The Justice Department is requiring some immigrants facing deportation to file to stay in the United States in a matter of weeks, a highly unusual move that puts them at a disadvantage and at an increased risk of removal.
Immigrants fighting deportation generally have a chance to make their case in court, where they can ask a judge to allow them to stay in the US by arguing they qualify for asylum or another legal option.
This year, as the coronavirus pandemic gripped the US, the nation’s immigration court system – which is operated by the Justice Department – partially shut down, leading to the postponement of hearings and fueling the growing backlog already facing the system. As of August 2020, the current active court case backlog grew to around 1.2 million, up 11% from the start of March, according to Syracuse University’s Transactional Records Access Clearinghouse, which tracks immigration court data.
But as of late, despite the challenges posed by the pandemic, immigration attorneys have begun to see a slate of orders requesting that their clients file applications requesting relief from deportation within around five to six weeks. If the deadline is not met, a judge could issue a removal order, meaning they’d be subject to deportation at any time.
Victoria Neilson, a managing attorney at the Catholic Legal Immigration Network, called the orders “disturbing” and “politically motivated.”
“The intended result appears to be to increase deportation to even people who have every intent of filing an application with an immigration court. For some people, their next court date is not for many months or a year into the future,” she said.
Over the course of Donald Trump’s presidency, the administration has overhauled the US immigration system, making an already complicated process more difficult to navigate and succeed in. And in the waning weeks of Trump’s time in office, his administration has continued to press forward with policy changes, including the release of regulations tightening asylum and ramping up asylum agreements with Central American countries.
The latest move by the Justice Department’s Executive Office for Immigration Review has left attorneys scrambling, particularly those representing migrant children.
“These out-of-the-blue type orders leave vulnerable children and their attorneys without adequate time to take the steps necessary to prepare and submit, to optimally prepare and submit applications for relief,” said Jason Boyd, director of policy at Kids in Need of Defense, which provides legal services to migrant children. “In that respect, these orders fly in the face of fundamental fairness.”
Children have also typically been afforded more time to prepare.
“On account of mail delays and other factors, many of these children have been left with approximately three weeks to submit applications with potentially life and death consequences,” Boyd said.
The Justice Department has not responded to a request for comment.
In one instance, a scheduling order for a child who arrived in the US unaccompanied signed on October 29 says an application must be received by December 1, according to a copy shared with CNN.
“An application for relief was due at a master calendar hearing that was adjourned due to COVID-19,” the order reads. “The Court hereby issues a new firm deadline for the Respondent to submit any and all applications for relief.” Failing to submit by the deadline, the order continues, could result in a removal order.
Generally, deadlines for applications – which can take time to prepare and work their way through the system – are set out during court hearings. Meeting the deadline could also narrow the options that an individual is eligible for, since not all forms are granted by immigration court, some also go through US Citizenship and Immigration Services, which might take longer to process an application.
In some cases, requests for applications are coming in months before an individual’s next court hearing. “In all of the cases, there’s some scrambling happening to make sure we’re doing the best even though we don’t feel this is right. We still have to comply with a judge’s deadline,” Claire Doutre, Houston managing attorney at Kids in Need of Defense, told CNN.
Attorneys also told CNN that the orders that have so far been received have been signed by supervisory judges, not judges assigned to the case who would be more read in on the details of an individual’s situation and usually decide how much time a person is provided.
“The judges are finding out that the cases have been pulled behind their back and orders have gone out. And it’s not clear what’s going to happen next,” said Judge Ashley Tabaddor, president of the National Association of Immigration Judges.
“There’s nothing unreasonable about revisiting them and looking at it what would be appropriate. The problem is that it’s being done as a one-size-fits-all by the agency, outside of the judge. It’s a direct interference,” she added.
Early on, migrant children in government custody attended deportation hearings despite the pandemic, at times leaving kids to face the proceedings without an attorney physically present with them.
