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| Lynn Pearson |
The sweeping changes will remove administrative closure of cases, limit and fast-track appellate review, and give increased adjudicative power to the director of the Executive Office for Immigration Review, or EOIR — a political appointee — among other things. Policy advocates suggest that these changes, taken together, will severely curtail due process for immigrants and asylum seekers.
The Current State
As it is, immigration courts have a surreal quality to the uninitiated, and certainly to attorneys used to practicing in other forums. Before setting foot in an immigration court, I had represented death row inmates for nearly a decade, yet I had never seen anything like it.
At my first hearing representing an asylum seeker, the immigration judge had not reviewed a single document we submitted, performed his own direct examination of my client, and did not allow me to make a closing argument before denying the case from the bench. And yet my client was one of the lucky ones who had an attorney, one who could appeal that decision.
In fact, the majority of individuals and families who appear before immigration judges are unrepresented.[2] Counsel is not appointed to anyone. Even children who are seeking protection on their own must appear before judges without lawyers.[3] Lack of counsel has a direct impact on the likelihood of success; if a person is unrepresented, they will likely be ordered deported, regardless of whether their case has merit under immigration law.
As Judge Dana Leigh Marks of the San Francisco Immigration Court put it in describing immigration court proceedings for asylum seekers fleeing violence: "In essence, we're doing death penalty cases in a traffic court setting."[4]
Part of the EOIR, immigration courts are housed within the U.S. Department of Justice. Appointed immigration judges are beholden to the edicts of the U.S. attorney general.
The American Bar Association has recommended for years that the immigration courts be entirely dissolved and that Article I courts be established to provide greater predictability and fairness, while removing political influence over immigration decisions.[5] Instead, attorneys attempting to assist immigrants through legal aid, as private practitioners or through pro bono efforts, must contend with a Kafkaesque system.
These life-or-death hearings take place in closed courtrooms, sometimes via video, with limited opportunities for evidentiary review and testimony. They often take minutes — not hours — ending with the judge swiftly ordering deportation.
On top of these due process issues, there are bias concerns. Decisions vary wildly throughout the country. In Atlanta where I practice, for example, immigration judges are notorious for having among the highest denial rates of asylum cases in the country, granting fewer than 5% of asylum applications. In other jurisdictions, over 50% of asylum cases are successful.[6]
Transparency is limited. Up until recently, the EOIR publicly released a number of statistics to help with tracking and accountability. Now, TRAC Immigration, the primary hub for collecting and analyzing immigration court data, states that EOIR data is so unreliable it is unable to issue its usual analysis.[7]
One of the only checks on these shadowy administrative proceedings is an appellate process administered by the Board of Immigration Appeals, or BIA, which is also part of the EOIR.
BIA board members act as appellate judges who review immigration judges' decisions throughout the nation, reversing and remanding where appropriate, and issuing both individual and precedential decisions that immigration judges must follow. Theoretically, the BIA should help ensure fairness and oversight in the immigration courts. But the proposed changes come close to eviscerating even these few protections.
The Proposed Changes
The new rules will remove the authority of BIA board members to sua sponte reopen and reconsider cases. And when they do decide to reopen or remand, the new rules will allow immigration judges to request review by the EOIR director. This makes the EOIR director — who need not even be an attorney — all-powerful, even though this person is exceptionally far removed from the immigrant in question or the record.
The possibility of politically motivated decisions that are untethered from previously established case law is exceptionally high. In no other legal forum is there a mechanism for a judge to go over the head of the appellate body if he or she does not like the result.
I routinely see egregious errors in asylum cases — particularly those where no attorney was present during the proceeding.
Consider a woman fleeing female genital mutilation who was not granted asylum simply because the judge applied the wrong legal standard, an indigenous woman fleeing persecution whose testimony was not correctly translated, a gay man whose evidence was lost by the judge; without meaningful appellate review, each of these clients would face deportation despite legitimate claims of asylum.
The removal of immigration judges' ability to administratively close cases will also have dire consequences. This once-routine practice — that was already significantly narrowed by the attorney general in 2018 — allows immigration judges to close deportation proceedings while an immigrant awaits legal status based on a number of visa programs administered by U.S. Citizenship and Immigration Services, a branch of the U.S. Department of Homeland Security.
Without this safeguard, an immigrant with a legitimate right to legal status, for example, a survivor of human trafficking, may be ordered deported by an immigration judge during the pendency of her application. With ever-increasing delays in the processing of such visas — often several years — the elimination of administrative closure will inevitably lead to unjust deportations.
These are just a few of the many changes to an already deeply flawed system that the new rules propose. Immigrants are routinely denied in court more than they should be because they lack attorneys and are up against a process that fails to adequately protect due process.
Conclusion
Practitioners in immigration courts across the country must note that on top of dozens of broad, sweeping policy changes that have come out this year alone, a number of new procedural changes are on the way.
Strict filing deadlines, shorter briefing schedules, fewer continuances and increased filing fees will make it more difficult for practitioners to effectively and zealously represent their clients. It will also likely force them to raise their fees, making attorneys out of reach for even more immigrants and placing greater burdens on the limited capacity of nonprofits and the pro bono community.
The Trump administration has never been subtle with its attempts to dismantle the U.S. immigration system. The past few years highlight how easily an existing system can fall prey to political and ideological influence from any administration. Undermining the rule of law in this way erodes faith in the legal system and diminishes the attorney's role as an officer of the court and advocate for justice.
Checks on government and in legal adjudications are critical under any political administration. For a system to work, it must command the trust of the public and the attorneys who engage with it. Unfortunately, the new EOIR rules will further erode trust in a system that was already failing. They will have severe consequences for many immigrant applicants, and for asylum seekers, may be matter of life and death.
Lynn M. Pearson is a senior staff attorney at the Tahirih Justice Center, where she oversees the Atlanta Appellate Project, aimed at making the asylum process more equitable for those appearing before the Atlanta Immigration Court.
"Perspectives" is a regular feature written by guest authors on access to justice issues. To pitch article ideas, email expertanalysis@law360.com.
The opinions expressed are those of the author(s) and do not necessarily reflect the views of the organization, or Portfolio Media Inc., or any of its or their respective affiliates. This article is for general information purposes and is not intended to be and should not be taken as legal advice.
[1] Appellate Procedures and Decisional Finality in Immigration Proceedings; Administrative Closure, 85 Fed. Reg. 52,491 (Aug. 26, 2020), https://www.federalregister.gov/documents/2020/08/26/2020-18676/appellate-procedures-and-decisional-finality-in-immigration-proceedings-administrative-closure.
[2] Access to Counsel in Immigration Court, American Immigration Council (Sept. 28, 2016), https://www.americanimmigrationcouncil.org/sites/default/files/research/
access_to_counsel_in_immigration_court.pdf.
[3] The Thousands of Children Who Go to Immigration Court Alone, Misyrlena Egkolfopoulou, The Atlantic (Aug. 21, 2018), https://www.theatlantic.com/politics/archive/2018/08/children-immigration-court/567490/.
[4] Death Penalty Cases in a Traffic Court Setting': Lessons from the Front Lines of Today's Immigration Courts, Hon. Mark A. Drummond, ABA: Voices from the Bench, (Jan. 15, 2019), https://www.americanbar.org/groups/litigation/publications/litigation-news/practice-points/death-penalty-cases-traffic-court-setting-lessons-front-lines-immigration-courts/.
[5] Asylum Decisions, TRAC Immigration (Sept. 18, 2020), https://trac.syr.edu/phptools/immigration/asylum/.
[6] 2019 Update Report: Reforming the Immigration System, American Bar Association Commission on Immigration (March 20, 2019), https://www.americanbar.org/content/dam/aba/publications/commission_
on_immigration/2019_reforming_the_immigration_system_volume_2.pdf.
[7] TRAC Immigration, "EOIR's Data Release on Asylum So Deficient Public Should Not Rely on Accuracy of Court Records," https://trac.syr.edu/immigration/reports/611/.