A new Department of Justice memo ordering U.S. immigration courts to expedite the cases of all immigrants currently held in detention centers is setting off alarm bells with immigration advocates and attorneys who say it will undermine due process by allowing children, asylum seekers, and longtime permanent residents to be deported more easily.
The memo, obtained by VICE News and issued on Jan. 31 by MaryBeth Keller, chief immigration judge for the Executive Office for Immigration Review, instructs all immigration court judges, administrators, and staff to expedite the scheduling of immigration court dates for “all detained individuals.”
Issued a week after President Donald Trump ordered law enforcement to recalibrate the country’s immigration “enforcement priorities,” the memo also mandates rapid case processing for children in government custody who do not have a parent or guardian in the U.S., people facing deportation who have been released on bond, and recent illegal border crossers who were briefly detained and then released.
America’s immigration jails are already operating beyond capacity due to an influx of people fleeing violence in Central America, and the memo has been interpreted by some as an attempt to free up space by quickly scheduling court hearings to determine whether detainees should be deported or allowed to stay in the U.S.
Advocates note that immigrant detainees do not have the right to a court-appointed attorney, and that 86 percent of them lack legal representation. Because most detainees are poor and do not speak fluent English, they are virtually powerless to defend themselves in court, said Karen Lucas, associate director of advocacy at the American Immigration Lawyers Association.
“If you are a detained individual, there’s only a very, very slim chance you’d ever get to talk to an attorney,” Lucas said. “You’re at your most vulnerable. You’re not in a position to know your rights or assert your rights. This is a deeply troubling development.”
Asked about the concerns expressed by immigration attorneys over the memo, Kathryn Mattingly, a spokesperson for the Executive Office of Immigration Review, said in a statement that the office “remains committed to holding fair and expeditious hearings, with due process to all respondents who come before the court.”
Mattingly said the memo offers “short-term solutions to manage the growing caseload with the resources the agency has available,” and that the new priorities reflect “the present state of the immigration system.”
The immigration orders that Trump issued on Jan. 25 include language that suggests the administration intends to put more immigrants behind bars, especially ones caught crossing the border illegally. The orders call for an end to a policy that Trump calls “catch and release,” where some unauthorized border crossers are briefly detained before being released with orders to return to court at a later date. Trump seeks to have those people locked up indefinitely.
Amy Fischer, policy director at the Refugee and Immigrant Center for Education and Legal Services, said the people most affected by the latest policy change will be Central American asylum seekers. Keeping these individuals detained, Fischer said, makes it much harder for them to find legal help and effectively argue they have the right to stay in the country.
“It’s setting them up for failure,” Fischer said. “We are interpreting this as a fast track to deportation for everyone who is detained, and that’s immensely dangerous.”
The memo orders immigration officials to immediately cease using the “case processing priorities” set by the Obama administration in March 2015. Those priorities included the fast-tracking of cases for children and families who were apprehended while crossing the U.S.-Mexico border. This so-called “rocket docket” primarily affected individuals from El Salvador, Honduras, and Guatemala, and was intended to discourage them from coming to the U.S. under the assumption that they would be allowed to stay for years while their cases worked their way through the clogged immigration court system.
The system came under heavy criticism because it led to young children representing themselves in immigration court. A report from Syracuse University’s Transactional Records Access Clearinghouse found that, as of Sept. 2016, nearly 40,000 immigration cases had been rushed through the rocket docket — and 43 percent of the juvenile cases involved kids who had no access to legal representation.
Lucas applauded the new rules for eliminating the fast-tracking of most cases involving unaccompanied minors, but expressed concern over the fact that the policy singles out perhaps the most vulnerable group of kids: Ones who arrive at the border alone, with no parent or guardian available to care for them in the United States.
“It is doubling down on a strategy of rushing even vulnerable children through a system that does not guarantee they can have a lawyer by their side,” Lucas said. “It is undermining the integrity of the immigration court process.”
The memo also affects a group of immigrants who have a case pending before the Supreme Court. In all but two federal jurisdictions, immigrant detainees do not have the right to go before a judge and receive a bond hearing, which determines whether they are eligible for release while their case is decided. The memo orders immigration courts in the two jurisdictions that currently allow for bond hearings to fast-track the cases of people who have been cleared for release. In most cases, those individuals are asylum seekers or longtime permanent residents fighting deportation. The ACLU is suing the government to require all jurisdictions to offer detainees bond hearings within six months of being jailed.
Lenni B. Benson, a professor of immigration law at New York Law School, said it’s troubling that the memo targets people who have been released on bond, since a judge has already determined that they do not pose a threat to their community and are not a flight risk.
“You’re punishing people who are acting on their constitutional right to be freed from civil detention,” Benson said. “Your case goes ahead of someone who might have been in the pipeline for two or three years but was not put in detention. It looks to me like punishment for asserting your rights.”
The memo doesn’t explain why certain groups are prioritized over others, and concludes by saying “further guidance may be forthcoming.”
Additional reporting by Tess Owen
Cover image: Alfredo Estrella/AFP/Getty