NOI 17: Why Are Immigrants Getting Fake Court Dates in Immigration Court?

Immigrants sometimes show up to immigration court with documents saying they have to appear in court that day, but they don't actually have a hearing.

Jacob Tingen: Hello Nation of Immigrants. As you can see, it’s lawyer up Friday again. Here in the office we were at these districts every week on Friday. We kind of dressed down. Today though, we’re going to be talking about fake immigration court dates. This is an interesting topic. It’s related to kind of a broader set of topics that I have given public presentations on. I spoke related to this topic at the Virginia State Bar Annual Conference this last summer. It’s just interesting. Why are we really giving fake immigration court dates? The answer is yes, but why are we doing that is something we’ll be talking about today. Welcome to Nation Of Immigrants. I hope you enjoy today’s episode.

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President Obama: America is a nation of immigrants.

Announcer: A podcast about US immigration law with your host Jacob Tingen.

Jacob Tingen: Okay. Thank you again for listening to Nation of Immigrants. As I’ve been mentioning in the last couple of episodes, we are accepting donations to help support the podcast, and the idea is that you’re not just supporting the podcast, but you are supporting immigrants. We’re going to take those funds and put them towards immigrant legal bills. We’ll be setting up a 501(c)(3) soon, but you can of course donate now.

Jacob Tingen: Okay. As I frequently do when I’m about to do a Nation of Immigrants episode, I literally just check the news. I Google News. And one of the headlines that caught my eye today is this one after from the Miami Herald, fake court dates are being issued in immigration court. That might be news to some people, but for practicing immigration attorneys, it’s not news. It’s crazy that this is a real thing, but it is a real thing and we’re going to talk about why that is.

Jacob Tingen: What’s actually going on here? Well, the last big immigration reform we had, which I guess was the last time Congress could cooperate together on this issue, was in the 90s, right? I think there was a change, they changed it to no longer deportation proceedings, it’s removal proceedings, which is a technical difference, I know. Then additionally in that kind of adjustment, there were some laws that were issued. Immigration proceedings begin with a document called a notice to appear. What the notice to appear does is the way I explained it to my law students and other lawyers when I give presentations, is that it starts a very formal conversation where the US says in letter format to an immigrant, a number of things. At the top of the page, it has their name and the date and that kind of stuff.

Jacob Tingen: Then it’ll list what are known as the factual allegations. Then closer to the bottom of the page, it will have a section where it says you are charged with removability as follows, and it’ll cite something from those grounds of admissibility that we’ve talked about from INA 212 or sometimes grounds of deportability. Then at the bottom of the page, it’ll say you need to appear in immigration court and we serve this document on such and such a date. Okay?

Jacob Tingen: This formal document, the NTA or the notice to appear, the allegations are factual things like you’re not from here. Right? That’s one of the first things that it’ll say is you’re not from the US. Instead, you are from another country. You’re not from here. You are from another country. You do not currently possess appropriate documents. You entered the US on or about certain date. Then it’ll skip to the charge and say, by the way, for those reasons, you’re deportable.

Jacob Tingen: And so when a immigration attorney gets a client, typically I’m going to ask to see their paperwork and try to find this notice to appear, the NTA. It’s going to have an identification number known as A number, the alien number on it. I can use that to kind of figure out when the court date actually is. Now at the bottom of the page, like I said, it’ll have information like you must appear in court on a certain date and a certain time. Now, that’s required by statute, that a notice to appear should say when and where you have immigration court. Now of course for an immigrant coming into the country may not know exactly where they’re going to be living, it can be difficult to know which immigration court they should appear in. And so, a lot of times instead of listing an actual court address, it’ll just say you are required to appear at the … and then it’ll say to be announced or to be determined immigration court on a date to be determined at a time to be determined.

Jacob Tingen: Now, one of the things that is frequently said about immigrants and their court dates when they come over, one of the criticisms I guess, is that these immigrants don’t even show up to their court date. Now, if this is the first document that they receive the notice to appear and this says you are in removal proceedings and you don’t really speak English because you’re an immigrant, and they give you a paper that says, by the way you have to appear at a court somewhere in the United States at a date sometime and at a time sometime. I’m going to give them the benefit of the doubt and say it’s reasonable that they don’t show up to that court date, because how are they supposed to know? Now of course, they are typically communicated in one way or another. You need to keep your address updated with the immigration courts, with the service, there are a lot of alternative to detention programs that require immigrants to check in with people.

Jacob Tingen: There is an effort to try to maintain good records, but I think if we determine what happens in immigration court influences the rest of some people’s lives, right? Well, anybody, everybody in immigration court, what happens affects their lives. But if that’s the process, if that’s the standard that we’re going to live by is all like you know what, you’ve got court someday, sometime, somewhere, and then they don’t show up in immigration court and then we enter what’s called an in abstention order of removal if they don’t show up, then I think that that probably leads to a lot of outcomes that aren’t fair. Okay?

Jacob Tingen: Now originally, like I said, for a notice to appear to be valid, it has to include that place, name, and address. It has to include an actual date and an actual time for removal proceedings. Basically, it makes sense. If I’m going to put you in a process where you have to appear in court, I’m going to tell you when and where and how to do that. And so, that’s required by statute.

Jacob Tingen: Now, from a regulation from about the 2000s, and this is one of those other issues, by regulation, the service decided that you know what, we’re only going to put time and date information where practicable. That’s what it says, only where practicable. And so from about 96, 97, to about the year 2000ish, virtually every NTA had a time and date because CBP and those guys coordinated with the immigration courts and worked out dates. I don’t know why the regulatory changed, I don’t know why where practicable came into the picture, but since that time, since that regulation, virtually 99% of all notices to appear have been issued without a date and time. Okay? Again, when pundits or other opinion leaders say, “Well, these immigrants don’t even show up to their court dates.” That’s unfair. It’s really, again, hard to say.

Jacob Tingen: Well, they didn’t show up to their court date when we didn’t even tell them when they needed to show up. Now technically, again, if they maintain their address with the immigration court, the immigration court will subsequently send out a notice of hearing and that should get resolved. But inevitably, these kinds of issues lead to big problems. One of those big problems came to head in a Supreme Court opinion that was issued last year called Parada v. Sessions, simply because Jeff Sessions was the attorney general at the time. But Parada was an immigrant and the fact pattern is something like this.

Jacob Tingen: Basically, he had been arrested on an immigration violation after about seven years in the country and was given an NTA, a notice to appear, which did not have a date in time for his removal proceedings. Now, I believe in the fact pattern, surprise, surprise, he was mailed a subsequent notice of hearing so that he would actually appear at the immigration court date, but he never got it. Right?

Jacob Tingen: Then subsequently he was arrested at about 13 years of presence in the country and said, “Whoa, whoa, whoa, whoa. I never got my day in court. You can’t deport me.” And so then they reopened proceedings because they said, “Okay, you’re right. You know you didn’t get your day in court.” But then because even though he’d been arrested at seven years because he didn’t actually get his first court date until about 13 years in, he tried to apply for a form of relief called cancellation of removal, non-LPR cancellation of removal. We won’t get into the technicalities of that. But one of the requirements to apply for non-LPR cancellation of removal is that you have been present in the US for a period of 10 years before service of the notice to appear. Well, his attorneys looked at the notice to appear, said, “Well this is not a notice to appear because it did not list the time and date information.” So he wasn’t ever actually served with a notice to appear, and so his time continues to roll on past seven years.

Jacob Tingen: Now, I believe that’s reasonable and so did the Supreme Court. Ultimately, the supreme court decided in an eight to one decision, so almost unanimous, that this document that had been served on Parada did not meet the qualifications of a notice to appear under the statute, and so it didn’t begin or cutoff the stop time rule for applying for cancellation of removal. Basically, they said you can still apply for cancellation of removal because you were here in the US 10 years before you received a notice to appear and you didn’t receive a notice to appear.

Jacob Tingen: That’s what happened in Parada. One of the things that the Supreme Court said in their decision was, “Hey, and by the way, you used to coordinate with the immigration court and put on dates, so why not do that today?” Like, it’s 2018, people, and now it’s 2019. We have things called computers. I’m sure that you could pull off some kind of coordination and get a real date on some of these notices to appear. It’s interesting that on appeal up to the Supreme Court, the government argued, “Hey, look. If we have to put dates on this, we’re just going to put fake dates. This is going to lead to results where they’re just given dates that aren’t real dates because they’re not coordinated with the immigration court.” The Supreme Court said, “No, you can coordinate dates. Like, why wouldn’t you? This is totally possible and doable. Coordinate with the immigration courts and put dates on these notices to appear.”

Jacob Tingen: Well, that gets us to where we are today. In the aftermath of Parada, people were receiving notices to appear that said things like show up to immigration court at such and such a place on September 31st. There is no September 31st. Some people were issued notices to appear to appear on September 32nd, and if you don’t know that’s not a date, I can’t help you.

Jacob Tingen: Anyway, other people have been issued notices to appear for November 31st right? And so, these dates were just being put on these notices to appear, fake dates. Sometimes they were given dates that do exist, like you know, September 14th or whatever, September 20th today. Right? Let’s say that they’re given a date for today, but that’s never communicated to the immigration court. Well, an immigrant might show up today and the court will be like, “Well, we didn’t know that you were going to be here. Nobody ever told us that we needed to have proceedings for you today. Why don’t you just come back later? Make sure your address is up to date and we’ll send you a notice of hearing whenever you do have a hearing.” Right?

Jacob Tingen: I have literally showed up to immigration court and seen it three to four times more crowded than normal and asked what’s going on. I remember one immigration attorney colleague of mine said, “Oh, it’s fake date day, and we both just kind of laughed because we know what fake date day is, right? I mean basically, they’d just pick a date and just put that on a bunch of NTAs. People show up for court because they do care, but then when they don’t have a court date, not really, what does that say about the process? What does that say about fairness? A lot of these people take off work. A lot of these people have to pay for transportation. A lot of these people spend a lot of money appearing for fake court. And so, that’s a problem.

Jacob Tingen: There are other problems in terms of scheduling immigration court hearings. People are supposed to be receiving notice of hearing at least 10 days before hearing. We’re seeing with our clients that sometimes the court will issue notice of hearing less than 10 days prior to a court date. We’ll have people get a notice of hearing the day that they have to show up for a hearing. You know, it’s two hours away and we’re in Richmond. These are the kinds of problems that immigrants are facing. We’re still seeing today. I mean, it’s been more than a year since Parada and we’re still seeing that people are coming from the border with either it’ll say to be determined on the notice to appear, so they’re not even bothering to put even a fake date, or we’ll see occasionally fake dates. It’s alarming that this would pass as an okay standard operating procedure when it’s clearly not.

Jacob Tingen: Fake court dates are being issued in immigration court. Really? Is this really happening? Sadly, the answer is yes. Can this possibly lead to fair results for any immigrants? No, of course not. If a police officer gave you a ticket for speeding and said, “By the way, I need you to show up in core here locally,” and he gives you the sheet of paper and it has a spot for date and time and those are blank, what do you say to the cop? “Hey, you didn’t put a date and time.” What if he takes it back and writes, “Oh, okay, let me fix that,” and he writes, TBD on it, to be determined, and hands it back. Aren’t you going to be a little upset with that? Is that fair for you? Is that going to actually help you show up in court at any time? Of course not. This is a big problem and yet it is an ongoing problem and it’s a problem that immigrants face.

Jacob Tingen: That’s just a taste of what’s going on in immigration court today. I do have kind of a series of videos about immigration court that I’d like to share. We’ll of course see if we’ll start that series of videos or not depending on current events. Again, before I do these things, I typically Google immigration news, and and so far it hasn’t failed me. There has been virtually something different every single day. It’s been amazing.

Jacob Tingen: As a final note, I did want to give one quick update on the whole medical deferred action issue that was happening where they canceled deferred action for people, many of whom were children with life threatening illnesses and diseases. USCIS did reverse that policy and they are now again considering deferred action for children facing life threatening medical illnesses. That’s good news on the immigration front. It’s nice to be able to share that once in a while. It is bizarre that we had to have it canceled to begin with, but there you go.

Jacob Tingen: Once again, Nation of Immigrants, thank you for listening. Don’t forget to subscribe on YouTube, subscribe, follow on on iTunes, Facebook, Twitter, both the firm and my personal website, and, where we’ll be sharing helpful legal information and tips about immigration and a lot of other issues. Thank you so much for listening, and Nation of Immigrants.

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