DHS Bows to ACLU in Class Action Settlement; Agrees to Let Deported Aliens Return

On August 28, a federal judge approved the settlement of a class action lawsuit the American Civil Liberties Union (ACLU) filed last year against the Department of Homeland Security (DHS). The ACLU filed the lawsuit on behalf of a class of deported illegal aliens in Mexico seeking to return to the United States. (Order, Aug. 28, 2014) The class consists of those deported aliens who, when arrested by immigration agents in Southern California, had agreed to return to Mexico rather than enter formal removal proceedings which would provide them with an opportunity to challenge their removal. (Settlement Agreement at p.5)

The settlement – stunningly proposed by the U.S. government — provides benefits for both deported illegal aliens and for aliens who face deportation in the future. First, it provides aliens in the class:

The right to return to the United States.
Exemption from the three and ten year bars upon reentry (which generally bar the admission of illegal aliens who have left the country and seek to return), and
If they apply for DACA, a finding of continuous residence in the country (one of DACA’s requirements). (Order, Aug. 28, 2014; see Immigration and Nationality Act (INA) § 212(a)(9)(B))

To ensure that as many deported aliens as possible are allowed to return, the settlement requires a class action claims administrator to find eligible aliens through a $300,000 radio, online, and billboard advertising campaign in Mexico, half of which will come from DHS’ budget. (Settlement Agreement at p. 15, Ex. D)

Then, the settlement requires the Border Patrol in Southern California for the next three years to do the following upon apprehending illegal aliens:

Read a specific script that advises illegal aliens of their “rights” to a hearing,
Inform the illegal aliens of a toll free hotline that provides more advice,
Provide the illegal aliens with a list of free legal service providers. (Order, Aug. 28, 2014, Settlement Agreement at pp.16-17)

To ensure “compliance” during this period, the settlement requires DHS to provide the ACLU quarterly reports that include actual files of Mexican nationals repatriated through this process of “voluntary return,” which is also sometimes known as “administrative voluntary departure.” (Id. at pp. 21-22) “Voluntary return,” is the process by which an illegal alien in the custody of an immigration agent admits to being present in the United States unlawfully and agrees to return home, instead of entering formal removal proceedings. (Id. at pp. 21-22; Order, Aug. 28, 2014 at p. 4; see INA § 240B; 8 U.S.C. § 1229c(a); 8 CFR § 240.25; and 8 CFR § 1240.26)

Finally, the settlement requires DHS to give the ACLU $700,000 in attorneys’ fees. (Settlement Agreement at p. 25)

Considering how far the government went in meeting the ACLU’s demands, one would imagine that the claims in the lawsuit were extraordinarily strong: however, analysis shows that it was the government’s concessions that were extraordinary. The ACLU based its lawsuit on factual claims that Border Patrol agents were “deceptive” in the information they provided when offering aliens the option of voluntary return, and that they were generally overly-intimidating. (ACLU Complaint) DHS denied all of the allegations. (Settlement Agreement at p.2)

Nevertheless, the ACLU claimed that these “deceptive” acts violated Section 240B of the INA and the regulations, which govern voluntary return. ( 8 CFR § 1240.26 and 8 CFR § 240.25) However, the ACLU’s complaint does not detail how the language in the statute or the regulations prohibits the alleged conduct by Border Patrol agents. (See ACLU Complaint) The most specific claim the ACLU makes is that agents’ use of a form that says “I wish to return to my country as soon as arrangements can be made to effect my departure,” violates the requirements that say that when offering voluntary return, the officer “shall specify the period of time permitted for voluntary departure.” (Id. at p. 11, 53; 8 CFR § 240.25(c))

The ACLU also claimed that the Border Patrol’s practices violate the Fifth Amendment of the U.S. Constitution. (Id. at pp. 55-57) The Fifth Amendment establishes rights against the government to those in criminal proceedings, as well as constitutional limits to acceptable police procedures. (See, e.g. Cornell Legal Information Institute)

Specifically, the ACLU objects that immigration agents do not similarly provide “Miranda-type advisals” to illegal aliens upon arrest. (ACLU Complaint at p.12) Yet to make such an argument is to accept the assumption that illegal aliens detained for removal proceedings should be entitled to protections equivalent to criminal suspects detained by law enforcement. However, removal proceedings are civil rather than criminal, meant merely to determine eligibility to remain in the country, rather than as punishment, and thus the array of Constitutional protections provided to criminal defendants do not automatically apply. (See, for example, INS v. Lopez-Mendoza, 468 U.S. 1032 (1984)) By filing this lawsuit (as well as many other similar lawsuits), the ACLU intends to blur that distinction.

Furthermore, in this case, the ACLU actually argues for procedural rights for illegal aliens that even go beyond those of American citizens encountering law enforcement officers. The Miranda warnings mandated by the Courts only require law enforcement officers to advise suspects of a limited number of rights, that is, the right to not to answer questions and to speak to an attorney. (See Miranda v. Arizona) They do not command officers to affirmatively provide “accurate and complete information” as to their legal situation, as the ACLU asserts immigration agents must do. (ACLU Complaint at p.16) Courts have never found the Constitution to require police to “supply a suspect with a flow of information to help him calibrate his self interest in deciding whether to speak or stand by his rights.” (See Colorado v. Spring, 479 U.S. 564, 570-571 (1987))

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