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Do Immigrants Enjoy Due Process in Deportation Cases? Not Exactly

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John Kelly Thinks Immigration Judges’ Orders Should Be Final, Thomas Homan Thinks Immigrants Get Due Process; Here’s Why Neither is True

Donald Trump is enacting his mass deportation agenda, and many of the people being deported fit a specific profile: they are mothers and fathers who have committed no major crimes, they’ve often been checking in with ICE for years, and they have a prior deportation order. The Associated Press has reported that ICE is tracking nearly 970,000 immigrants with prior deportation orders, 82% of whom have no criminal record.

The vast majority of these immigrants have done nothing to deserve deportation. Many have strong ties to their communities, pay their taxes, and have raised families. Most dream of documenting their immigration status, but can’t because they’re caught in the web of an outdated, rigid immigration law.

But there’s one person who could stop their removal: John Kelly, Secretary of the Department of Homeland Security. In fact, it’s part of his job to exercise discretion on immigration cases, to determine who he wants to spend resources deporting, and to enact priorities for his agents at ICE and CBP to follow.

Except, apparently, Kelly doesn’t see it that way. Misinformed about his job, Kelly seems to think that orders of deportation from judges must be the final word, and considers them edicts that he has no choice but to carry out. As Kelly recently told the House Judiciary Committee, “When an immigration judge says you’re out of appeals, ICE takes you into custody. We can’t ignore that.”

His deputy, ICE acting Director Thomas Homan, elaborated further to the House Appropriations Committee, repeatedly claiming that immigrants with deportation orders should be removed without further question because they’ve already enjoyed due process:

Aliens who are subject to the removal process under law receive extensive due process at great expense to the American taxpayer. If an alien is given notice to appear, they have a judge at taxpayer expense. They will have an interpreter at taxpayer expense. If they claim fear of returning to their home country, they will have every opportunity to pursue that claim…however, once an alien has pursued the extent of their due process rights, and a federal judge issues a final order of removal, it is ICE’s job to enforce that order.

But the premise here is wrong: the majority of immigrants who have a final deportation order haven’t had a chance to properly argue their case in court. That’s why final discretion on immigration rests with John Kelly, and not with the immigration judges who hear their cases.

Why immigration hearings are “big question mark” for due process

In carrying out prior deportation orders, Kelly (and Homan) are claiming that immigrants have had their day in court, that they’ve had due process and the chance to be heard, an immigration judge didn’t see fit to let them stay, and so they must be removed. But there are tons of reasons why someone may be handed an order of deportation when they didn’t deserve one, or why they lost a plea to stay when they might’ve won. Some of these reasons:

  • They never received the order to appear in court (sometimes it is mailed to the wrong address, or someone else failed to pass the order onto them) and a judge ordered them deported in absentia. Many people don’t even know that deportation orders exist for them until they’re detained by ICE.
  • They had no legal representation and didn’t understand they had to appear in court, or they were unable to convincingly argue their cases alone. Nationally, only 37% of immigrants are able to hire an attorney to represent them in court, which the number being much, much lower in many jurisdictions.
  • They had bad legal representation who didn’t tell them they had to appear in court, or their legal representation presented a poor case for why they should be allowed to stay.
  • They were unlucky and appeared in front of a judge disinclined to grant a stay of removal. Between 2011-2016, some immigration judges approved virtually everyone who came before them petitioning for asylum, while others approved zero.
  • They received a deportation order years or decades ago, when attitudes toward immigration were different. Or a judge issued an order of deportation for a minor crime committed years or decades ago; Congress occasionally adds new and retroactive offenses to the list of crimes eligible for deportation.

When it comes to prior deportation orders, there’s a “big question mark next to every case,” as immigration attorney David Leopold said. The fact that there’s a court order on a deportation case does not mean that due process occurred.

Immigration cases are civil, not criminal, and immigrants have no absolute right to legal counsel.  While the law requires immigration judges to give immigrants a list of legal service providers, most of the agencies are overloaded and cannot provide representation to indigent immigrants.  

And going it alone in immigration court is a dangerous minefield for immigrants. Immigration law is convoluted – it’s been said that immigration law is second only to the IRS tax code in complexity. A non-lawyer, or even an unseasoned lawyer, couldn’t know all the provisions of the law that can be cited in favor of letting someone stay.

Immigration courts are incredibly backlogged, with some cases currently being scheduled for 2022, meaning that judges only have a few minutes of time for each respondent. The government, on the other hand, always has a lawyer present, usually well-versed in immigration law, and often in good rapport with the judge as they are in the same chamber every court day. And once a judge hands down a deportation order, the appeals process is daunting, especially for someone who has no attorney.  Deportation orders are often not properly reviewed by the Board of Immigration Appeals or the federal courts.

How immigration court fails immigrants: cases

In Michigan, Jose Ricardo Valle Rodriguez faces deportation to El Salvador, potentially leaving behind his wife and 2-year-old son. Jose came to the US fourteen years ago, when he was 17, and tried to apply for residency through an immigration court. But the court entered his zip code wrong, and a judge issued a deportation order when Jose didn’t show up for his hearing. ICE didn’t pick him up until May of this year, and his family fears that he’ll be returned to a country where gang violence is prevalent and some members of his family have been murdered.

In Iowa, the state Supreme Court has overturned an appeals court decision regarding Roberto Morales Diaz, who has lived in the US for more than 10 years and has a young US-citizen daughter. In 2013, he was questioned by police following a domestic disturbance, for which he decided to plead guilty to a misdemeanor which resulted in his deportation. Roberto, however, has since argued his lawyer failed to advise him that pleading guilty would lead to his removal, and that he was denied his right to effective assistance of counsel under the Sixth Amendment.

In Texas, Rep. Sheila Jackson Lee (D-TX) is calling on the Trump Administration to reopen the case of Jose Escobar, who was deported in March despite having no criminal record and temporary protection from removal. Jose had been in the country for 16 years, had a work permit, has a 2-year-old daughter, and checked in with ICE annually. His mother sent for him when he was 15, and Jose (being from El Salvador) qualified for temporary protected status. Because Jose was a minor, his mother assumed his permit would automatically renew when she applied for hers. It didn’t; the family moved, and Jose didn’t receive the paperwork informing him he’d missed the deadline for renewal. By the time he figured out what happened, it was too late, and he had lost protected status. His lawyer told him not to appear at his court hearing, fearing he would be deported – and the judge ordered him deported in absentia.

In California, the East Bay Express sat in on a number of deportation hearings, and their article is an illuminating read on what happens in immigration court. Over and over again, immigrants are issued deportation orders as they appear on a video conference screen instead of in person. They are ordered deported because they don’t have a lawyer who can cite provisions of the law that would allow them to stay, because they don’t understand there are circumstances in their case that might allow them to stay, and sometimes because they’ve been left to languish in immigration detention for months and desperately want to leave through any avenue possible. (In one case, a man who cannot speak English has been detained for nine months. When his case comes up before the court, there is no interpreter, and he is shuffled away to be further detained for an unknown amount of time.) Meanwhile, the ICE attorney is there, quipping and laughing with the judge. One case in the article involves Cruz Rodriguez, a detained man who appears without a lawyer:

[Immigration Judge Anthony] Murry floated the idea of continuing the case for several more weeks, to give the man time [to find a lawyer]. Flipping through his case file, Murry told the ICE attorney that it appeared Rodriguez was “eligible for doing away with the removal.”

But then, just before Murry could break this good news to Rodriguez, the ICE attorney interrupts: “He’s not eligible.” The lawyer cites an obscure section of federal code. Murry pauses and thinks deeply. “Interesting,” he says.

He then tells Rodriguez that he can’t apply for cancellation of removal after all. Just like that, and without a defense attorney’s input, a potential route to relief is closed, and other alternatives aren’t explored.

The immigration court system is overloaded, underfunded and understaffed.  It’s no surprise that many of the immigrants who find themselves before immigration judges end up at the wrong end of a final order of deportation.  

That’s why Secretary Kelly is wrong to use the immigration court system as an excuse to avoid exercising prosecutorial discretion in cases where deportation is just plain wrong.  His job description includes protecting the American people from security threats.  It’s difficult to see how deporting moms, dads and grandparents makes us any safer.