Due Process Derailed: How One Dreamer Became a Victim of DHS Blunders, God-like Deference and Nine Months of Detention
Written by: SWadhia
By: Shoba Sivaprasad Wadhia
On March 1, the Third Circuit published Vera v. Attorney, a case that centered on a young girl from Argentina who presumably entered the United States under the visa waiver program (VWP) and was thereafter arrested, detained and summarily ordered removed without due process. ; See also, Musings on the Visa Waiver Program, No-Right Waivers and the Age of Youth. The VWP is a program that enables millions of citizens of select countries to enter the United States as a nonimmigrant for a period of 90 days without having to first obtain a visa. The immigration statute provides that VWP holders should waive any right to review or appeal an immigration officer’s about admissibility at the port of entry or to contest, other than on the basis of an application for asylum, any action for removal. See, INA 217. While the government was unable to provide the official document containing a signature from Vera or her parents that she/they had in fact waiver her rights as a condition of her entry under the VWP, the Third Circuit nevertheless concluded that a waiver could be presumed. Without making a decision about whether Vera even signed a waiver or if she did if her waiver was “knowing or voluntary” the Court found it irrelevant under a theory that Vera’s legal position after admission under the VWP and before admission (had she refused to sign the waiver) were exactly the same—therefore, the court found that Vera suffered no prejudice. The Court also provided some damning language about the forcible lengths that ICE should have gone through to make sure Vera was placed into the plane for removal and the apparent dangers of providing safeguards to minors who enter under the VWP. To illustrate, one footnote in the Third Circuit’s decision noted “[I]t seems obvious that the borders of this country should not be opened to minor aliens literally to walk in on the basis that they are temporary visitors but who then can refuse to leave and demand procedures to determine if they can be removed.” Vera remained in immigration detention for nine months.
Later in March, Vera secured pro bono counsel to represent her in a petition for rehearing en banc before the Third Circuit. In April, Vera successfully fought with her team of attorneys and the New York State Youth Leadership Council to be released from immigration detention. In May, the Office for Immigration Litigation (OIL) (federal court lawyers who represent DHS), filed a motion to throw out Vera’s immigration case because it had discovered that she had not actually entered the United States under the VWP but rather had been admitted as a visitor and therefore was entitled to a full removal hearing before an immigration judge. Specifically, OIL asked the Third Circuit to cancel Vera’s removal order and withdraw its decision.
Jordana Vera was eventually granted a favorable exercise of prosecutorial discretion, which in immigration law refers to the agency’s decision to refrain from exercising the full scope of immigration laws against a particular person or group of persons. See also, http://immigrationpolicy.org/special-reports/morton-memo-and-prosecutorial-discretion-overview. As a DREAM Act eligible student with no criminal history and several ties to the United States, the agency’s decisions to grant prosecutorial discretion is unsurprising. The real surprise lies in the huge error DHS made in prosecuting Vera in the first place, the absolute deference given by the Third Circuit to the DHS despite any evidence in the record to support the government’s claims, and the lengths that Vera went through before the government granted deferred action. See generally, http://www.immigrantjustice.org/press_releases/JordanaVeraDeferredAction
Vera’s case reveals a gross miscarriage of justice by DHS, and the degree to which judicial deference to the agency can interfere with the rule of law. The lack of accountability or interest by the DHS or the Court to weigh any real evidence and achieve a just result is deeply unsettling. Moreover, the case raises serious concerns about the contours of the visa waiver program or any program that favors summary removal over procedural due process. Finally, Vera presents a grand irony in the government’s well-advertised efforts to implement a strong policy of prosecutorial discretion as early in the enforcement process as possible so that individuals who represent “low priorities” to the government are placed on the backburner in order to preserve the government’s precious resources and protect those individual who present strong humanitarian factors. The resources spent by DHS to erroneously prosecute, detain, and nearly deport Vera are unconscionable.