New Immigration Court Directive Could Weaken Due Process

Photo by Karen Neoh.

Written by Katie Shepherd

 

The Trump administration released a memorandum this week–effective immediately–which orders the Department of Justice Executive Office for Immigration Review (which manages the immigration courts) to prioritize deportation hearings for certain groups, including any non-citizens who are detained and unaccompanied children who do not have a sponsor.  The memo rescinded preexisting immigration court priorities from early 2016 and 2015 that included all other unaccompanied children, families released from custody, and other recent border crossers.

On its face, the new directive may appear simply bureaucratic or benign, as it primarily narrows the focus of the court docket to those in government custody, perhaps in an effort to minimize government costs on detention.  In practice, however, the new memo targets vulnerable children who arrive at the United States alone and who do not have a sponsor in the U.S. with whom they can live, but have yet to be placed in long-term foster care.  Their claims for protection or immigration relief in the United States can be complex—often based on a history of being trafficked, abused, abandoned, or persecuted—and without family or legal support, their cases are unlikely to succeed. In September 2016, the Ninth Circuit Court of Appeals made it even harder for unaccompanied children to bring a claim seeking a right to be represented by counsel in immigration court, finding that children must first lose their cases before raising a claim to counsel in federal court. Prioritizing these children for deportation proceedings means that they will be among the first deported despite their vulnerabilities and need for protection.

The new court docket memo also directs the immigration courts to prioritize deportation hearings for noncitizens that are in detention. Detained immigrants are the least likely to have counsel who can help them navigate the immigration court system; from 2007-2012, only 14 percent of detainees acquired legal counsel, compared to two-thirds of non-detained immigrants. Often located in remote areas far from a detainee’s family and support network, the challenges of identifying and paying for counsel can be too great to overcome.  Fast-tracking the cases of immigrants in detention centers over those who are not in detention threaten to turn detention centers around the country into deportation mills.

With more than 40,000 noncitizens currently in immigration detention and recent announcements by the new administration to expand both the use of detention and the number of detention facilities, the implications of this court prioritization could be exponential.

Without robust funding for the immigration courts, no matter what cases are prioritized the backlogs are likely to remain or expand.  At more than 500,000 backlogged cases, it can take years for an individual to have their case resolved. A reshuffling of priorities alone will not make for a more functional court system but will victimize those get pushed through it and curtail their due process.