Waiting for Justice in Immigration Court

Rescinding Trump-era restrictions would only be a start toward radical reform.

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Walter, a forty-seven-year-old asylum seeker from El Salvador, has found U.S. immigration court to be a barrier, not a pathway, to freedom.

“It feels like they are trying to convict you of something,” says Walter, who is now appealing his deportation order.

He tells The Progressive how he fled his homeland in December 2017 after MS-13 gang members, collaborating with police, tried to extort him; when he didn’t comply, they beat and hounded him.

Walter’s 2018 proceedings in Cleveland Immigration Court were made all the more problematic because he did not have a lawyer and, as he puts it, “it was never explained what I had to show to win.”

He is caught in an immigration court system that has never had the independence to give asylum seekers a fair shake. The presidency of Donald Trump made a bad situation much worse. Trump’s attorneys general, who oversaw and appointed immigration judges, issued directives that strictly limited the grounds for asylum and sharply restricted judicial discretion. These directives remain in place.

Not surprisingly, with Trump determined to deport as many immigrants as possible, the nation’s immigration court caseload more than doubled from October 2016 to this April, growing to a total of nearly 1.3 million. His legacy will linger with Trump Administration judges, according to Reuters, making up about two thirds of the 520 immigration judges in place when President Joe Biden took office. They are considered career Justice Department employees.

Asylum denials shot up from an average of 54.6 percent during the last fiscal year of the Obama Administration to 71.6 percent as Trump completed his term. 

U.S. immigration courts have been especially cruel to asylum seekers from Guatemala, Honduras, El Salvador, and Mexico—all with much higher denial rates. But rather than Vice President Kamala Harris’s message of “Do not come,” the focus should be on why asylum seekers are treated so inhumanely.

“It’s just heartbreaking,” says Brian Hoffman, executive director of the Ohio Center for Strategic Immigration Litigation and Outreach, who is representing Walter in his appeal to the Board of Immigration Appeals. “We see people going in front of judges and thinking they have a shot—thinking, surely, if I tell the judge what happened to me, he is going to give me asylum because my life is in danger.”  

Sweeping relief to immigrants stuck in a court system stacked against them must come without further delay—especially since 98 percent of the cases concern immigration violations, including more than 700,000 for unauthorized entry. 

Deportation is not the answer. “We need to be here,” says Jenny, a twenty-seven-year-old Ecuadorian woman, appealing her December 2018 asylum denial. “I hope things change. There are many people like me, women fleeing their situation.”

Jenny tells how she barely escaped Ecuador in 2013 because a gang leader, whose advances she rejected, was out to kill her and harm her family. Ecuadorian police refused to help and, according to Jenny, didn’t consider the stab wound she suffered from the gang leader serious enough to warrant intervention.

New York City Immigration Judge Brian Palmer, a former military lawyer and judge appointed by then-Attorney General Jeff Sessions, found Jenny’s testimony credible, but still denied her asylum. He cited Sessions’s directive making it much more difficult to claim gang violence as grounds for asylum.

A draft plan recently obtained by The New York Times indicates that the Biden Administration is expected to rescind some of the most damaging Trump Administration policies.

But what the administration has in mind for immigration courts is unclear. Its initiative, unveiled in late May to fast track newly arrived, undocumented families placed in immigration proceedings is a big step in the wrong direction.

Under the plan, families are assigned to immigration courts in ten cities, where they are not detained but are expected to find legal representation and have their asylum cases decided within 300 days. “Rocket dockets,” intended to speedily work through the cases were tried under Obama and Trump, but were fraught with problems.

“They’re doing the same failed policy that they know results in due process violations and lack of representation,” says Denver immigration lawyer Christina Brown, who was previously involved with rocket dockets. “I don’t understand how they could reach this conclusion unless the goal is to keep deporting Central Americans without a fair chance to file asylum claims.”

Such a program seems to fit into the Biden immigration playbook. “The message is: You are not going to stay, so don’t come,” says Atlanta immigration lawyer Anna Erwin.

Biden’s proposed budget calls for 100 new immigration judges, which would help reduce the backlog and provide an opportunity to break with the history of appointing many immigration judges who are former prosecutors. But almost all of the first seventeen judges recently announced by Attorney General Merrick Garland have prosecutorial or Homeland Security backgrounds.

The best way to reduce the backlog is to close the vast majority of these 1.3 million cases, since these are immigrants—often with deep roots here—who are contributing members of society and deserve to stay.

For starters, representatives from sixteen immigrant rights groups proposed taking at least 700,000 non-priority cases off immigration court dockets.

“The previous administration implemented a politically motivated agenda that turned the immigration courts into a conveyor belt to deportation and all but closed the door to asylum seekers,” said the groups’ leaders in a March 16 letter to Garland.

Trump was so determined to deport that the Department of Homeland Security, over the course of at least a year, sent fake notices for hearing dates they knew had not been scheduled. DHS wanted immigrants to receive these notices because if they had been in the United States for ten consecutive years without getting a notice, they could apply for relief from deportation.

The result was that immigrants who received such notices waited in long lines for nonexistent court hearings.

Advocates for immigrants say the Biden Administration must put asylum seekers on a fairer footing when pleading their cases. 

“We need to reframe the idea of what justice means,” says Laura Lunn, detention managing attorney for the Rocky Mountain Immigrant Advocacy Network. “First and foremost, we need to have court-appointed counsel for somebody who can’t afford an attorney—just like criminal defense law.”

Guidance can be taken from Margo Cowan, a public defender in Pima County, Arizona, who is heading up an effort to put on that county’s 2022 ballot a resolution to provide a public defender to local residents facing detention. In fiscal 2019, immigrants had lawyers in just 2 percent of almost 24,000 cases in Tucson Immigration Court.

“These are our families, friends, and neighbors who have been in the area for years paying taxes and helping build our communities,” says the Pima County Justice for All primer on this initiative.

Biden’s proposed budget in no way dismantles the deportation machine. It projects 167,420 deportations and an average daily detention population of 32,500—close to the daily average at the end of the Obama presidency.

What’s more, another plan under review, as reported by BuzzFeed News, suggests that the administration might have asylum officers decide cases at the border. Many of these cases might never get to immigration court. Quick reviews could replace a thorough airing of asylum claims.

Instead of looking for new ways to keep asylum seekers out of immigration court, Biden should push for legislation to take immigration judges out of the executive branch.

A 1891 law set up a system for executive branch review of the admissibility of immigrants within the Treasury Department. Immigration judges are now part of the Justice Department’s Executive Office for Immigration Review.

“The immigration judges have to answer to the attorney general,” says West Virginia law professor Alison Peck, author of the new book, The Accidental History of the U.S. Immigration Courts: War, Fear, and the Roots of Dysfunction.

And while the Biden Administration has launched initiatives for better representation of many undocumented immigrants, the stakes in detention and deportation cases are too high to let the asylum seekers—often already traumatized—try to figure out an immigration court system stacked against them.

“It’s very difficult to navigate. The legal principles are very difficult to understand,” says Blanca Guevara, a leader of Mujeres Unidas y Activas (MUA), a Latinx women’s activist group in the San Francisco Bay area. The group helped mount a campaign to publicize the detrimental effect of Sessions’s 2018 directive that strictly limits domestic violence as grounds for asylum.

A repeal of Sessions’s directive would certainly help MUA member Bertha, a thirty-year-old Guatemalan woman who fled domestic violence and now can only hope that an immigration judge will hand down a decision in her favor.

“That will make it so that I can stay here instead of going back to Guatemala, where I receive threats to my life,” she says.