NOI 25: U.S. Immigration Courts: Part 1

Today's episode marks a series of episodes about our immigration courts, what works well, what's broken, and how the Trump administration is responding to continuing record levels of immigrants at our southern border.

Jacob Tingen: Welcome again to Nation of Immigrants. Over the weekend we saw a lot of new people looking at some of our videos and listening in, so thank you for those of you who are new to this podcast and this video stream. I hope that you’re enjoying what you’re seeing and what you’re hearing about. Today we’re going to continue talking about something that’s come up a couple times. Immigration courts, and barring any kind of big immigration news, we’ll probably spend several episodes talking about our U.S. immigration courts and how they could be improved. So let’s get going.

Announcer: You’re listening to Nation of Immigrants.

President Obama: America is a nation of immigrants.

Announcer: A podcast about U.S. immigration law with your host, Jacob Tingen.

Jacob Tingen: So basically what got me thinking in the direction of our immigration courts and talking about our immigration courts today was an article that I saw titled, Trump’s New Border Courts Are Designed to Fail. I don’t know if that’s the case but it seems like a reasonable conclusion, to be completely honest. I mean, clearly, the Trump administration in their rhetoric and also their political positions have taken a very, very stark, very strong opposition to immigration in general, not only illegal immigration but also legal immigration. There’s opposition to all kinds of immigrants generally. Period. And so it stands to reason that the level of effort put towards creating an impartial and fair judicial system, it just doesn’t seem like they’re putting forth a lot of effort or attention to making sure that people get a fair shake.

Jacob Tingen: So we’ve talked about different immigration court stuff before. We’ve talked about the backlog. We’ve talked about tent immigration courts that have been propped up at the border, and so this is a bit of a return. This episode will be a bit of a return to the tent immigration court phenomenon and we’ll just talk a little bit about some specific challenges that people are facing. So this is apparently written by some lawyers who are working with some of these asylum applicants. Some of these remain in Mexico, asylees who are waiting for a chance to enter the United States but have been told that they have to stay in Mexico while we make a decision on their asylum claim.

Jacob Tingen: Now, to get into how proceedings work. Typically, when you are placed in removal proceedings, you’ll have maybe one, maybe a couple, maybe a handful of what are known as master calendar hearings. And the purpose of those hearings is for you to present your case. You attend a court and the judge asks, “How are you pleading to the NTA,” which is a document called the Notice to Appear. We’ve talked about this also. So, basically, the immigrant, through their attorney, responds to the Notice to Appear and it has four factual allegations that says things like, you’re not from the U.S., you’re from another country, you don’t currently have the appropriate documentation, and then it has a charge of removability. And so you have to admit or deny the allegations and concede to the charge of removability. You can designate a country that you’d like to be removed to in the event that you don’t get approved for asylum. So all of these things are happening.

Jacob Tingen: Anyway, at the master calendar hearing you plead to the NTA and then after, for example, you concede removability, you say, “Well, I guess all those factual allegations are true. I guess I am here unlawfully and I guess under our laws you have a right to deport me.” At that point the client is then given an opportunity, obviously through counsel again, to present an application for relief from removal. And so then application can take a couple of forms, but what’s popularized right now and what we’ll focus on is asylum, okay? So, those people then present an asylum case. Well, given court backlogs, for those who are presently in the country and applying for asylum, I mean we’re scheduling cases out to 2023 on the Arlington Immigration Court and there are similar backlogs in courts all across the country.

Jacob Tingen: So the interesting thing about all of this is that there’s this frankly inefficient process of master calendar hearings. I mean, I frankly can’t imagine why we can’t just put this on some kind of online system and have our lawyers enter appearances online and then just upload documents and select a court date, thus clearing the calendar of master calendar hearings, and I could see a system that would allow you to schedule a master calendar hearing if you have a unique issue to bring up before you have an actual individual hearing.

Jacob Tingen: But anyway, so that’s master calendar hearings, which is essentially, we look at the calendar, we see what you’re going to do with your case, how are you going to defend yourself against removal, and then we’re going to pick a date on the calendar, master calendar hearings, that’s the entire point of the hearings. Procedurally, it’s similar to the way a lot of other courts work where, okay, so we’ve got a lawsuit that started, we’re going to come, just deal with some preliminary issues before we set a date for a trial. So it’s not uncommon, but in the specific context of immigration, given the backlog, it seems pretty inefficient.

Jacob Tingen: So then the next kind of hearing, generally, that you’re going to find available are what’s known as individual hearings or merits hearings. And basically at the master hearing, you would present, let’s say for example, an asylum application, and then you have to come back for an individual hearing, a merits hearing. We’re going to hear your application on the merits, we’re going to look at evidence, we’re going to listen to testimony, we’re going to consider country conditions in the context of your asylum claim, and then the judge will make a decision after gathering all of these facts. And, of course, you have an opportunity to be represented by counsel and the U.S. government is represented by counsel through the Office of Chief Council, the Department of Homeland Security, which is a mouthful. So everybody gets a chance to present their side and then the judge should make an impartial and unbiased decision. At least, that’s how it’s supposed to work.

Jacob Tingen: Well, okay. So what’s happening in the tent courts? Well, because these people have to remain in Mexico, they have very limited access to attorneys. So, these people come in, they’re, I guess, approached, or from what I’ve been able to tell from the news articles, it seems like, procedurally, they get an appointment, they come to the border and at which point border agents take them into the tent court. They bring them across the U.S. border and into the tent court, or I guess it appears that sometimes they’re not just tents but also maybe trailers. They’re brought in to the court and then it’s not actually a courtroom. They’re video conferenced into one of the nation’s courtrooms throughout the country. The DHS attorney, so the opposing counsel, is in the courtroom with the judge, and I assume if you have an attorney in that courtroom, that maybe that attorney, that private attorney, could appear in the courtroom also where the judge is video conferencing to you.

Jacob Tingen: But, interestingly, the article I read, has this group of attorneys who’s working with people and then goes to the tent court with them. And so that’s what I wanted to talk about is, is this a fair and impartial process? I think at first blush, listening or reading to what these attorneys have to say, in no way is this a fair and impartial process. It says here, “At every step of the way refugees and the handful of attorneys who represent them are reminded that ‘the system’, in quotes, is designed to fail. There’s no marked entrances to the Brownsville court, which resembles a concentration camp in its design and layout. Instead, attorneys just have to know where the entrance is and ask to be let in a by privately contracted guards who monitor for DHS.”

Jacob Tingen: Now, it goes on to talk about how they have to pass through security and how they can’t bring in any electronics. That can be common for courts, but it’s also common for attorneys to be able to say, “Hey, well, you know, I need to calendar my next hearing. Can I please bring in some electronics?” And it mentions having to ask for a quick recess with the judge so that the attorney can exit the court, go to their car, check their calendar, come back into the court, go through security again and come back. It seems a little absurd, that level of security. It’s not required. And I also might add, it doesn’t appear, at least based on what I’ve been reading, that these are actually government workers. These are contractors, which means our government is paying out probably huge fees to private contractors to manage all of this process. But you know, hey, if you’d like to use tax payer dollars this way, that’s your call.

Jacob Tingen: And then it also mentions how not everybody is represented in this context, clearly, and so they’ll bring in a group of people who will receive a group advisal of their rights in the immigration court. This isn’t an uncommon scenario. I’ve seen it at our established immigration courts in Arlington where sometimes we’ll get a new judge who will get just a large case load of new master calendar hearings and they’ll say, “Hey, look, this is how I’m going to manage my court room. I need these documents and these kinds of things.” And the judge will speak to everyone in the courtroom as a group before addressing individual cases. But what’s interesting here is it mentions that a group advisal is given, an interpreter is also appearing via video conference, and I guess, just the assumption is that it’s only interpreted in Spanish, whereas many people coming from Guatemala in particular don’t speak Spanish. Sometimes they speak indigenous languages. And so, how is that a fair or impartial process for them?

Jacob Tingen: And then what’s interesting is that it seems that as soon as the hearing’s over, the contracted guards try to get counsel out of the courtroom immediately and they don’t really give an opportunity for the lawyers to visit with their clients. Now, you might say, “Well, what’s the big deal? Why can’t they just visit with their client outside of the courtroom?” And then the article goes on to talk about this, which I just found fascinatingly terrifying in a way, “To meet with clients, attorneys must violate State Department’s travel advisories which categorize Matamoros as a Level 4 security risk.” So, that’s some interestingly strong language, attorneys must violate the state of… You know, there’s no such thing as violating a travel advisory. The State Department publishes travel advisories and says, “Don’t go to certain places.”

Jacob Tingen: So where some of these clients are being told to remain in Mexico is a very dangerous place, acknowledged by the U.S. Department of State, right? And so Matamoros is a Level 4 security risk, which is the category reserved for the most dangerous places on earth, including active war zones like Syria. So, it’s not a safe place. If I have to go visit my client at Matamoros, I am risking life and limb in a way, because who knows what’s going to happen? “As volunteer attorneys we’re allowed to cross the border exclusively in a group during daylight hours. We conduct our work within a hundred yards of the border crossing point, which makes client confidentiality impossible.” And that’s a legitimate concern. I mean, I have an opportunity to meet with my clients in a private office and that’s a good thing. That preserves their right to counsel and that’s what right to counsel is, is that expectation of privacy and confidentiality as well.

Jacob Tingen: But basically they just… It’s not logistically possible with them remaining in Mexico and in particular in Matamoros, which the State Department considers a Level 4 security risk. But here’s just what’s wild, is it says, “In case of cartel violence, we were instructed to drop everything and sprint for the crossing at our group leaders signal.” So they acknowledge that it’s likely or possible that cartel violence could just erupt while lawyers, U.S. lawyers, are meeting with U.S. asylum applicants. Okay? “The harms refugees suffer due to our official U.S. government policy of rendering them homeless,” because they don’t have a place to stay against the border and if they try to relocate somewhere else, how can they get to their court proceedings? Says, “… includes deaths by drowning in the Rio Grande, even while just bathing. Multiple documented instances of kidnappings within a minute or hours of being returned from the U.S. The toll of surviving the streets of Mexico is amplified by the due process, farce, refugees face in these courts.”

Jacob Tingen: So, that’s what’s happening at our border courts. And we’ve talked about some of the reasons why these border courts have been set up in the first place. And I guess the next question comes is, “Well, are our non-border courts any more fair than this?” I think so. I think so. But there are definitely concerns in our immigration court system that need to be addressed and there are things that I expect to address in the next couple of weeks.

Jacob Tingen: So, look for episodes on our U.S. immigration courts and what that process is like. The challenges that immigrants face, the challenges that attorneys who represent them face. And we’ll be back with more from Nation of Immigrants. Thanks.

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President Obama: America is a nation of immigrants.

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