Blows to due process via expedited dockets and bad notices to appear—01-21-22
Immigration news, in context
This is the 109th 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 how the existence of accelerated immigration court dockets and an administrative ruling in favor of incomplete charging documents harms due process.
In Under the Radar, we discuss the Biden administration’s continued legal defense of Title 42.
In Next Destination, we examine a decision to allow people blocked by Trump-era travel bans to waive fees in reapplying for denied visas.
The Big Picture
The news: It’s been a rough time for immigrants’ procedural due process rights in immigration courts as an analysis from Syracuse University’s TRAC project showed that most people put into a new accelerated docket for asylum-seeking families arriving at the southern border were going unrepresented and being ordered deported within seven months; the Board of Immigration Appeals reaffirmed its position that notices to appear (NTAs)—essentially a charging document for immigration court—do not have to contain practically any actual hearing information to vest the court with jurisdiction; and the San Francisco Chronicle reported on emails sent by court administrators marveling at high deportation order rates for another accelerated docket, this one for immigrants who had returned mail.
What’s happening?
Last June, the Biden administration created a dedicated docket specifically for families of asylum seekers crossing the border (the ones they didn’t immediately expel under Title 42). The dockets were initially created in ten cities, not all of which were close to the border, as cases get moved around to different jurisdictions as migrants themselves move around. Though the messaging around it emphasized efficiency and expediency and the potential to reduce the ballooning immigration court backlog and grant families of asylum seekers a faster resolution instead of years of limbo, immigration attorneys and advocates immediately raised concerns about process rights, particularly given the results of prior expedited dockets (more on that below).
There’s always been a sort of due process sweet spot for immigration proceedings. If the cases drag on too long, you risk memories fading, would-be witnesses becoming unavailable, country circumstances shifting, evidence growing stale. If they happen too quickly, there’s the danger that the respondents—equivalent to defendants in immigration proceedings—won’t have time to gather the often complex evidence required to establish asylum eligibility, get an attorney, and have this attorney adequately arrange that evidence into a solid case. In the case of the accelerated dockets, the concerns are obviously the latter.
According to data obtained and analyzed by TRAC (which is a premier source of information about the U.S. immigration system, if you don’t already follow them), the vast majority of families constituting the over 72,000 dedicated docket cases filed in the program’s seven-month lifespan do not have representation. On average, only about 15 percent of the total have had an attorney, and the monthly figure has been dropping from a high of 45 percent in June to under 5 percent in November. Of the nearly 1,700 cases completed so far, 94 percent ended in either a deportation order or a voluntary departure, with only about a hundred resulting in the applicants being allowed to remain in the country on a temporary or permanent basis. This compares to about 91 percent of cases decided on regular dockets in the same period having a respondent’s attorney of record.
One somewhat surprising outcome is that the number of completed cases was dwarfed by dismissals over so-called “failure to prosecute.” Put most simply, the government issues an NTA to a respondent, letting them know that the government is pursuing an immigration case against them and they have to show up to a court hearing at a certain date and time (or are taken there, if in custody). ICE lawyers separately file an NTA with the court, essentially listing out the government’s allegations against them (that they unlawfully entered the country, for example, and have no status). If the date of the scheduled hearing comes and ICE has not filed this paperwork, they have failed to prosecute, and the case can be dismissed.
TRAC’s data shows a total of over 7,000 dedicated docket cases resulted in dismissals for failure to prosecute, a bit of an absurd circumstance given that the government itself chose to expedite these proceedings, and then its own lawyers were unable to file paperwork in time. These dismissals don’t ultimately mean that immigrants are off the hook, as they might in a criminal proceeding. The individuals are still not lawfully present, and the Executive Office for Immigration Review’s policy manual states that the government can file a new NTA, at which point a new hearing would be scheduled. It’s not clear whether these refilings would happen on the same expedited docket or a regular docket. The analysis also made clear what many had suspected: the people being put into the dedicated docket are largely those the government has a harder time expelling under Title 42. Half of them are from three countries: Brazil, Ecuador, and Honduras.
Another accelerated docket that’s in the spotlight is one that the San Francisco immigration court quietly adopted last year, targeting specifically respondents who did not appear to be receiving their mail. NTAs are sent by mail for noncitizens who are neither in custody nor were handed one at the time of an arrest. Generally speaking, noncitizens are supposed to inform the government whenever they move, and so being unreachable by mail is sometimes taken by ICE and the immigration courts as proof that they are evading law enforcement. In actuality, ICE often mails documents to the wrong addresses, or fails to inform people of the requirements.
In emails obtained by American Oversight and reported by the San Francisco Chronicle, court officials internally celebrated that the docket was netting high rates of in absentia orders, and discussed how to most effectively issue such orders without running into procedural issues. The emails demonstrate that even the court officials—who, despite being also part of the executive branch, are supposed to examine and rule on the cases impartially—actively sought to deport more respondents with little regard for the merits.
The subject of what is required for an NTA itself continues to be fraught, as the immigration apparatus keeps trying to give itself permission to issue what amount to immigration court IOUs, or charging documents that don’t actually have information about the date and time of the court hearing. This past week, a panel of the Board of Immigration Appeals—which is the appellate court within the immigration court system, which itself is part of the Justice Department, not the independent federal judiciary—decided once again that these deficient NTAs are fine, this time in the context of establishing jurisdiction for a court to issue an in absentia order of removal. In Matter of Laparra, issued Tuesday, the BIA ruled that an in absentia order filed against a respondent was valid because he had been served with an incomplete NTA and then, separately, another document with information about his hearing.
To do this, the BIA had to essentially skirt a prior Supreme Court decision, Niz-Chavez v. Garland, that had ruled an NTA invalid under rather similar circumstances. In that case, a respondent had also received two separate notices, and the government had argued that they collectively triggered the so-called stop-time rule, which pauses the amount of time a person is considered to have been continuously present in the country when they’re charged with an immigration violation (this can have an impact on their ability to seek some types of relief). SCOTUS ultimately ruled that the statute required someone to be served with a notice to appear with all relevant info for the rule to be triggered, and the government failed to meet that burden.
Here, the BIA panel writes that this decision only applied to the stop-time rule, and not a separate part of the statute that authorizes in absentia orders and does not have a similarly singular “a notice to appear,” but rather alludes to what could be multiple notices. This is tricky because that’s technically true, but the SCOTUS decision could be read as stating categorically that incomplete NTAs are invalid.
How we got here
The idea of fast-tracking migrant families’ asylum cases isn’t new. In fact, the Obama administration first implemented so-called “rocket dockets” during the summer of 2014 in response to an increase in migrant families and unaccompanied children arriving at the U.S.-Mexico border. These expedited dockets were part of an “aggressive deterrence strategy” meant to discourage other migrants from making the journey to the U.S. Immigration officials claimed that since asylum seekers are able to stay in the U.S. and can often legally work while their cases are being processed—a period that can take several years—speeding up case times would deter families from coming to the U.S. Under the expedited dockets, families were required to have their first status hearing within 28 days of when DHS filed its charging document. Unaccompanied children were supposed to have their first hearing within 21 days of filing.
Just a few months after the expedited dockets were implemented, migrant advocates warned that speeding up asylum seekers’ cases had created a “due process crisis.” The National Immigrant Justice Center found that hundreds of migrant children on the expedited docket had their hearings rescheduled with little or no notice, and that in some cases, children in New York or Louisiana were being scheduled for hearings in Chicago.
There was also a widespread lack of access to counsel. Since immigration cases are civil, not criminal, migrants in deportation proceedings aren’t entitled to free, government-appointed attorneys—even in complex asylum cases. Finding an attorney for a regular asylum case is difficult enough, and can often be costly. For migrant families in ICE detention, finding legal representation within an even narrower time frame than usual proved to be difficult. According to a 2016 analysis by TRAC, 70 percent of the expedited family asylum cases closed between 2014 and September 2016 involved families who did not have legal representation. Moreover, the TRAC analysis found that it was “exceedingly rare” for migrant families who didn’t have lawyers “to file the papers in court needed to even seek asylum or other forms of relief or representation,” and that less than 7 percent of unrepresented families had done so. Meanwhile, families with legal representation filed such paperwork in 70 percent of the 38,601 cases adjudicated in that two-year period.
Even the immigration judges’ union spoke out against the expedited docket, citing families’ low rates of legal representation as a problem. The union warned that speeding up cases could unintentionally increase the immigration court backlog, since migrants who lose their cases because they were unable to find a lawyer in time could appeal the decision.
The Trump administration ended the Obama-era rocket dockets shortly after Trump took office. But in November of 2017, the Trump administration introduced its own version of the expedited system for asylum-seeking families. Under the new guidelines, migrants’ first hearings not only needed to be scheduled within a certain time frame, but their cases also had to be adjudicated within one year. The adjudication requirement created even more due process problems. A 2019 analysis by the Migration Policy Institute found that 80 percent of the nearly 17,000 cases that had been closed so far were decided in absentia, meaning migrant families weren’t in court when cited.
The Trump administration used the high rate of absentia decisions as proof that migrant families were intentionally skipping their hearings and “disappearing” into the U.S.—the very reason it claimed expedited dockets and other deterrence strategies were necessary in the first place. But the MPI analysis, among others, found that migrant families often did not receive adequate notice of their hearings, or faced other logistical problems that were compounded by their inability to find legal representation. The MPI analysis also found that the Trump administration’s rocket dockets were even more harmful than those implemented under Obama, given the added time constraints and the Trump administration’s elimination of administrative closure, a tool that allowed immigration judges to close or indefinitely postpone cases rather than decide for or against deportation.
Biden reintroduced rocket dockets in May 2021, and added an even tighter timeline: cases on the expedited dockets had to be decided within 300 days. The expedited dockets were implemented in 11 cities across the country. According to NPR, around 35 of the more than 350 immigration judges in the U.S. have been assigned to the new expedited docket. The problems that existed during the previous iterations of the rocket docket have continued: migrants have a hard time finding legal representation and thus lack access to due process. Without legal representation, asylum seekers have a difficult time arguing their case before a judge—even when they have legitimate asylum claims.
Still, the overwhelming majority of asylum seekers are being shut out of the system in a different way altogether: through Title 42. The pandemic-related border closure implemented under Trump that continued under Biden, and has prevented tens of thousands of migrants—primarily Mexican and Central American nationals—from even entering the U.S. to file a claim. The persistence of Title 42, along with the Biden administration’s recent reintroduction of the Migrant Protection Protocols, perversely means that asylum seekers on the expedited docket are far better off than most when it comes to having their cases heard—even with all the impediments to due process.
What’s next?
There’s no reason to think that the apparent deficiencies identified in the broader asylum expedited docket and the more limited San Francisco returned mail expedited docket will cause the administration or DOJ administrators to reevaluate the programs. All these same concerns were floated at the outset, and were ignored. This is especially true as the immigration court backlog has continued to balloon to staggering levels. By the end of last year, it had reached nearly 1.6 million pending cases, nearly tripling over the course of six years. All of these supposed strategies to curb the growth of the backlog have failed, but that doesn’t mean they will be rescinded. If anything, the government is likely to double down.
The high rates of unrepresented families and removals might be seen as evidence of failure by advocates and immigration attorneys, but they will probably be seen as a victory by the administration (as somewhat evidenced by the positive reaction to the large numbers of in absentia removal rates in the San Francisco court’s expedited docket). It doesn’t even matter that the government’s own lawyers are so overwhelmed they can’t seem to file the charging paperwork on time; they get to just try again, in a way that the migrants who fail to show up or file evidence don’t.
As far as the NTA completeness issue, it seems like the BIA is very much not going to back down from its position that an NTA with almost no information is still a valid legal document, Supreme Court be damned. It’s possible that this will be challenged in federal court, but in the meantime, people who get incomplete NTAs should wait for another document with further detail, because it is still considered to be a binding charging document.
Under the Radar
Biden administration defends Title 42 in court
In the latest hearing in the ongoing Title 42 lawsuit, lawyers with the Justice Department argued that the policy is still needed to prevent coronavirus infections in the U.S.—even as cases surge and travel at land borders and airports has largely returned to pre-pandemic levels. The Trump administration implemented Title 42 in March 2020, at the onset of the pandemic. The public health law the order derives from allows the government to stop the entry of any group of people whose presence in the U.S. could contribute to the “introduction” of a communicable disease; the administration used it to deny entry to or expel nearly all asylum seekers and other migrants without status who arrive at the U.S.-Mexico border. Despite promising to reverse Trump’s immigration policies—and even saying it would slow down and eventually end Title 42—Biden has kept Title 42 in place.
The Title 42 lawsuit was previously on hiatus as the ACLU, which is suing the government on behalf of migrants expelled under the policy, negotiated with the Biden administration. During the spring and summer of 2021, the ACLU and the Biden administration agreed to a temporary exemption process in which migrants identified as being at particular risk in Mexico would be allowed into the U.S. to pursue their asylum claims. The exemption process, however, was both limited and intended to be temporary; only a trickle of migrants were allowed through ports of entry each day, while hundreds more arrived at border cities often unaware of the policy altogether. The exemption process was supposed to be a step in ending Title 42, and the administration had previously said it would begin slowing down the policy after July 31. Instead, it was extended indefinitely.
During Wednesday’s hearing, ACLU attorney Lee Gelernt argued that the order was nonsensical—or even hypocritical—given that migrants subjected to Title 42 make up 0.01 percent of all traffic coming from Mexico. (Last year, the Biden administration lifted the longstanding ban on non-essential travel from Mexico via land borders, which had been in place since 2020.) The administration, meanwhile, said expulsions remain necessary because migrants allowed into the U.S. are kept in congregate settings where COVID can spread quickly. The judges, however, didn’t seem to buy that argument. One noted that CDC officials initially refused to implement the order and told the Trump administration it had little public health benefit. Another said that DHS has had two years to implement COVID precautions in its facilities.
Next Destination
State Department to waive reapplication fees for people previously denied visas under Trump’s travel ban
A new rule published in the Federal Register this week will waive visa fees for anyone whose application was denied due to the Trump administration’s supposedly national security-based bans on travel from more than a dozen countries under Presidential Proclamations 9645 and 9983. The travel bans primarily affected Muslim-majority and African countries, as well as some visa applications from Venezuela. The new rule only applies to those denied entry under the so-called Muslim and Africa bans.
Biden repealed both proclamations on his first day in office. In March, the Biden administration said most people who were denied entry under the bans could reapply. Anyone whose application was denied before January 20, 2020 would have to submit a new application and pay a new fee, while those whose requests were denied after Biden took office would not have to do either. Under the new rule, people who were denied immigrant visas between December 8, 2017 and January 19, 2020 would also have their application fees waived.