As the Trump Administration Seeks to Remove Families, Due-Process Questions over Rocket Dockets Abound
In targeting migrant families for immigration enforcement, Trump administration officials have defended the operations being carried out by U.S. Immigration and Customs Enforcement (ICE) by saying these individuals have had due process and access to attorneys and interpreters.
Noncitizens who have truly had their day in court and been found to be removable—because they are here illegally and fail to qualify for relief from deportation, such as asylum—should be returned. This is vital for maintaining the integrity of the immigration system and discouraging future migration of people with less than legitimate claims. But the process must be fair, especially in the case of vulnerable populations. What we have seen in these circumstances is anything but.
Since last September, the U.S. government has operated accelerated dockets in ten cities to handle the rising number of cases of families in immigration court—the same locations where ICE was expected to launch major enforcement actions earlier this month. The threatened operations have not yet materialized to the level expected, likely because they were announced in advance by President Trump, in turn sparking civil-society mobilization and anxiety in immigrant communities across the country.
Nearly 17,000 cases have been completed on the accelerated dockets, with 80 percent resulting in in absentia removal orders, meaning the families were not in court when a judge ordered them removed. By regulation, immigration judges must issue in absentia removal orders if the Department of Homeland Security (DHS) has established that the foreign nationals are removable and that they received written notice about the hearing.
While at first glance this exceedingly high in absentia rate might suggest the migrants had gone underground and refused to appear, the reality is the system often hinders or even makes it impossible for them to appear, particularly on an accelerated docket. To blame? The complicated legal process and administrative weaknesses in the immigration court system, alongside the confusion migrants often experience in a foreign country.
The current operation of the immigration court system persistently flies in the face of U.S. principles of due process and equal justice. The formal notices to appear, which inform migrants of their court dates and obligations, are exclusively printed in English. And many migrants apprehended recently at the U.S.-Mexico border and released into the United States pending a future immigration court date have not been given these notices because border processing has been overwhelmed by crisis-level numbers.
While having timely, fair case processing is essential, using “rocket” dockets to speed up proceedings only heightens the breakdowns that are a recurring feature of the system on its best day. Court notices are often sent to incorrect addresses, so individuals ordered to appear never receive them. New arrivals—an especially mobile population—who seek to provide accurate or updated addresses are unable to reliably interact with a system that is overburdened and paper-based. And reports abound of clerical errors in the mailing and issuance of notices.
Without accurate, sufficient—or any—notice that a hearing is taking place, immigrants are unable to prepare or perhaps even arrange travel to their hearings, which are often long distances away. For example, there is no immigration court in Iowa, a state with sizeable numbers of recent arrivals. They must travel either to Lincoln, Nebraska or Chicago for hearings. And given inadequate or missing notice, it is unlikely that noncitizens in removal proceedings will be able to find and retain counsel, and even less likely that any retained counsel would have time to prepare for hearings. Without the advice of counsel, the immigration court system is extremely difficult to navigate. This is especially true for individuals who do not speak English. And the situation will only be made worse now that the administration is no longer providing interpreters at initial hearings, instead explaining court procedures via a brief video.
Comparing Rocket Dockets under the Obama and Trump Administrations
The Executive Office for Immigration Review, the administrative immigration court system that operates under the Justice Department, has used accelerated dockets for asylum cases before. In 2014, the Obama administration implemented rocket dockets for both families and unaccompanied child migrants, after mandating that children have their first status hearing within 21 days of the filing of the charging document and families within 28 days.
At the time, there were serious due-process concerns with these accelerated dockets. However, the process used by the Obama administration maintained more protections than those being used now. Unlike the Trump administration’s accelerated docket, which instructs judges that cases should be completed within “one year or less,” the Obama administration did not mandate an end date. And, the Obama administration encouraged judges to use docketing tools such as continuances and administrative closures, as appropriate, to give individuals time to prepare their cases or apply before U.S. Citizenship and Immigration Services (USCIS) for other immigration benefits for which they might have been eligible. Today, such docketing tools have been severely restricted or altogether ended. These variations are likely part of the reason the difference in in absentia rates is so stark. As of July 2019, 80 percent of families in the current rocket docket had received in absentia orders, compared with 51 percent of those under the earlier accelerated docket as of May 2018.
Figure 1. Accelerated Docket Court Outcomes in Family Cases Under Obama and Trump Administrations, 2014-19
Notes: The Obama period when accelerated dockets were used covered July 2014 – April 2017; the figures under the Trump administration span September 2018 – June 2019. Because in absentia cases move significantly faster than cases in which individuals are showing up to argue for relief, the high in absentia rate of the 2018-19 docket is likely to decrease over time.
Sources: Transactional Records Access Clearinghouse (TRAC), “Priority Immigration Court Cases: Women with Children,” accessed July 15, 2019, https://trac.syr.edu/phptools/immigration/mwc/; Executive Office for Immigration Review (EOIR), “‘Family Unit’ Data for Select Courts,” updated July 19, 2019, www.justice.gov/eoir/file/1187416/download.
The current administration is correct that asylum adjudications should occur at a faster pace. Those placed at the end of the immigration court system’s nearly 900,000-case docket can wait years for their final adjudication. This is bad for legitimate asylum seekers, whose case evidence becomes dated and who have to live with deep uncertainty over whether they will be able to stay. It also breeds public mistrust in the immigration system and invites its misuse, as those who do not have legitimate protection claims are not prevented from entering the country and remaining, often for years.
The Right Way to Do Things
There are proper ways to increase the speed of immigration proceedings while still maintaining due-process rights, thereby minimizing the chances that vulnerable people are sent back to dangerous conditions where they might be victims of persecution.
Access to Counsel
The immigration court system, unlike criminal courts, does not provide a right to counsel. In practice, this means that noncitizens, many of whom do not speak English, must stand in court and face a trained government attorney who is using unfamiliar proceedings, legal practices, and terminology to argue for their removal. Virtually no unrepresented migrants fare well in this environment. Those who have counsel are far more likely to attend hearings and ultimately win their cases.
Under the Obama rocket docket, 81 percent of those without counsel failed to attend their hearings and were ordered removed as a result, while just 8 percent of those with counsel received such in absentia removal orders. And those with counsel were ten times more likely to be granted some sort of relief from removal. So far, data by representation are not available for the Trump administration’s family rocket docket.
Figure 2. Court Outcomes in Accelerated Docket Family Cases Under Obama Administration, by Legal Representation, 2014-17
Source: TRAC, “Priority Immigration Court Cases: Women with Children.”
Representation also increases court efficiency, eliminating delays caused by efforts to find counsel, the need to explain the proceedings to the individual, and unmeritorious claims brought by those unfamiliar with the qualifying criteria.
Alternatives to Detention
This administration has argued for detaining asylum seekers as necessary to ensure their appearance in court. Indeed, DHS is expected to soon release a final regulation that would attempt to allow for indefinite detention of families. But practice shows that alternatives to detention not only foster compliance, but also cost significantly less than detention: about $38 per day as compared with the estimated $237.60 daily detention cost per family.
The Family Case Management Program (FCMP), a pilot program that operated from January 2016 until ended in June 2017, was a community-based alternative to detention for families with particular vulnerabilities. The program included services such as access to food and medical services, based on the premise that noncitizens in stable situations are more likely to comply with immigration requirements. For those who had completed the immigration court process, there was a 99 percent compliance rate.
Changing Asylum Processing at the Border
As the Migration Policy Institute has argued before, the administration could increase the efficiency of asylum processing at the southern border by allowing asylum officers to fully adjudicate cases. Currently, USCIS asylum officers conduct the preliminary “credible-fear” interview of arriving asylum seekers. Those who pass are then placed in the immigration court backlog. If asylum officers were permitted to see cases through, the final determination could be made within months, not years and in a nonadversarial, less resource-intensive setting. Rather than facing the formal procedures and pressures that come with a courtroom, even those without attorneys would likely fare better in appearance rates and outcomes.
If the government is serious about properly enforcing U.S. immigration laws, there are tools that exist to speed and make more effective the processes through which asylum cases start at the border and reach their ultimate adjudication. Removal orders overwhelmingly issued in the absence of migrant families in a complicated, confusing, and often faulty court process, only exacerbated by rocket dockets, do not meet this country’s standards for due process and justice. The situation needs to be fixed before further enforcement actions can be reasonably defended.