to be placed into removal proceedings before an immigration judge under 8 U.S.C. § 1229a, otherwise known as INA § 240.

The BIA held in Matter of E-R-M- & L-R-M-, 25 I&N Dec. 520 (BIA 2011),  that DHS has prosecutorial discretion to place people into removal proceedings under INA § 240 even if they could also be placed in expedited removal proceedings under 8 U.S.C. § 1225(b)(1). For roughly a decade, therefore, and well before MPP was invented, the decision of whether to place an applicant for admission into expedited removal proceedings has been one for DHS to make.

The authority for MPP, as noted above, is 8 U.S.C. § 1225(b)(2)(C). This authority applies only to those who otherwise fall under 8 U.S.C. § 1225(b)(2). It does not apply to anyone subjected to expedited removal under 8 U.S.C. § 1225(b)(1). This is why all those placed in MPP were issued Notices to Appear and put into removal proceedings under INA § 240, otherwise known as 8 U.S.C. § 1229a: such proceedings were necessary in order for them to fall under 8 U.S.C. § 1225(b)(2).  There has been dispute over whether DHS can, under the statute, permissibly treat asylum applicants in this way, but there does not appear to be any dispute that if asylum applicants can be returned to Mexico under 8 U.S.C. § 1225(b)(2)(C), it must be because they have been placed in INA § 240 removal proceedings pursuant to 8 U.S.C. § 1225(b)(2).  (Under current regulations, those applicants who establish credible fear during expedited removal proceedings under 8 U.S.C. § 1225(b)(1) are also ultimately placed into INA § 240 removal proceedings, but the Administration that designed MPP did not think this an inevitable feature of the statutory structure, instead attempting to promulgate a rule that would have placed such applicants in asylum-only proceedings.)

The question, then, is what, if anything, Judge Kacsmaryk’s Opinion and Order has to say about the initial decision whether to place a particular applicant for admission into expedited removal proceedings, under 8 U.S.C. § 1225(b)(1), or directly into 8 U.S.C. § 1229a removal proceedings, under 8 U.S.C. § 1225(b)(2).  Logically, there are two possibilities. Either the Opinion and Order is meant to affect that decision, requiring it to be made “in good faith” under the auspices of the MPP program that the Opinion and Order sought to preserve, or it is not meant to affect that decision at all.

Taking the latter possibility first, if the Opinion and Order is not meant to affect the decision whether to place an applicant for admission into expedited removal proceedings under 8 U.S.C. § 1225(b)(1), then it would seem to have very little practical effect. If the government is just as free to place anyone into expedited removal proceedings under 8 U.S.C. § 1225(b)(1) as it was before the Opinion and Order was issued, then the Opinion and Order will only apply to those applicants whom the government independently decides to place straight into § 1229a removal proceedings under 8 U.S.C. § 1225(b)(2).  Only those people would be properly subject to 8 U.S.C. § 1225(b)(2)(C), the underlying authority for the MPP.  But if the government is not constrained by the Opinion and Order in making the decision whether to follow the § 1225(b)(1) track or the § 1225(b)(2) track, then there may be few people processed under § 1225(b)(2) at all. Perhaps the only applicants who will be so processed are those who cannot be subjected to expedited removal proceedings, such as those who are not inadmissible under 8 U.S.C. § 1182(a)(6)(C) (which covers fraud and false claims to U.S. citizenship), or 8 U.S.C. § 1182(a)(7) (which covers those without proper documents), but are thought to be inadmissible on some other basis—say, Lawful Permanent Residents with certain criminal convictions thought to render them inadmissible under 8 U.S.C. § 1182(a)(2). The effect of the Opinion and Order might then be largely academic, although still problematic in a limited number of cases.

One would think this probably was not what Judge Kacsmaryk had in mind. If so, however, then he must have meant for the Opinion and Order to have some impact on the decision whether or not to place particular applicants for admission into § 1225(b)(1) expedited removal proceedings, as opposed to processing them under § 1225(b)(2).  The problem is that this would contradict several statements made in the Opinion and Order, statements which provided critical underpinnings for Judge Kacsmaryk’s determination that he had the authority to issue the Opinion and Order in the first place.

First, in addressing why the jurisdictional bar of 8 U.S.C. § 1252(b)(9) purportedly does not preclude the exercise of jurisdiction over this suit, the Opinion and Order says:

42. Section 1252(b)(9) states: “Judicial review of all questions of law and fact, including interpretation and application of constitutional and statutory provisions, arising from any action taken or proceeding brought to remove an alien from the United States under this subchapter shall be available only in judicial review of a final order under this Section.” (emphasis added). This Section functions as a limit on where aliens can seek judicial review of their immigration proceedings.

43. But the Supreme Court has recently stated: “As we have said before, § 1252(b)(9) does not present a jurisdictional bar where those bringing suit are not asking for review of an order of removal, the decision to seek removal, or the process by which removability will be determined.” [DHS v. ] Regents [of the University of California], 140 S. Ct. [1891,] 1907 [(2019)] (quoting Jennings v. Rodriguez, 138 S. Ct. 830, 841, 875–76 (2018) (plurality opinion) (internal marks omitted)). “And it is certainly not a bar where, as here, the parties are not challenging any removal proceedings.” Id.

Opinion and Order at 29.

If the Opinion and Order means to exert control over the determination whether applicants for admission should be placed in expedited removal proceedings under 8 U.S.C. § 1225(b)(1) or processed under 8 U.S.C. § 1225(b)(2) so that they can be subjected to MPP, however, then it makes no sense to say that “those bringing suit are not asking for review of . . . the decision to seek removal, or the process by which removability will be determined.” They very much are. The states bringing suit, on this interpretation, are asking for review of the decision to place certain applicants for admission in expedited removal proceedings, where removability will be determined under 8 U.S.C. § 1225(b)(1) and they cannot be returned to Mexico while their cases are pending, as opposed to placing those applicants in immediate § 1229a removal proceedings under 8 U.S.C. § 1225(b)(2), so that the provisions of 8 U.S.C. § 1225(b)(2)(C) can apply and the applicants can be returned to Mexico under MPP. In this respect, the case is not like the challenge to the recission of Deferred Action for Childhood Arrivals (DACA) in Regents, which did not implicate a decision to seek removal or the process by which removability would be determined, given that the DACA recission did not involve commencement of removal proceedings against anyone. A broad interpretation of the Opinion and Order’s mandate that MPP be implemented would necessarily involve the commencement of a specific type of removal proceedings, under § 1225(b)(2) and § 1229a, as opposed to the commencement of proceedings under § 1225(b)(1).

This is not the only such contradiction in the Opinion and Order.  Later, addressing why the decision to terminate MPP is not “committed to agency discretion” and thus unreviewable, the Opinion and Order states:

Moreover, the MPP program is not about enforcement proceedings at all. Any alien eligible for MPP has already been placed into enforcement proceedings under Section 1229a. The only question MPP answers is where the alien will be while the federal government pursues removal — in the United States or in Mexico.

Opinion and Order at 32.  That is true if, and only if, the Opinion and Order does not mean to have any impact on the initial decision whether to place particular applicants for admission into expedited removal proceedings under 8 U.S.C. § 1225(b)(1), as opposed to regular removal proceedings under 8 U.S.C. § 1229a by way of 8 U.S.C. § 1225(b)(2). But in that case, as discussed above, the Opinion and Order would not accomplish what it seems intended to accomplish.

As a crowning touch, the Opinion and Order says near the end: “Nothing in this injunction requires DHS to take any immigration or removal action nor withhold its statutory discretion towards any individual that it would not otherwise take.” Opinion and Order at 53. Again, it is not entirely clear what this means. But if DHS is truly not required to “take any immigration or removal action . . . that it would not otherwise take”, then it cannot be compelled to operate the MPP, because a necessary predicate of the MPP is the action of placing applicants for admission into immediate § 1229a removal proceedings under 8 U.S.C. § 1225(b)(2) rather than placing them into expedited removal under § 1225(b)(1).

At bottom, the problem here may be that like the MPP itself, the Opinion and Order makes background assumptions that are not supportable when examined more closely. Like the MPP, the Opinion and Order seems superficially sensible when examined from a certain perspective.  But like the MPP, the seeming logic of the Opinion and Order does not withstand closer scrutiny.

David Isaacson

Challenges to Expedited Removal Orders Against Returning Nonimmigrants: How Recent Case Law Supports Habeas Petitions Even After Removal

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In 2011, I wrote an article on our firm’s website about how then-recent case law could provide an opportunity for some returning nonimmigrants to challenge, in federal court, the government’s efforts to subject them to expedited removal.  At the time, it seemed as though such a challenge might require a habeas corpus petition to be filed in federal court while the returning nonimmigrant was still detained at the airport by Customs and Border Protection (CBP).  A recent Second Circuit decision in a different context, however, suggests that this is not so.  Rather, even returning nonimmigrants who are only able to contact a lawyer after they have already been removed from the United States may have recourse in federal court.

As I explained in my 2011 post, Congress has sought to make expedited removal orders, which can be issued by CBP officers at the airport and carry with them a five-year bar on returning to the United States without advance permission, essentially unreviewable in court for most people who are not U.S. citizens, Lawful Permanent Residents, or refugees or asylees. This creates a significant risk of arbitrary and potentially unreviewable enforcement of immigration law.  Problems can arise, for example, when such enforcement is based on an arguably erroneous position taken by a CBP officer regarding the permissible scope of H-1B employment, as in the case of some expedited removal orders issued at Newark Airport that were discussed by Cyrus D. Mehta in January and February 2010.  Absent judicial review, CBP officers and supervisors may have the last word on such questions, whether legally correct or not.

However, the Supreme Court’s 2008 decision in Boumediene v. Bush, 553 U.S. 723 (2008), made clear that under the Suspension Clause of the U.S. Constitution, Congress cannot (unless exercising its authority to suspend the writ of habeas corpus in cases of rebellion or invasion) simply prevent people detained by the United States, even alleged enemy combatants at Guantanamo Bay, from seeking judicial review of their detention through a petition for a writ of habeas corpus.  Thus, even those subjected to expedited removal may be able to turn to habeas corpus to vindicate whatever other rights they have under statute or the Constitution.  The Court of Appeals for the Ninth Circuit recently recognized in its March 2019 decision in Thuraisiggiam v. Department of Homeland Security, for example, that habeas is an available mechanism for asylum-seekers to assert their rights to proper proceedings to determine whether they have a credible fear of persecution.  (The Court of Appeals for the Third Circuit has, in a decision I criticized in a prior blog post, limited the ability to use habeas as a vehicle to assert rights under immigration law in the context of recent entrants with no prior ties to the United States, but even the Third Circuit, in Osorio-Martinez v. Attorney General, recognized the habeas rights of those with somewhat greater ties to the United States, in that case juveniles with approved petitions for Special Immigrant Juvenile status.)

As I also explained in my 2011 post, previously admitted U.S. residents who are returning from a brief trip abroad would retain rights to due process of law under Landon v. Plasencia, 459 U.S. 21 (1982), and so could argue that they were entitled to greater procedural protection than expedited removal provides.  Moreover, residents in this sense need not be restricted to Lawful Permanent Residents, that is, people with “green cards”. The Second Circuit, in its January 2011 decision in Galluzzo v. Holder, 633 F.3d 111 (2d Cir. 2011), recognized the due process rights of one who had been admitted as a visitor and overstayed the permitted period of admission, so returning resident nonimmigrants who did not overstay should be even more clearly entitled to due process rights.  While it would be difficult for certain categories of nonimmigrants, such as B-1 or B-2 visitors, who need to maintain a foreign residence, to claim returning-resident due process rights without fatally undercutting their own case for readmission, there are many types of nonimmigrants such as H-1B, L-1, E-1, E-2, and O-1 who are not required to maintain a residence abroad which they lack intention to abandon.  If returning to a U.S. residence from a brief trip abroad, such nonimmigrants would appear to have a strong argument that the abbreviated and potentially error-prone procedures of expedited removal did not afford them sufficient due process.

The problem, as a practical matter, was that the legally ideal time to file such a habeas petition seemed to be while one was detained at the airport, and that presents obvious practical difficulties.  As I explained in 2011:

The ideal time to file a habeas petition under the theory outlined in this article would be while the petitioner was detained by CBP pending execution of the expedited removal order.  Whether such a challenge might be possible following execution of an expedited removal order is a subject for further analysis, but it would at least be substantially more difficult.  Classically, a constitutionally protected habeas petition would as a general matter require the petitioner to be in custody at the time the petition was filed, and a petitioner who has already been removed is not in custody, at least in the simplest and most straightforward sense of that term.

CBP often allows those subject to expedited removal proceedings to contact a friend while they are detained, but discourages or prevents them from contacting attorneys, presumably on the basis that an applicant for admission lacks the right to legal representation during initial inspection.  (The chain of logic between the lack of right to representation and a prohibition on speaking to an attorney strikes this author as a bit strained, but that is an issue for another day.)  Therefore, it may be wise for any nonimmigrant who anticipates potential difficulties upon arrival to ensure that the friend or friends whom they would likely attempt to call if detained is in possession of the contact information for an appropriate immigration attorney.  If concerned that CBP might not allow any communication, or that a single attempt to call while detained by CBP might not reach anyone, a more cautious alternative would be to make a plan to check in with such a friend by phone immediately after one’s flight lands, before proceeding into the immigration inspection area and the perhaps broader area in which cellphone use is prohibited, and advise that an appropriate immigration attorney should be contacted if the arriving nonimmigrant is not heard from again within a preset amount of time.

Given how logistically complicated it would be, particularly for someone who had not expected problems, to arrange the filing of a habeas petition in the brief interval before being detained and put on a return flight, it is perhaps not surprising that no such habeas challenge to an expedited removal order by a returning resident nonimmigrant seems to have made it into court, at least so far as this author is aware.  (There have been a few unsuccessful challenges by other types of nonimmigrants not able to claim returning-resident status.)

A recent decision of the Court of Appeals for the Second Circuit, however, has shed some light on what I referred to in 2011 as a subject for further analysis, namely, whether a habeas petition could be filed after an expedited removal order had already been executed.  The issue arose indirectly in the recent appeal of Ravidath (Ravi) Ragbir, an immigrant-rights activist who brought a habeas petition to prevent his removal on the basis that ICE, in refusing to extend his previously-granted stay of removal, was retaliating against his Constitutionally protected speech critical of ICE activities. In its April 25, 2019 decision in Ragbir v. Homan, the Second Circuit allowed this claim to go forward pursuant to the Suspension Clause of the Constitution.

Because Ragbir’s First Amendment claim regarding the execution of an order of removal would otherwise have been statutorily barred under 8 U.S.C. 1252(g), the Second Circuit needed to address whether it was protected by the Suspension Clause, as in Boumediene.  The government asserted that this was not so because, among other things, Ragbir was purportedly not in custody, having been released from detention after being granted judicial stays of removal.  The Second Circuit disagreed:

If Ragbir were currently in the Government’s physical confinement or had already been deported, that Ragbir would be in custody is obvious.[29] But that he has not been deported is not for a lack of effort on the part of the Government, which detained Ragbir without notice in January 2018 and sent him to Florida, where he was detained for weeks in anticipation of deporting him. Much like in Hensley [v. Mun. Court, San Jose Milpitas Judicial Dist., 411 U.S. 345, 351 (1973)], that process was stopped only because Ragbir was released by a writ of habeas corpus issued by the district court in January 2018 (after which the Government told Ragbir to report again on February 10, 2018). Also like in Hensley, Ragbir must continue to report for ICE check-ins, and he remains in this country primarily due to judicial stays of removal, including the one entered by this Court. Moreover, the Government opposed a stay of removal in the district court pending this appeal, and at oral argument, the Government could not represent to this Court that—absent a stay entered by this Court and the stay previously entered in the District of New Jersey—ICE would not deport Ragbir pending resolution of this appeal.

Thus, that Ragbir faces imminent deportation, which necessarily involves a period of detention—and that he must comply, absent judicial intervention, with the Government’s orders “at any time and without a moment’s notice,” Hensley, 411 U.S. at 351—is not in question. That effects a present, substantial curtailment of Ragbir’s liberty. See id.

The Second Circuit expanded on the first sentence of the above in footnote 29 to its decision:

As to the custodial status of a deported individual, the Supreme Court “has repeatedly held” that the writ of habeas corpus is available to aliens excluded from the United States. Cunningham, 371 U.S. at 239-40 (citing Brownell v. Tom We Shung, 352 U.S. 180, 183 (1956); Shaughnessy v. United States ex rel. Mezei, 345 U.S. 206 (1953); United States ex rel. Knauff v. Shaughnessy, 338 U.S. 537 (1950); United States v. Jung Ah Lung, 124 U.S. 621, 626 (1888)). Although “in those cases each alien was free to go anywhere else in the world,” “[h]is movements . . . [we]re restrained by authority of the United States, and he may by habeas corpus test the validity of his exclusion.” Id. (quoting Shaughnessy v. United States ex rel. Mezei, 345 U.S. 206, 213 (1953)) (internal quotation marks omitted).

This discussion of the availability of habeas to a deported individual was a key portion of the Second Circuit’s reasoning, not merely dicta.  It was necessary to show that Ragbir would have access to habeas at what one might call both ends of the process, if he were in physical custody prior to deportation or if he had been already deported, in order to conclude that as a logical matter he ought not lose such access to habeas simply because the process had been, by court order, suspended in the middle.

Under the Second Circuit’s decision in Ragbir, then, individuals subjected to expedited-removal orders may pursue habeas petitions even following their removal.  Those returning nonimmigrants who arguably have due process rights, under Plasencia and Galluzzo, to a less summary process than expedited removal, should thus be able to vindicate those rights even if they are unable to contact an attorney until after they have already been removed.  As a practical matter, it may make sense to first reach out to CBP in an effort to get the expedited removal order set aside administratively, but the availability of litigation even after removal is an important development.  If CBP declines to administratively set aside an erroneous expedited removal order, that need not be the end of the story.  Rather, a long-term United States resident nonimmigrant who was refused permission to return to his or her home can seek redress in court.

David Isaacson

Fewer Rights in Pennsylvania than Guantanamo: Some Reactions to the Third Circuit’s Decision in Castro v. Dep’t of Homeland Security

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On August 29, 2016, the Court of Appeals for the Third Circuit issued its decision in Castro v. Dept. of Homeland Security, a consolidated set of habeas corpus petitions brought by asylum-seekers subject to expedited removal orders and detained within the Eastern District of Pennsylvania (likely at the Berks County Residential Center).  The Third Circuit held that the petitioners, who had been detained by U.S. Customs and Border Protection shortly after crossing the border into the United States, did not have the constitutional right to challenge their detentions in federal court other than in a very limited way under 8 U.S.C. §1252(e).  Unlike the Guantanamo Bay detainees whose habeas petitions were found by the Supreme Court to be constitutionally protected in Boumediene v. Bush, 553 U.S. 723 (2008), the Third Circuit ruled, recent unlawful entrants such as the Castro petitioners were not protected by the Suspension Clause of the U.S. Constitution, and had been stripped by Congress of their right to seek judicial review except under extremely limited circumstances not applicable here.  Given that the petitioners had no claim to be U.S. citizens or to have already been granted a lawful immigration status, they could only seek review of whether they were the persons referred to in pieces of paper signed by immigration officers that purported to be expedited removal orders.  Since they did not dispute that, the case was at an end, and the Third Circuit affirmed the district court’s order dismissing the habeas petitions for lack of subject-matter jurisdiction.

  Professor Steve Vladeck of the University of Texas School of Law (who I note, in the interest of full disclosure, was a law-school classmate of the author of this blog post) has described the Third Circuit’s opinion as “breathtaking”.  Professor Vladeck writes that it was “simply nuts” for the Third Circuit to conclude that under Boumediene “non-citizens physically present within the United States are less entitled to Suspension Clause protections than enemy belligerents captured on foreign battlefields and detained outside the territorial United States.”  This author is inclined to agree with that sentiment.  Boumediene arose because the Bush Administration had tried to keep detainees in a sort of Constitution-free zone in Guantanamo Bay, Cuba, purportedly outside the jurisdiction of U.S. courts.  (Fortunately, the Supreme Court did not let the Bush Administration “switch the Constitution . . . off” in this way, Boumediene, 553 U.S. at 765, and the ultimate outcome of Boumediene is a testament to the crucial importance of habeas review: on remand, petitioner Lakhdar Boumediene was found by the District Court to be detained without sufficient basis, was released, and as of 2012 was living in France.)  Pennsylvania is a far cry from Guantanamo Bay, and it seems very peculiar to suggest that non-citizens detained in Pennsylvania, clearly within the jurisdiction of the United States, could have a lesser constitutional right to habeas corpus than non-citizens detained in Guantanamo.

One might wonder whether the Third Circuit could have reached the same result by acknowledging the applicability of the Suspension Clause, but holding the petitioners in Castro to lack relevant constitutional rights which they could enforce through a habeas petition even if the courts had jurisdiction over such a petition.  Indeed, the government appears to have made such an argument in briefing quoted by the Third Circuit: “because Petitioners ‘have no underlying procedural due process rights to vindicate in habeas,’ Respondents’ Br. 49, the government argues that ‘the scope of habeas review is [] irrelevant.’”  Castro, slip op. at 65.   However, there would be a problem with this approach.  While applicants for admission to the United States may have limited due process rights under current Supreme Court case law, they do have some due process rights, and it appears to have been those rights which the Castro petitioners were seeking to assert.

The Supreme Court’s decision in U.S. ex rel. Knauff v. Shaughnessy, 338 U.S. 537 (1950), cited by the Third Circuit to support its decision in Castro, held that “Whatever the procedure authorized by Congress is, it is due process as far as an alien denied entry is concerned.”  Knauff, 338 U.S. at 544.  Assuming for the sake of argument that the petitioners in Castro qualify for constitutional purposes as aliens denied entry into the United States, they would thus still be entitled, as a matter of due process, to “the procedure authorized by Congress”.  It appears that the Castro petitioners were attempting to assert that they did not receive the benefit of this Congressionally authorized procedure.

The Third Circuit’s decision in Castro describes two claims which were said to be “uniform across all Petitioners” in the case:

first, they claim that the asylum officers conducting the credible fear interviews failed to “prepare a written record” of their negative credible fear determinations that included the officers’ “analysis of why .. . the alien has not established a credible fear of persecution,” 8 U.S.C. § 1225(b)(1)(B)(iii)(II); and second, they claim that the officers and the IJs applied a higher standard for evaluating the credibility of their fear of persecution than is called for in the statute.

Castro, slip op. at 20 n.8.  These claims, grounded in the governing statute, assert that the petitioners did not receive “the procedure authorized by Congress,” Knauff, 338 U.S. at 544.  That statutory procedure includes a written record of a credible fear review, and determination according to a specified legal standard.  It is alleged by the Castro petitioners that, contrary to the statutory procedure, no such record was prepared and the specified standard was not used.  Thus, these claims would appear to be valid even under the limited degree of due process that applies under Knauff to “an alien denied entry”—even assuming for the sake of argument that this limited due process is appropriate to apply to an alien who has in fact effected an entry, albeit illegally.

Moreover, the Supreme Court in Boumediene, as acknowledged by the Third Circuit, had held that at a bare minimum any “constitutionally adequate habeas corpus proceeding” must “entitle[] the prisoner to a meaningful opportunity to demonstrate that he is being held pursuant to ‘the erroneous application or interpretation’ of relevant law,” Boumediene, 553 U.S. at 773 (quoting INS v. St. Cyr, 533 U.S.289, 302 (2001)); Castro, slip op. at 48-49.  Thus, the constitutional habeas proceeding protected by Boumediene should, if available to the Castro petitioners, have entitled them to challenge whether their cases had been handled in accordance with 8 U.S.C. §1225(b)(1), as they were attempting to do.

To deny the Castro petitioners even the right to judicial oversight of whether they received “the procedure authorized by Congress”, therefore, the Third Circuit really did have to find them to lack Suspension Clause rights.  It was not merely a question of alternate analytic routes to the same result.  The outcome of Castro can only be justified on the basis that an applicant for asylum detained shortly after entry and held within the continental United States has less of a constitutional right to habeas corpus than an accused terrorist detained at Guantanamo Bay, and so cannot even enforce in court any constitutional or statutory rights which she may have.  This is a highly dubious proposition.

The Castro opinion’s rejection of jurisdiction over essentially statutory claims by the petitioners is particularly problematic because 8 U.S.C. §1252(e) itself can be read to permit such claims, implying that they should be allowed under the doctrine of constitutional doubt without the need to strike down the restrictions on habeas as unconstitutional.  Even the limited habeas review which §1252(e)(2) purports to allow with respect to “any determination made under section 1225(b)(1)” includes “determinations of . . . whether the petitioner was removed under such section.”  8 U.S.C. §1252(e)(2)(B).  The Third Circuit asserted in Castro that this means “review should only be for whether an immigration officer issued that piece of paper and whether the Petitioner is the same person referred to in that order.”  Castro, slip op. at 28 (quoting M.S.P.C. v. U.S. Customs & Border Prot., 60 F. Supp. 3d 1156, 1163-64 (D.N.M. 2014), vacated as moot, No. 14-769, 2015 WL 7454248 (D.N.M. Sept. 23, 2015)).  But just because an immigration officer has signed a piece of paper purporting to be an expedited removal order under section 1225(b)(1) does not necessarily mean that the order has been issued “under such section”.

Article VI of the U.S. Constitution provides that “treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land” along with statutes.  No one would understand that to mean that a purported treaty, signed by the President but not ratified by the Senate, was the supreme law of the land.  This is because such a purported treaty would not truly have been made “under the authority of the United States” given the President’s failure to comply with governing procedures.  Similarly here, one could argue that a purported expedited removal order issued without compliance with the statutory requirements of a written record, a proper standard, and so on, is not actually issued “under” section 1225(b)(1), because it violates 8 U.S.C. §1225(b)(1)(B)(iii)(II) and other relevant statutory provisions.  At the least, this argument should have been enough for the Castro petitioners to invoke the doctrine of constitutional doubt.  The Third Circuit, however, held that in asserting constitutional doubt regarding the meaning of §1252(e)(5), the petitioners in Castro “were attempting to create ambiguity where none exists.”  Castro, slip op. at 26-27.

The courts may not be able, under the statute, to review “whether the alien is actually inadmissible or entitled to any relief from removal,” 8 U.S.C. §1252(e)(5), as the Third Circuit pointed out.  Castro, slip op. at 26.  However, “[i]n determining whether an alien has been ordered removed under section 1225(b)(1),” the courts are authorized by the statute to review whether “such an order in fact was issued and whether it relates to the petitioner.”  8 U.S.C. §1252(e)(5).  The reference to “such an order” relates back to another reference to removal “under section 1225(b)(1)”—and, once again, 8 U.S.C. § 1225(b)(1)(B)(iii)(II), relating to the necessity of a written record, is just as much a part of 1225(b)(1) as any other part, so that it is at least unclear whether an order issued in violation of 8 U.S.C. § 1225(b)(1)(B)(iii)(II) is issued “under section 1225(b)(1)”.  In its assertion that there is no relevant ambiguity in the statute, as in its constitutional analysis, the Castro panel opinion strikes this author as unpersuasive.

Depressing though the decision in Castro may be, however, it is important to note that even the Third Circuit’s decision in Castro does not foreclose all habeas corpus petitions brought to review expedited removal orders.  Beyond the restricted review that it saw as permitted by 8 U.S.C. §1252(e), the Castro opinion conceded that the statutory limitations on habeas corpus might be unconstitutional as applied to, for example, “an alien who has been living continuously for several years in the United States before being ordered removed under § 1225(b)(1).”  Castro, slip op. at 34-35 n.13.  For reasons explained by this author in a previous article, some long-term nonimmigrant residents may have the sorts of constitutional rights to which the Third Circuit referred here even if returning from a brief trip abroad, along the lines of the rights possessed by the permanent resident who was placed in exclusion proceedings after returning from a brief trip abroad in Landon v. Plasencia, 459 U.S. 21 (1982).  Thus, even under Castro, there may be scope for habeas review of an expedited removal proceeding against a long-term nonimmigrant resident.  In that sense, for some potential habeas petitioners, all is not yet lost.

Asylum applicants who are not returning residents, however, should also have rights under the Suspension Clause, no less than the detainees at Guantanamo Bay who were held to have such rights in Boumediene.  And in exercising those rights, they should have resort to the courts to ensure that they have at least received “the procedure authorized by Congress”—as it appears the petitioners in Castro did not.

The purpose of the Suspension Clause is to ensure that the government can be held to account in court when it detains someone, whether that someone is a suspected terrorist or a woman fleeing persecution with her child.  The Third Circuit panel in Castro denied the petitioners in the case that Constitutionally guaranteed ability to demonstrate that they were being held pursuant to an erroneous application or interpretation of the law.  We can hope, however, that the Third Circuit on rehearing en banc, or the Supreme Court on certiorari, may restore it to them.

David Isaacson

RESUMPTION OF DIPLOMATIC RELATIONS WITH CUBA: HOW DOES IT IMPACT U.S. IMMIGRATION LAW?

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By David A. Isaacson

Earlier this month, President Obama announced that the United States would soon be re-establishing diplomatic relations with Cuba.  The White House website indicates that the President will be “working to re-establish an embassy in Havana in the next coming months.”  U.S. immigration law currently treats natives and citizens of Cuba differently from people from other countries in a variety of respects.  This new development raises the question whether resumption of diplomatic relations with Cuba will have any impact on that different treatment of Cuban nationals.
Perhaps the best-known aspect of U.S. immigration law that provides distinctive treatment to natives and citizens of Cuba is Public Law 89-732 of 1966, generally known as the Cuban Adjustment Act (CAA).  (Its official title was “An Act to adjust the status of Cuban refugees to that of lawful permanent residents of the United States, and for other purposes.”)  Under the CAA, natives or citizens of Cuba who have been admitted or paroled into the United States, and have been physically present for a total of one year (until the Refugee Act of 1980 the requirement was two years) are eligible for adjustment of status to that of a lawful permanent resident.  Eligibility for adjustment under the CAA also extends to the spouse and child of a Cuban applicant, even if not themselves Cuban, so long as they reside with the Cuban native or citizen in the United States or qualify as abused spouses and children of a qualkifying Cuban principal under amendments to the Violence Against Women Act.
Applicants for adjustment of status under the CAA must in general be admissible, although they are not subject to the bars to adjustment of status at INA §245(c).  Also, according to the 1967 decision of the former INS in Matter of Mesa, the public-charge ground of inadmissibility which is currently at INA 212(a)(4)does not apply to adjustment under the CAA.  Adjustment under the CAA is a discretionary benefit, but USCIS has said in its Adjudicator’s Field Manual that its officers should, “in weighing the discretionary factors, keep in mind the nature of the CAA and the political situation in [Cuba].”
Unlike applicants for asylum under INA §208 or refugee status under INA §207, applicants under the CAA, which predates both of those provisions, do not need to show a well-founded fear of persecution on a protected ground or otherwise establish that they meet the definition of a refugee under INA §101(a)(42).   One recent proposed amendment to the CAA would have required applicants under the CAA to attest to their status as political refugees and face potential loss of their status if they were to return to Cuba, but current law has no such requirement.
The CAA itself does not depend on the presence or absence of U.S. diplomatic relations with Cuba.  Thus, with respect to potential applicants whom DHS chooses to admit or parole into the United States, adjustment under the CAA will remain available.  However, there is a related benefit granted to natives and citizens of Cuba under U.S. immigration law, which may determine whether they can seek adjustment under the CAA at all, and which will be affected by the resumption of diplomatic relations.
Under section 235(b)(1) of the INA, most applicants for admission to the United States are subject to an expedited removal process whereby they can face quick removal from the United States unless they establish either a credible fear of persecution or that they were previously admitted as lawful permanent residents or granted refugee status or asylum.  (This author has previously discussed how judicial review of an expedited removal order may be available for certain returning nonimmigrants.)  However, INA 235(b)(1)(F)states that these provisions “shall not apply to an alien who is a native or citizen of a country in the Western Hemisphere with whose government the United States does not have full diplomatic relations and who arrives by aircraft at a port of entry.”  This provision appears to have been enacted for the benefit of natives and citizens of Cuba, the only “country in the Western Hemisphere with whose government the United States [did] not have full diplomatic relations” when the modern expedited-removal process was enacted in 1996 by IIRIRA.  Under section 235(b)(1)(F), natives and citizens of Cuba who arrive at a U.S. airport cannot be subjected to expedited removal.
At least if one reads section 235(b)(1)(F) literally, however, resumption of diplomatic relations with Cuba will remove Cuban natives and citizens from its coverage, leaving them subject to expedited removal at airports.  Perhaps one could argue that the provision refers to a fixed set of countries with which the United States had no diplomatic relations as of the enactment of IIRIRA, but a contrary literal reading is at least possible. Since one who is expeditedly removed after failing to establish a credible fear of persecution generally will not then be paroled or admitted into the United States, greater availability of expedited removal for natives and citizens of Cuba following resumption of diplomatic relations with Cuba would indirectly reduce the availability of adjustment under the CAA.
DHS is not required to place Cuban natives or citizens into expedited removal proceedings simply because they are eligible for such treatment, however.  As the BIA clarified in Matter of E-R-M- & L-R-M-, a case involving natives and citizens of Cuba who had applied for admission at a land port of entry rather than an airport and thus were not covered by 235(b)(1)(F), DHS has prosecutorial discretion to place arriving aliens in removal proceedings under INA §240 even if they would otherwise be amenable to expedited removal.  DHS also has discretion to parole such arriving aliens under INA §212(d)(5) rather than placing them into any sort of removal proceedings.
For this reason, the resumption of diplomatic relations will not have an effect on the availability of CAA relief unless DHS wishes it to.  However, natives and citizens of Cuba who are considering arriving at a U.S. airport in order to seek parole and ultimately adjustment of status under the CAA should keep in mind that, following the resumption of diplomatic relations with Cuba, they will be at greater risk of expedited removal.
Cyrus Mehta

Obama’s Paradoxical Deportation Policies

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President Obama has been called the Deporter in Chief as he has presided over nearly 2 million deportations during his presidency – higher than that of any other President. On the other hand, President Obama has also rolled out some of the most innovative prosecutorial discretion policies, which include granting deferred action to hundreds of thousand immigrants who came to the United States when they were young.

A revealing article in the Los Angeles Times shows that the high number of deportations is largely misleading. The likelihood of an undocumented individual already in the United States who has developed ties being deported has lessened considerably under President Obama. Even people with removal orders can seek a stay of removal if they establish that they are deserving of prosecutorial discretion under the Morton June 17, 2011 Memo.  Young immigrants who arrived in the United States prior to the age of 16 and who meet other conditions can apply for deferred action, along with work authorization, under the Deferred Action for Childhood Arrivals (DACA) program.

The people who are being deported, and are part of the increased statistics, are those who recently crossed the border without inspection and are apprehended within 100 miles from the border. Under previous administrations, such people were informally bused back outside the United States in what was known as “voluntary returns.” Under the Obama administration, these people are fingerprinted and issued formal deportation orders. INA section 235(b)(1), which was enacted by the Illegal Immigration Reform and Immigrant Responsibility Act of 1996, granted authority to expeditiously remove persons at the border who are deemed inadmissible under INA sections 212(a)(6)(C) for making a material misrepresentation or 212(a)(7) for not possessing valid visa documents. On August 11, 2004, DHS promulgated a rule to expand expedited removal to persons who are present in the United States without having been admitted or paroled and who are apprehended within 100 miles from the southern border and who also cannot prove that they were physically present in the country continuously for the preceding 14 days. This rule was expanded to all borders on January 30, 2006.

This is not to suggest that the increased use of expedited removal to recent border crossers does not have devastating effects and should not be remedied through immigration reform measures, since many of these crossers are entering the United States to join family members. Still, it is the expanded use of expedited removal that has resulted in an increase of deportations, when under prior administrations, such persons were informally returned from the United States without terming them as deportations. Once a recent border crosser is expeditiously removed, a reentry into the United States also carries severe criminal penalties unlike a ‘voluntary return.” On the other hand, a person who has been in the United States for a longer period is less likely be placed in the removal proceedings, and even if this person is issued a Notice to Appear before an Immigration Judge, he or she can have a shot at requesting prosecutorial discretion under President Obama’s administration than before, which will result in either administrative closure or termination of the case. Unfortunately, the majority of people who came to the attention of the immigration enforcement authorities within the interior, resulting in deportation proceedings,  are those who got arrested for minor offenses.

As an aside and consistent with the topic of this article, there are instances when it can be more beneficial for a person to be placed in removal proceedings than not. Pursuant to INA section 240A(b), an individual who meets 10 years of physical presence, good moral character for this entire period and can demonstrate exceptional and extremely unusual hardship to qualifying relatives who are either citizens or permanent residents can obtain cancellation of removal, leading to lawful permanent resident status. The hardship standard is extremely high and needs to be substantially beyond the hardship that would ordinarily be expected to result from the alien’s deportation, as demonstrated in cases such as Matter of Monreal, 23 I&N Dec. 53 (BIA 2001); Matter of Andazola, 23 I&N Dec. 319 (BIA 2002) where cancellation was denied; and Matter of Recinas, 23 I&N  Dec. 467 (BIA 2002) where it was granted. Another advantage of being in removal proceedings is to escape the 3 year bar based on unlawful presence of more than 180 days but less than 1 year pursuant to INA section 212(a)(9)(B)(i)(I). Departing the United States under a grant of voluntary departure, which is issued prior to the alien accruing 1 year of unlawful presence, and after the commencement of proceedings, may allow this alien to reenter the United States without being subject to the 3-year bar. Finally, another tactical advantage to being placed in removal proceedings is when an application for adjustment of status is denied, and the best way to get a second chance is to have an Immigration Judge review the adjustment application de novo in proceedings. The irony is that ICE is often  reluctant to put a person under these circumstances in removal proceedings because it is does not have the resources, and is also of the view that as an enforcement agency,  it is contrary to the agency’s mission to place someone in removal so that he or she can ultimately secure an immigration benefit.  One note of caution is that those who came into the United States on a visa waiver should not consider requesting a removal proceeding as they have waived their right to a removal hearing under INA section 217(b).

President Obama used the increased deportation statistics to show that he was enforcing the law, but this has backfired among his critics. Those who favor stricter enforcement are not satisfied with the record increase in deportations by pointing to the Administration’s expanded prosecutorial discretion policies that has resulted in the deferring of thousands of deportations. Enforcement advocates in Congress use the President’s expanded prosecutorial discretion policies, while conveniently ignoring the spike in deportations, as an excuse to delay immigration reform and cooperating with the President.  At the same time, immigration advocates and allies have criticized President Obama for increasing deportations without truly bringing about genuine immigration reform. After the passage of the S. 744, the Senate’s immigration reform bill last year, there is now a stalemate where the prospects of immigration reform in the House have almost evaporated despite unanimous agreement that the immigration system is broken.

If President Obama desires to cement his legacy with respect to immigration reform, he may not be able to achieve it through this Congress. In the past, President Obama has indicated that he does not have the authority to further expand prosecutorial discretion, but this may have to change. The only way for the President to fulfill the promise he has made to so many who voted for him is to go about it on his own through administrative policy changes. The Executive branch can expand deferred action to a broader group of people, which could include family members of DACA recipients and those who have US citizen children. The prosecutorial discretion guidelines under the Morton Memo ought to be further strengthened to ensure that they are not ignored by ICE officials, as many are wont to do. The parole in place policy for relatives of military personnel can be expanded to benefit those who are on the pathway to permanent residency if they are beneficiaries of employment and family immigrant visa petitions. In an eloquent New York Times editorial entitled Yes He Can, On Immigration, the following is worth extracting:

Mr. Obama may argue that he can’t be too aggressive in halting deportations because that will make the Republicans go crazy, and there’s always hope for a legislative solution. He has often seemed like a bystander to the immigration stalemate, watching the wheels spin, giving speeches and hoping for the best.

It’s hard to know when he will finally stir himself to do something big and consequential.

The President must no longer fear doing something big and consequential on the immigration front. Some may justifiably fear that if the President ameliorates the plight of undocumented people through administrative reform measures, another President can quickly undo them; and therefore it is best for Congress to enact immigration reform. Administrative remedies are clearly no substitute for comprehensive immigration reform passed through Congress, but it would be hard for a future President to undo wise administrative reform measures that provide a fix to a broken immigration system. For example, DACA benefits have already been granted to hundreds of thousands of young immigrants who have been able to graduate from college and find jobs. It would be politically imprudent for a future President to undo DACA. Indeed, S. 744, the bipartisan reform bill that was passed by the Senate, incorporates DACA and places DACA recipients on a faster track to permanent residency. If President Obama implements bold administrative measures, it would be difficult for a future administration to undo them, and it is likely that a future Congress will have no choice but to readily adopt them into law.