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January 21, 2020
Immigration Courts in the United States are not independent courts, but rather fall under the Department of Justice. Immigration cases are heard through the Department’s Executive Office of Immigration Review. While no court is ever fully insulated from the partisanship run amok that dominates our current state of policy, immigration courts are on the front line. They are in essence forced to implement Department of Justice rule changes - many of which end up being challenged in federal courts. What rules apply and when, and even in which immigration courts, is not always clear even to the judges, much less to immigrants and their attorneys.
It is a chaotic system. It has always been a chaotic system, but the current administration has certainly made it worse. Trump’s first Attorney General, Jeff Sessions, implemented a number of rule changes that made things worse. HIs rule denying asylum to people fleeing gangs or domestic violence meant increased denials, increased appeals, and federal court challenges to the rule itself. He also mandated a review of some 300,000 cases which sunk the courts' dockets, already heavy, to over a million case backlog. Under Sessions's and now Barr’s leadership, court judges are expected to fulfill a minimum number of cases, which most judges are not able to do.
In this system, there is tremendous variation across the courts. Whether an immigrant gets asylum or not has much more to do with which judge hears it than the merits of the case itself. Last year, we shared a profile of an immigration judge in Louisiana who had not granted asylum in a single case, after hearing over 200 in five years. In a court in San Francisco, asylum is granted at a rate of over 90%.
The judges themselves are organized into a union, which has sought to normalize the system, and give the courts an independent standing. The Trump administration is trying to get the union abolished.
The Associated Press sent a team of reporters out to 11 different cities around the country to monitor activity. Their findings, published late last week, offer eye-opening insight into the world of immigration law. Against a backdrop of individual stories and interviews with judges, they discuss the general turmoil they witnessed, including:
- Chasing efficiency, immigration judges double- and triple-book hearings that can’t possibly be completed, leading to numerous cancellations. Immigrants get new court dates, but not for years.
- Young children are everywhere and sit on the floor or stand or cry in cramped courtrooms. Many immigrants don’t know how to fill out forms, get records translated or present a case.
- Frequent changes in the law and rules for how judges manage their dockets make it impossible to know what the future holds when immigrants finally have their day in court. Paper files are often misplaced, and interpreters are often missing.
As we discussed a couple of weeks ago, wait times are increasing with the backlog. The average time for clearing an asylum case is close to three years, and nearly a quarter take closer to four years. While 98.7% of the immigrants with asylum cases made every court appearance last year, simply getting to court doesn’t mean your case will be heard. Lack of interpreters, new rule changes and so on, can mean rescheduled hearings - two years later. Meanwhile, denial rates increase, and the administration has even sought to offshore parts of the system. Today, people wait in Mexico for immigration court hearings, which then takes place in a tent in a border town in Texas. In these hearings, the media and other observers are denied or limited in their access, as the so-called "court" infrastructure is run by the Department of Homeland Security not the Department of Justice.
What could go wrong?
Trump administration deporting Honduran women and her children to Guatemala
Under an “Asylum Cooperation Agreement” with Guatemala, the Trump administration is taking the unprecedented step of deporting people who seek asylum in the United States to Guatemala. This is an extension of Trump’s “transit ban” under which the administration refuses immigrants access to U.S. asylum procedures if they traveled through a third country before arriving at the U.S. border. However, even people from Mexico, for whom the transit ban would not apply, may be soon be deported to Guatemala either to seek asylum there or return home.
What does this look like? Like this (From CBS):
Lawyers and advocates are mobilizing to try to stop U.S. immigration officials from deporting a young Honduran mother and her two sick children to Guatemala, where the Trump administration has sent dozens of asylum-seekers in recent weeks as part of a controversial deal with the Central American country.
The 23-year-old migrant mother and her two daughters — a 6-year-old and 18-month-old baby — were apprehended at the U.S. border in Texas in December and are slated to be sent to Guatemala on Tuesday, according to court records. The family's lawyers say the two girls, who have been sick and were recently hospitalized, are in no condition to be deported to Guatemala…
If the family is deported to Guatemala, it will join 209 asylum-seekers from Honduras and El Salvador — including more than 50 children — who have been sent there by the U.S. under an "Asylum Cooperative Agreement" with the Guatemalan government. Those subject to the agreement are denied access to America's asylum system at the U.S.-Mexico border and required to choose between seeking refuge in Guatemala or returning home.
The deal has elicited strong criticism from advocates, who point to Guatemala's skeletal asylum system and the fact that hundreds of thousands of Guatemalan families have trekked north to the U.S. southern border in the past two years, many of them fleeing endemic violence and extreme poverty.
Last week, the American Civil Liberties Union and other groups filed a lawsuit to try to block the administration from enforcing the agreement with Guatemala, as well as similar deals the United States forged with Honduras and El Salvador.