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Setting the record straight: Real talk about immigration courts

The Trump administration’s recent “fact sheet” on U.S. immigration proceedings excludes critical information about the immigration system and only serves to spread misinformation and distrust of immigrants and asylum seekers.

The document, issued by the Department of Justice’s Executive Office for Immigration Review sparked former immigration judges and members of the Board of Immigration Appeals to object to such “political pandering” that makes a mockery of the agency’s obligation to ensure full and fair resolution of immigration cases. The document’s claims have also been rebutted by advocates and the media. What’s more, at the SPLC’s Southeast Immigrant Freedom Initiative, our clients and attorneys have witnessed the routine abuses of a court system increasingly bent on deporting individuals rather than administering justice.

Because Americans deserve the truth, here are some real facts about the immigration courts.

FACT #1:

Asylum seekers and other immigrants are entitled to due process in their immigration court proceedings.

The Trump administration, however, is weaponizing the immigration court system, transforming it into a tool for deportation. Since Trump took office in 2017, his attorneys general have taken numerous actions to achieve this goal.

Trump’s attorneys general have unlawfully attempted to gut protections for asylum seekers fleeing domestic abuse and gang violence. LGBT asylum seekers have also seen protections threatened. Asylum seekers whose persecutors target them because of their families have also seen attempts to erode protections for them.

Immigrants in removal proceedings now face a huge burden to qualify for deadline extensions for collecting evidence or finding a lawyer.

The administration has stripped away asylum seekers’ ability to ask an immigration judge for release from detention, giving the Department of Homeland Security the power to indefinitely detain them.

The administration discarded an important docket management tool for immigration judges called “administrative closure,” which allows a judge to pause cases when and immigrant has an application for immigration benefits pending.

FACT #2:

In response to new case quota requirements, immigration judges are compromising their ethical obligations and violating immigrants’ due process rights.

Detained immigrants sometimes have only weeks to find an attorney or complete asylum applications on their own. They must somehow communicate with their family and friends to mail evidence, sometimes internationally, to the detention center. Even if the mail arrives at the detention center, Immigration and Customs Enforcement or private contractors routinely fail to deliver it to detainees.

Despite these obstacles, judges determined to complete a case and meet their case quota may deny asylum claims because evidence simply did not arrive within the time allotted. Unsurprisingly, the case quotas have been denounced by National Association of Immigration Judges, the American Bar Association, and the American Immigration Lawyers Association.

FACT #3:

People in immigration court proceedings are often fighting for their lives, but often have to fight their cases alone.

Many detention centers are in remote, rural towns where detainees struggle to find local attorneys. Unlike criminal court, immigrants are not guaranteed an attorney at government expense. To apply for asylum, people must complete a form [Form I-589] in English. The Office of Executive Review does not provide versions in any other languages and will not accept applications completed in a language other than English.

As a result, detained immigrants are at the mercy of the detention system. They must pin their hopes on either finding an attorney or a helpful detainee fluent in their language and English.

When immigrants appear in court, they may face hostile judges with little fear of reprimand due to the lack of oversight for immigration judges.

FACT #4:

Legal representation during proceedings makes a huge difference in outcomes for immigrants, including asylum seekers. Immigrants with counsel are more than 10 times as likely to succeed in their cases as those who represent themselves.

Asylum law is complex and convoluted. Federal courts have compared the complexity of immigration law to that of the tax code. Despite this complexity, immigration courts are willing to allow an asylum seeker to navigate it without the aid of an attorney, which may explain why a judge once described immigration court proceedings as litigating “death penalty cases in a traffic court setting.”

FACT #5:

The U.S. government is pressuring people to give up good immigration cases by subjecting them to prolonged detention under inhumane conditions.

There are better alternatives that keep immigrants in communities where they have resources such as legal representation and family support. The government, however, is engaging in torture of those who assert their right to present their cases, jailing more than 50,000 individuals for the stated reason of ensuring their appearance in immigration court. This money is boon for private, for-profit companies operating detention facilities. Once in detention, immigrants may face medical neglect, sexual abuse and abuse of solitary confinement.

Photo by Joe Raedle/Getty Images