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Administration considers sped-up asylum process as it opens new rocket dockets—06-04-21
Immigration news, in context
This is the eighty-first edition of BORDER/LINES, a weekly newsletter by Felipe De La Hoz and Gaby Del Valle designed to get you up to speed on the big developments in immigration policy. Reach out with feedback, suggestions, tips, and ideas at BorderLines.News@protonmail.ch.
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This week’s edition:
In The Big Picture, we look at the administration’s leaked plans to modify the asylum processing system, as well as its effort to set up a new dedicated docket for migrant families.
In Under the Radar, we examine the final dissolution of the Migrant Protection Protocols program.
In Next Destination, we delve into Texas Gov. Greg Abbott’s effort to strip licenses from shelters that hold unaccompanied minors on behalf of the federal government.
The Big Picture
The news: A leaked draft of potential new Biden administration asylum policies lays out a vision for how the system could be run to prioritize speed and clearance rates, an extension of the approach already exemplified by its effort to create new “rocket dockets” along the border. The recent executive budget proposal also lays out a roadmap for immigration priorities.
BuzzFeed News’ Hamed Aleaziz obtained both a draft potential rule and communications plan. The thrust of the rule would let asylum officers, who are staff of the U.S. Citizenship and Immigration Services trained to interview asylum seekers, make full decisions on asylum claims, i.e. grant or deny the status. Currently, for people in defensive asylum processes—those that begin as a defense against deportation in removal proceedings, which encompasses almost all migrants arriving at the southern border—asylum officers are involved in the initial step, the credible fear interview.
The credible fear interview is an intentionally low bar meant to advance cases with any merit, and denials can still be appealed up to an immigration judge. People in affirmative asylum proceedings, who enter the country legally and apply within a year of arrival, and unaccompanied minors subject to the Trafficking Victims Protection Reauthorization Act can already be granted asylum directly by asylum officers. The new policy would essentially extend this possibility to everyone, cutting down on the time it takes people with strong cases to receive asylum grants—potentially by years. It appears that denials by asylum officers could still be appealed to the immigration courts.
According to the documents, the change would be implemented as an interim final rule, meaning it would go into effect immediately, without the usual notice and comment period. According to Aleaziz’s reporting, Homeland Security officials are hoping to move on it this month, though the timing is subject to change. The communications strategy would emphasize the explosion of the immigration court backlog, of which asylum processes are a significant fraction and currently take years on average.
The notion of speeding up the processing of asylum cases is a minefield within the immigration policy sphere. Almost everyone agrees that cases are needlessly bureaucratic and take too long (for example, asylum seekers who are not contesting any of the facts of their entry or status must still appear for initial “master calendar” hearings, roughly the equivalent of a plea hearing, and then have an actual merits hearings months later). Anti-immigrant factions contend that the length of the proceedings incentivizes people to file “frivolous” claims—an obsession of the Trump administration, more on that later—and live in the country for years before they might actually get a removal order. Pro-immigrant groups point out that evidence gets older, circumstances change, and witnesses become unavailable in the time it can take cases to wind their way through the courts, not to mention that it leaves people with strong cases in a stressful and often indefinite limbo.
Still, immigrant advocates have emphasized that speeding things up for its own sake is an easy slide into due process violations, especially if it doesn’t give asylum seekers proper time and venue to develop a legally complex case and present it in court. Asylum officers are not immigration judges. Despite their training, they may not always have the full legal background to carefully adjudicate difficult cases, particularly if under pressure to close quickly (not that immigration judges necessarily do either, but that’s another can of worms). While it’s true that denials can be run up to judges, an initial denial becomes a barrier to overcome, and can easily weigh down an application going forward.
The potential harms aren’t theoretical, as evidenced by the rollout and results of the “rocket dockets” in use under the Obama and Trump administrations, which are described in more detail below. Clearly, these arguments haven’t been altogether convincing for Biden officials, who last week launched a new dedicated docket for recent-entrant, asylum-seeking families with proceedings before immigration courts in Denver, Detroit, El Paso, Los Angeles, Miami, Newark, New York City, San Diego, San Francisco, or Seattle, with the possibility of an expansion. Officials stressed that in this instance, people would have greater access to legal services and judges wouldn’t be rushed to make decisions, but it remains to be seen if this will fully head off due process concerns.
How we got here
Biden is by no means the first president to expedite immigrants’ hearings. The Trump administration implemented a rocket docket in 10 cities in 2018, which adjudicated almost 17,000 migrant families’ cases in less than a year, according to the Migration Policy Institute. Of those cases, 80 percent were decided in absentia, meaning the families in question didn’t show up to their hearings. The Trump administration used that statistic to suggest that most asylum seekers’ cases are fraudulent—and to justify policies like Remain in Mexico and the asylum ban, which it claimed were designed to weed out non-meritorious claims.
However, as the MPI’s Sarah Pierce noted, Trump’s rocket docket had a high rate of absentia decisions because the immigration adjudication system itself “often hinders or even makes it impossible for [families] to appear [in court], particularly on an accelerated docket.” Even under normal circumstances, many immigrants don’t have lawyers to guide them through the legal process; people in removal proceedings aren’t given free, government-appointed counsel. Immigrants are often not given adequate notice of their hearing dates, and would often be sent incomplete hearing notices or never receive them at all (a recent Supreme Court ruling chastised the government for this and ordered it to provide all relevant details in these charging documents).
The Trump administration in 2020 also expedited the cases of some unaccompanied migrant children who were not initially granted asylum by USCIS, instructing immigration judges to adjudicate their claims within 60 days. This sped-up process involved the use of remote hearings via video conferencing—a tactic used before the coronavirus pandemic led to a shift in remote work—in which children appeared at an immigration court in Houston but had their cases decided by an immigration judge in Atlanta.
The Obama administration also implemented rocket dockets in 2014. These adjudicated dockets were for both families and unaccompanied children. More than 38,000 cases were adjudicated in the two years after the docket’s implementation—70 percent of which involved migrants without any kind of legal representation—according to a report by TRAC. Among families who didn’t have legal representation, 43 percent of cases were closed at the initial master calendar hearing, which suggests that families who may have filed an asylum claim had they been aware of the legal process didn’t do so because they weren't aware of their rights. According to the TRAC report, 93 percent of unrepresented families—comprising 25,248 cases—didn’t file a relief application of any kind. Meanwhile, 70 percent of families with legal representation did file relief applications.
Still, more than half of the cases involving immigrants with legal representation adjudicated on the Obama administration’s rocket dockets from 2014 to 2017 led to deportation, while only 21 percent led to some kind of relief. Meanwhile, 92 percent of unrepresented families were ordered deported—and just one percent were granted relief.
The goal of these rocket dockets is ostensibly to reduce the massive immigration court backlog, which has ballooned to more than 1.3 million cases. Even with a host of policies meant to get asylum seekers to give up on their cases—or quickly deport them before they decide to do so—the backlog has increased at a staggering pace. It has more than doubled since 2016: it hovered around half a million cases right before Trump took office.
The draft rule is, of course, a draft, and subject to change or to not be implemented at all. However, it seems unlikely that the administration would have gone through the trouble of drafting a communications plan if it wasn’t planning on rolling it out. If and when the policy is implemented, it has the potential to dramatically change how cases are handled at the southern border, with asylum grants coming potentially in a matter of weeks as opposed to a matter of years.
Tentatively, it seems like it would be a net positive for asylum seekers, for a number of reasons: despite the fact that an asylum denial could be prejudicial to a case upon appeal to the immigration court, it remains the case that denials can be re-litigated through the full court process while grants would probably be final. The process would take place outside of the confrontational court setting, where migrants are up against ICE prosecutors trained to cast doubt on their claims and find technicalities to get their applications denied.
This also means that there would be no counterparty to appeal a grant, as there is in immigration court, where successful asylum claims are routinely appealed by ICE. Given that initial jurisdiction would fall to USCIS, it’s also possible that this plan would circumvent many of the Trump-era anti-asylum Board of Immigration Appeals and Attorney General decisions — which act as precedent for the immigration courts — moot, as they wouldn’t similarly constrain asylum officers.
Still, a lot of detail is missing as far as how this program would actually work; would asylum officers receive any additional training? Would USCIS hire more asylum officers for this effort? Perhaps most importantly, will the administration make additional regulatory changes to clear a number of anti-asylum regulatory shifts that the Trump administration undertook, some of which remain tied up in litigation but could still go into effect. For example, several rules that would narrow eligibility and create new bars for asylum have been enjoined or delayed, but have not been formally dropped.
We also have yet to see how exactly the new dedicated docket courts will fare. They’ve created a great deal of alarm among advocates and legal providers, though it’s not clear yet whether any families have already been placed on the docket, and certainly no cases have been resolved. Paired with a real commitment to assisting people in finding legal representation and no external pressure to complete the cases in a shortened timeline, they could work, but the jury’s still out.
Under the Radar
Biden officially ends Remain in Mexico policy
The Biden administration ended the Migrant Protection Protocols this week. The Trump-era policy required some asylum seekers from Spanish-speaking countries (and later Brazil) to wait in Mexico while their immigration cases were adjudicated in the U.S. More than 71,000 people were subjected to the program from January 2020 until January 2021, when the Biden administration stopped enrolling migrants in the program altogether, according to data from TRAC.
In February, the Biden administration began letting migrants who still had pending MPP cases into the U.S.—an early step in ending the program altogether. By mid May, individuals in more than 8,000 MPP cases had entered the U.S., but there were still more than 18,000 migrants waiting to be paroled in.
In a memo to staff, DHS secretary Alejandro Mayorkas said the Remain in Mexico policy didn’t “adequately or sustainably enhance border management in such a way as to justify the program’s extensive operational burdens and other shortfalls.” Mayorkas’s memo largely focused on operational burdens from the government’s perspective, such as the number of encounters at the border and the speed of asylum hearings, which were expedited under MPP. “It is certainly true that some removal proceedings conducted pursuant to MPP were completed more expeditiously than is typical for non-detained cases,” he wrote, “but this came with certain significant drawbacks that are cause for concern.”
In addition to speeding up the timeline for asylum cases, MPP cut off many migrants’ access to lawyers and put them in serious danger. There are dozens of reports documenting the harms migrants forced in Mexico have endured: kidnapping, extortion, and harassment are among them. These problems aren’t mentioned in Mayorkas’s memo, but it’s likely that human rights concerns were involved in the Biden administration’s decision to end the program.
There’s been no indication yet that the government plans to offer any relief for the migrants denied asylum in the around 40,000 MPP already closed before the program was wound down. Legally speaking, they are considered deported, even if the U.S. forced them to wait in Mexico throughout their proceedings and they faced enormous obstacles to mounting their defenses, including everything form lack of legal services to persistent kidnapping.
Texas Governor orders state to remove licenses for shelters that house migrant children
Gov. Greg Abbott, a Trump ally and one of the loudest critics of the Biden administration’s immigration policies, instructed the state’s Health and Human Services Commission to strip shelters that house migrant children of their licenses. Via executive order, Abbott ordered the agency to deny any pending licenses for shelters that have contracts with the federal Department of Health and Human Services, which oversees the Office of Refugee Resettlement, the agency that handles shelters for unaccompanied migrant children. Abbott’s order also requires the state to give existing shelters 90-day notice that they’re about to lose their licenses.
This move could be significant, as federal law generally requires the government to house unaccompanied migrant children in licensed facilities. When children arrive at the border unaccompanied—or with adult relatives who aren’t their parent or guardian—they’re supposed to be transferred out of DHS custody and into the “least restrictive setting” possible, which typically means licensed shelters. From there, the government is supposed to reunite children with sponsors in the U.S.—typically parents or other relatives—as quickly as possible.
There have been several instances of the federal government instead sending migrant children to so-called “temporary influx shelters,” which are typically unlicensed and not subject to the same safety and quality standards as those with state licensing. Biden, Trump, and Obama have all received criticism for using influx shelters at different points—sometimes during supposed “surges” of children at the border, and other times because government policies led to an increase in the amount of time children spent in shelters before being released to their sponsors.
Abbott’s order would affect 52 shelters in Texas. The federal government has a network of more than 200 shelters across the country. It’s possible that losing access to even a few of those shelters could lead to yet another backlog of unaccompanied children at border facilities, or that it could push the Biden administration to increase its use of unlicensed facilities—both of which could put children in unsuitable conditions.
It’s not yet clear what if any legal action will be taken against Abbott’s order.