As the Trump Administration Seeks to Remove Families, Due-Process Questions over Rocket Dockets Abound

Tuesday, July 30, 2019

In targeting migrant families for immigration enforcement, Trump administration officials have defended the operations being carried out by U.S. Immigration and Customs Enforcement (ICE) by saying these individuals have had due process and access to attorneys and interpreters.

Noncitizens who have truly had their day in court and been found to be removable—because they are here illegally and fail to qualify for relief from deportation, such as asylum—should be returned. This is vital for maintaining the integrity of the immigration system and discouraging future migration of people with less than legitimate claims. But the process must be fair, especially in the case of vulnerable populations. What we have seen in these circumstances is anything but.

Since last September, the U.S. government has operated accelerated dockets in ten cities to handle the rising number of cases of families in immigration court—the same locations where ICE was expected to launch major enforcement actions earlier this month. The threatened operations have not yet materialized to the level expected, likely because they were announced in advance by President Trump, in turn sparking civil-society mobilization and anxiety in immigrant communities across the country.

Nearly 17,000 cases have been completed on the accelerated dockets, with 80 percent resulting in in absentia removal orders, meaning the families were not in court when a judge ordered them removed. By regulation, immigration judges must issue in absentia removal orders if the Department of Homeland Security (DHS) has established that the foreign nationals are removable and that they received written notice about the hearing.

While at first glance this exceedingly high in absentia rate might suggest the migrants had gone underground and refused to appear, the reality is the system often hinders or even makes it impossible for them to appear, particularly on an accelerated docket. To blame? The complicated legal process and administrative weaknesses in the immigration court system, alongside the confusion migrants often experience in a foreign country.

The current operation of the immigration court system persistently flies in the face of U.S. principles of due process and equal justice. The formal notices to appear, which inform migrants of their court dates and obligations, are exclusively printed in English. And many migrants apprehended recently at the U.S.-Mexico border and released into the United States pending a future immigration court date have not been given these notices because border processing has been overwhelmed by crisis-level numbers.