There’s a scene in the iconic 1994 movie Clerks where Dante Hicks says to his friend and fellow slacker Randall Graves: “You hate people!” Randall responds, “Yes, but I love social gatherings–isn’t it ironic?” This is basically the opposite of my feelings towards the Asylum Office. The people are (mostly) great, but the organization is a disaster. Interviews are routinely delayed for years on end, decisions are delayed for months or years after that. The Asylum Offices rarely give sufficient notice before the interview, so there is little time to prepare, and the interviews themselves are often inefficient and interminably long.
In a recent post, I discussed Faiza W. Sayed’s bold ideas for reforming the Asylum Office and reducing the backlog (which currently stands at well over 1.3 million cases). But the more I think about it, the more convinced I am that the Asylum Office cannot be saved. It should be eliminated. (more…)
Data from the Executive Office for Immigration Review–the office that oversees our nation’s Immigration Courts–is notoriously unreliable. Nevertheless, we have to use what’s available. In that spirit, let’s take a look at EOIR’s statistics for Fiscal Year 2023 (which cover the period from October 1, 2022 to September 30, 2023) and see what we can learn. (more…)
Thanksgiving is the immigrant holiday because it is a day to remember and celebrate new arrivals in a new land, and friendship between immigrants and indigenous people. It is also the anti-immigrant holiday, since things did not end too well for the indigenous people in the original T-Day story.
These days, though, we need to take our good news where we can get it, and so in that spirit, I want to focus on the positives of Thanksgiving. In particular, I’d like to discuss some reasons for asylum seekers to be thankful. And yes, there are a few. (more…)
The Executive Office for Immigration Review (EOIR), the organization that oversees our nation’s Immigration Courts, has released new data about asylum grant rates by country of origin. While EOIR deserves credit for trying to be more transparent, it is difficult to know what to make of these numbers. They are confusing, poorly organized, and–for lack of a better word–strange.
Here, we’ll take a look at the data and try to parse some meaning from EOIR’s madness. (more…)
Question: Who do you think is more likely to deny an asylum case, an Immigration Judge appointed by a Republican president or an Immigration Judge appointed by a Democratic president?
As far as I can tell, no one has ever researched this question before; so our team of statisticians here at The Asylumist spent the last few months crunching the numbers, and we now have our answer. If you’re like me, you might find their conclusion a bit surprising. (more…)
Here’s one thing that seems clear about the management at EOIR–the Executive Office for Immigration Review, the office that oversees our nation’s Immigration Courts–no one who works there has ever represented a noncitizen in Immigration Court. How do I know? If the leadership at EOIR had any experience in court or with clients, they would not be implementing so many misguided, destructive, and ineffective policies that are doing great harm to immigrants, their attorneys, and even to DHS attorneys (the prosecutors in court).
The latest dumb idea involves an effort to administratively close cases where the respondent (the noncitizen in Immigration Court) may have some temporary or permanent relief available from USCIS. (more…)
It is not easy to convey the magnitude of the ongoing disaster at EOIR, the Executive Office for Immigration Review, the office that oversees our nation’s Immigration Courts. Simply stated, the agency is rescheduling and advancing hundreds–maybe thousands–of cases without notifying attorneys, checking whether we are available to attend the hearings or checking whether we have the capacity to complete the cases.
On its face, this appears to be a mere scheduling problem. But in effect, it is a vicious and unprecedented assault on immigrants, their attorneys, and due process of law. (more…)
The Department of Homeland Security (the prosecutor in Immigration Court) has been implementing new rules related to its “enforcement priorities.” These rules apply to people who have cases pending in Immigration Court, meaning that the U.S. government is trying to deport them. Not surprisingly, the government wants to deport some people more than others. Under the new rules, cases that are not a priority for removal may be dismissed as a matter of prosecutorial discretion or PD. When that happens, the government has stopped the removal/deportation process and the noncitizen is able to remain in the United States.
Here, we’ll talk about who might qualify for PD, the different types of PD, and how to request PD from DHS. (more…)
On September 24, 2021, Attorney General Merrick Garland announced that David Neal would take over as Director of the Executive Office for Immigration Review (“EOIR”), the organization that oversees our nation’s Immigration Courts and the Board of Immigration Appeals (“BIA”).
Director Neal was Chairman of the BIA, from 2009 to 2019, when he was apparently forced out by the Trump Administration. Mr. Neal also served as Vice Chairman of the BIA, Chief Immigration Judge, Assistant Chief Immigration Judge, Immigration Judge (“IJ”), and Assistant to the Director. Indeed, he comes to the Directorship with probably more and diverse EOIR experience than any prior director. To top it off, he has a Master of Divinity from Harvard University (and of course a JD, but those are a dime a dozen).
The new Director will certainly need to draw on his past experience–and possibly seek divine intervention–as the agency he is now helming is a real mess. Currently, there are more than 1.4 million cases in the Immigration Court backlog. I have not found recent data on the BIA backlog, but in April 2020, it stood at 70,183 cases. To address the court backlog, EOIR is staffing up–from 535 judges to a projected 734 by the end of the current fiscal year (September 30, 2022). We are also seeing an increase in online and training resources for respondents (noncitizens in immigration proceedings) and practitioners.
Even during his short tenure, Director Neal has begun to take some positive steps. Aside from the new resources, EOIR has ended case completion quotas for Immigration Judge and also signaled a willingness to work with the National Association of Immigration Judges (the judges’ union), which the prior Administration had tried to de-certify.
These are encouraging signs, and hopefully we will also start to see improvements related more directly to respondents’ cases in Immigration Court and the BIA. Luckily for David Neal, I am here to offer my own suggestions (and who doesn’t love unsolicited advice?). These are my ten great ideas for EOIR– (more…)
A few months ago, I wrote that what applicants and lawyers need from the Biden Administration is predictability. Unless we know what to expect from “the system” and when to expect it, people cannot properly prepare their cases or have them fairly adjudicated. Unfortunately, what we have been seeing recently is the opposite of predictability–it is chaos, at least at the Executive Office for Immigration Review (EOIR – the agency that oversees our nation’s Immigration Courts). Here, I will offer a few pieces of evidence in support of this proposition–
Exhibit A: The Immigration Court (or lack thereof) in York, PA
The Immigration Court in York, PA is located inside the York County Prison, which houses ICE detainees. After recent negotiations between the feds and the county failed to produce an agreement, ICE announced that all its detainees would be transferred to other facilities by August 12. With immigrant detainees set to leave York, EOIR informed court staff on June 30 that the Immigration Court would close by late July, and that all staff needed to take assignments at other courts (often in distant locations) or find new jobs. Besides being disruptive and demoralizing for EOIR staff (many of whom have been working in York for years, and have their homes and families there), the abrupt decision to close the court has left noncitizen detainees isolated from their families and their lawyers, and will make preparing their cases even more difficult. (more…)
The Master Calendar Hearing–where dozens of people are squeezed into a room and forced to wait for hours in order to talk to a Judge for two minutes–has always been a headache and a waste of time. Now, though, as the coronavirus pandemic continues unabated, attending an MCH seems downright dangerous (lucky for us, we have an associate attorney who covers our MCHs – Don’t forget to wash your hands when (if) you get back!). I’ve written before about alternatives to the MCH, and given the expanding pandemic and the need for social distancing, now seems a good time to re-visit some of these ideas.
Before we get to that, I should mention that MCHs are not the only place where groups of non-citizens are packed together against their will. Far worse are our nation’s ICE detention facilities and private prisons, where conditions were already quite bleak (in the two years before the pandemic, 21 people died in ICE custody). Unfortunately, ICE has not taken effective action to protect detained asylum seekers and other non-citizens from the pandemic (at one facility in Virginia, for example, nearly 75% of detainees tested positive for COVID-19), and the agency seems to have little regard for the health of its detainees (or staff). As a colleague aptly notes, Anne Frank did not die in a gas chamber; she most likely died from typhus, which was epidemic in her detention camp.
Also, it’s worth noting that the National Association of Immigration Judges (the judges’ union) has been working hard for safer conditions in our nation’s Immigration Courts, even if EOIR management has been hostile to some of those efforts. Currently, non-detained MCHs have been suspended, but so far, there is no EOIR-wide policy for what to do instead. Some Immigration Judges and individual courts have made it easier to submit written statements in lieu of MCHs, but the process is still needlessly awkward and time consuming.
MCHs are no more efficient today than they were in olden times.
While we need a short-term fix so that MCHs can go forward during the pandemic, here I want to talk about longer-term solutions. Below are a few ideas for replacing in-person MCHs. While these ideas may not work in all cases, they will help most respondents (and their attorneys) avoid attending MCHs. This would save time and money for people in court, and would also save time and resources for the courts themselves, and for DHS. In addition, reducing the need to appear in person would help prevent the spread of disease. In short, doing away with MCHs is an all around win. So without further ado, here are some ideas to get rid of those pesky Master Calendar Hearings–
e-Master Calendar Hearings: EOIR–the Executive Office for Immigration Review, the office that oversees our nation’s Immigration Courts–has been working towards electronic filing for decades, and in some courts, limited online filing is available. Given that the infrastructure is being put into place for online filing, EOIR should create an online MCH. There already exists a system for written MCHs, but this is a huge pain in the neck. It involves a burdensome amount of paperwork, and judges don’t always respond to the documents we file. This means that we lawyers do double work–we submit everything in writing and we have to attend the MCH. Given how unreliable it is, many attorneys (including yours truly) would rather attend the MCH than try to do it in writing.
An effective and reliable e-MCH would be easy to use and efficient. Most cases fit a clear pattern: Admit the allegations, concede the charge(s), indicate the relief sought and language spoken, designate the country of removal, and obtain a date for the Individual Hearing. For attorneys and accredited representatives who are registered with EOIR, this could all easily be accomplished through an online form, thus saving time for all involved.
Orientation Sessions for Unrepresented Respondents: One difficulty during the typical MCH is attending to unrepresented respondents. People who come to court without a lawyer tend to take more time than people who have attorneys. This is because the attorneys (usually) know what is expected at the MCH and are (hopefully) ready to proceed. For people without lawyers, the Immigration Judge (“IJ”) needs to explain what is going on, often through an interpreter. All this takes time and seems like busy work for the IJ (who often has to repeat the same litany multiple times during each MCH). Why not provide pre-MCHs with court staff instead of judges? There, unrepresented respondents can received a basic orientation about the process and be encouraged to find a lawyer. These sessions could be organized by language. Respondents who indicate that they will return with a lawyer can be given a deadline by which the lawyer can either submit the necessary information online (if e-MCHs have been implemented) or come to court if need be. Respondents who will not use a lawyer can be given a date to return for an in-person MCH with a judge. Even if e-MCHs are not implemented, having an orientation session would save significant time for judges and would make MCHs more efficient.
Empower DHS: In Immigration Court, the “prosecutor” works for the Department of Homeland Security (“DHS”). Most DHS attorneys are overwhelmed and overworked. They have little time to review cases in advance or to speak with opposing counsel prior to the MCH or the Individual Hearing. What if there were more DHS attorneys? What if we could pre-try cases, narrow issues, and maybe even hold depositions? If issues could be hashed out ahead of time, we could shorten or eliminate the need for a MCH, and we could make Individual Hearings more efficient.
All this seems pretty basic. The Immigration Courts are overwhelmed. Reducing or eliminating MCHs will free up judges to do substantive work. It will also save time for DHS, respondents, and their attorneys. And of course, given our new normal with the coronavirus, it will help keep everyone safe. Changes to the MCH system are long overdue, and are especially urgent due to the pandemic. Let’s hope that EOIR can finally rise to the occasion.
[Updates to this post will appear at the bottom of the article]
There is an overwhelming amount of bad news these days. You’ve probably heard about the coronavirus pandemic and the upheavals caused by racial injustice, but in the last couple weeks, there has also been a flurry of bad news in immigration-world. We could spend months dissecting all that has happened, but here I just want to alert you to the highlights (or low-lights) of recent developments. Without further ado, then, let’s get this over with–
(1) The Administration has proposed sweeping new regulations that would dramatically impact asylum seekers. The main targets of these changes are (as usual) asylum seekers from Central America and Mexico–people fleeing gang violence and domestic violence–and people arriving at the Southern border and requesting asylum. But the proposed changes affect all asylum seekers. For an overview, see this brief article and this more detailed analysis, both by Aaron Reichlin-Melnick.
The new rule seeks to block asylum seekers who passed through a third country to reach the U.S., who failed to pay taxes or worked without authorization, and who have more than one year of unlawful presence in the United States. It also allows judges to “pretermit” (deny) asylum cases where the applicant has not set forth a prima facia case for asylum (this will be a particular problem for pro se applicants, who may not know how to articulate a valid claim). The regulation also narrows the definitions of “particular social group” and “political opinion” in order to more effectively block people who face violence from non-state actors. Further, the regulation raises the bar as to what constitutes “persecution” under the law, and encourages denying asylum based on discretion. Many of these rules are meant to affect people who have already filed for asylum, and could not have known about these burdensome new regulations when they asked for protection. While my take on all this is not quite as negative as that of Aaron Reichlin-Melnick (I don’t think everyone who passes through a third country will be barred), there is no question that, if implemented, these regulations will block many otherwise-eligible applicants from receiving asylum.
With all the bad news, I thought we could use a photo of a funny monkey. Take a moment to enjoy. And then keep fighting.
One last point: These regulations are not yet in effect. There is a 30-day comment period and the regulations would go into effect sometime after that, assuming they are not blocked by a court. In the mean time, you can submit comments here (use reference number “EOIR Docket No. 18-0002”). Apparently, if more people comment, it will help delay the implementation of the rule, so please consider submitting a comment.
(2) Due to a massive budget shortfall, USCIS is set to furlough over 70% of its workforce by the end of July. The agency claims that its financial problems are due to the coronavirus, but most observers (including me) believe that the main reason is the Trump Administration’s anti-immigration policies, which have blocked or discouraged many people from seeking immigration benefits. Since USCIS is 97% funded by user fees, the dramatic drop in applications has left the agency broke. It’s hard to imagine how cases will move forward if so many workers are laid off. This means we can expect even longer delays for work permits, green cards, naturalization, adoptions, work visas, and many other types of immigration benefits. Exactly which services will be effected, we do not yet know, but it appears that USCIS has already suspended processing of most green card applications. Worse, the departure of so many experienced employees will likely result in long-term damage to the agency.
USCIS publicly claimed that it requested $1.2 billion from Congress and that it would pay back the money by increasing user fees by 10% (on top of other proposed fee increases). However, as of last week, “the Trump administration had still not made a formal request for any emergency funding.” One knowledgeable USCIS employee I spoke with believes that the Administration has no intention to request the money or save the agency. She believes that destroying USCIS is part of the Administration’s plan to cripple our immigration system.
You can sign a change.org petition to demand that Congress fund USCIS, so it can continue its mission.
(3) An Office of the Inspector General report revealed that the Executive Office for Immigration Review (“EOIR”), the office that oversees the nation’s Immigration Courts, had substantially mismanaged its budget for FY 2019. The OIG investigation was initiated after EOIR Director James McHenry sent an email inaccurately characterizing the state of the agency’s budget. The report found that “EOIR leadership failed to coordinate effectively with its budget staff,” that the agency failed to anticipate the cost of court interpreters even though it had the necessary information to project those costs, and that “miscommunication across EOIR” led leadership to miscalculate its expenses. The National Association of Immigration Judges (the judges’ union) characterizes the situation at EOIR as follows–
The mismanagement uncovered by OIG in yesterday’s report is only the tip of the iceberg of persistent systemic and structural failures at EOIR. EOIR has failed to implement an electronic filing system, failed to properly hire judge teams as instructed by Congress, failed to secure adequate space to properly run the court and has persistently shuffled immigration judge dockets resulting in the unprecedented backlog of over 1 million immigration court cases.
The judges also reference a recent TRAC Immigration report, which indicates that data released by EOIR about grant rates in Immigration Court is “too unreliable to be meaningful.” TRAC notes that “EOIR’s apparent reckless deletion of potentially irretrievable court records raises urgent concerns that without immediate intervention the agency’s sloppy data management practices could undermine its ability to manage itself, thwart external efforts at oversight, and leave the public in the dark about essential government activities.”
(4) Speaking of EOIR, in a court-packing move that would make FDR blush, Director McHenry offered buyouts to nine BIA Board Members appointed prior to the Trump Administration. Though the agency denies it, this was a clear effort to further stack the Board with Members favorable to the Administration’s agenda. Indeed, the move follows an earlier decision to elevate six Immigration Judges with unusually high asylum denial rates to the Board of Immigration Appeals. For more on the politicization of the BIA, check out this posting by Judge Paul Schmidt, a former Chairman of the BIA with first-hand experience of an earlier purge at EOIR.
(5) We have been hearing news on our immigration lawyer list serves about a possible expansion of the non-immigrant visa suspension and an additional attack on asylum seekers. Nothing is known for sure, but it seems the Administration is planning to ban some non-immigrant visas (H-1b, H-2b, L-1, and certain J-1 visas) for a limited period, and to limit OPT for F-1 students. Also, we are hearing about the possible “rescission of employment authorization for asylees, refugees, and TPS holders that would face significant legal hurdles” (the quote is from my list serve; it is not an official announcement, and it is strange, as asylees and refugees are entitled to a work permit under the law). We do not yet know what this means, but my best guess is that the Administration will try to block EADs for asylum applicants (not asylees) who have a one-year bar issue.
(6) While this is not (yet) bad news, we are anticipating a decision in a Supreme Court case where the Trump Administration is attempting to end DACA (Deferred Action for Child Arrivals), the Obama-era program created to protect from deportation certain people who arrived in the U.S. as children. As many as 800,000 people could be effected. Given how the Court has ruled in past immigration cases, I’m not optimistic about the result, but we will have to wait and see. I’ve written about asylum for DACA recipients here, though the new proposed asylum rules would greatly reduce this already difficult option.
(7) Education Secretary Betsy DeVos issued a rule barring colleges from granting coronavirus relief funds to DACA students. While Secretary DeVos claims that she is simply following the law as written by Congress, it seems that the law could have been interpreted to help the DACA students (and a substantial number of Congress people have protested the Secretary’s move). Since the pattern of this Administration is to harm the weak and vulnerable, it’s not surprising that Secretary DeVos interpreted the law in a way to exclude these students. The Secretary’s decision is the subject of a lawsuit, and so we will see what the courts decide.
Oy vey, That is more than enough for now. We can hope that courts will block some of these rules, but we also need to work to prevent a second term for this Administration, which has consistently lied about and attacked non-citizens and other vulnerable people. En la lucha!
Update from 06/17/20
AILA [American Immigration Lawyer Association] has been in contact with USCIS, Hill staff, and reporters to obtain additional information on USCIS’s current guidance for the processing of adjustment of status applications. From what we have surmised, the hold on adjustment of status cases applies to cases that are pre-processed by the National Benefits Center before being sent to local USCIS field offices and specifically the following cases:
“I-485 interviews”; and
“I-485 interview waiver cases not already distributed”.
However, “emergent or sensitive” cases, such as those related to COVID-19, may be referred by officers to leadership to determine if the cases can move forward. It is also important to note that some adjustment cases are adjudicated by SCOPS (including for example, asylum, diversity visa, EB-4, T, U and VAWA cases).
Based on member reports, adjustment of status applications continue to be approved in instances where interviews have been waived. Therefore, the “hold” seems to be in reference to those cases that require in-person interviews before a final decision can be issued.
A hold on adjustment of status interviews could appear to be consistent with the information that USCIS has released concerning its phased reopening of in-person services. Although USCIS began reopening field offices for non-emergency services on June 4, 2020, the agency announced that “offices will reduce the number of appointments and interviews to ensure social distancing.” As local USCIS field offices begin reopening, USCIS has prioritized in-person services for naturalization oath ceremonies and naturalization interviews and continues to handle emergency services. AILA expects that as more social distancing protocols are lifted, USCIS should begin resuming other types of interviews and appointments.
However, given the hold on “interview waiver cases not already distributed” it seems to indicate that USCIS has stopped actively making interview waiver determinations and adjudicating those cases. Based on conflicting reports we have received it is unclear whether this is a temporary pause on interview cases or on all adjustment of status cases at field offices.
Update from 06/18/20
First, the good news – The Supreme Court, in a 5-4 decision, has blocked the Trump Administration from ending DACA, thus (for now) protecting hundreds of thousands of people. The basic reasoning is that the Administration failed to follow the proper procedures needed to end the program. In short, the Administration’s maliciousness was defeated by its incompetence. This is a fantastic decision, and it shows that it is possible to defeat the Administration, even in the Supreme Court.
The other news is that we are receiving more information about the Administration’s plan to block asylum seekers from obtaining a work permit. There is still nothing official, but reports indicate that people who entered the country without inspection or who filed for asylum more than one year after arrival will be blocked from receiving an EAD while their asylum case is pending. Again, this has not been implemented or even officially announced, so we will need to wait for the actual proposal.
Update from 06/19/20
New regulations, which will officially be published next week, basically signal that USCIS will be taking longer to adjudicate EADs for people with pending asylum cases. I will review these after they are published, but it seems unlikely to make a big difference, given how unpredictable processing times already are.
The coronavirus is causing unprecedented disruptions to nearly every area of life, and the Immigration Courts are no exception. The courts were already in a post-apocalyptic era, with over one million cases in the backlog, and now the situation has been thrown into near total chaos. The fundamental problem is that EOIR–the Executive Office for Immigration Review, the office that oversees Immigration Courts and the Board of Immigration Appeals–is determined to continue adjudicating cases, even if that means risking the lives of its own employees; not to mention the lives of respondents, witnesses, and lawyers (and anyone who comes into contact with them).
EOIR is closing and re-opening various courts seemingly at random, often times with an after-hours Tweet, such as one last night at 9:23 PM, declaring that the Newark and Seattle Immigration Courts will reopen today for purposes of accepting filings and litigating detained cases (non-detained cases through April 10, 2020 have been postponed). In reaction to this latest news, Susan G. Roy, an attorney and former Immigration Judge (and my friend from law school – Hi Sue!) wrote last night–
NJ has the second highest number of corona virus cases in the nation, second only to NY. The Newark Immigration Court was closed because someone tested positive for the virus. Now a DHS attorney is fighting for his life in ICU, another attorney is very ill, and an interpreter has tested positive. These are the ones we know about. The Court was set to reopen on April 12. That is a reasonable time to ensure that everyone is safe and that the risk of transmission is limited. How is it even remotely reasonable to decide to open TOMORROW? Even if it is only for filings, court staff and others will be forced to violate the Governor’s Executive Order [directing all residents to stay at home], put themselves at great risk, and risk contaminating others, while many people who work in the same building remain under mandatory quarantine. You are ruthlessly jeopardizing the lives of your own employees, not to mention the public, for no legitimate reason.
There’s a new dress code at the Boston Immigration Court (and yes, this photo really is from the Boston Immigration Court).
And it’s not just advocates who are upset about EOIR’s decision-making. The National Association of Immigration Judges (“NAIJ” – the judges’ union) and ICE attorneys are also reacting with anger. In response to EOIR’s tweet reopening the courts in Seattle and Newark, NAIJ responds, “Putting our lives at risk, one Tweet at a time.” And Fanny Behar-Ostrow, an ICE prosecutor and president of AFGE Local 511, says of EOIR: “It’s like insanity has taken over the agency,“
One of our members recently had a detained master calendar hearing scheduled for this past Friday, March 20, at the Varick St. Court. In order to prepare the bond application and for the master, the attorney and his staff met with the client‘s mother. A request for a bond hearing, together with the required relief applications, and a request for a telephonic hearing, were hand delivered to the Court at noon on Wednesday March 18th, 2020. The attorney did not receive any response to the motion for a telephonic hearing, and repeated calls to the court that day and the next went unanswered. To ensure that the Court was aware of the request, the client‘s mother retrieved from the attorney‘s office, Thursday evening, a letter to the court confirming the request for a telephonic hearing. She traveled to the court in Manhattan, from Long Island, and delivered the letter to the Clerk, and thereafter waited in the waiting area with family members of other detainees and other attorneys who were compelled to appear.
Today we received confirmation the client‘s mother has been diagnosed with COVID–19 virus, through medical testing. Can you imagine the number of people she came into contact with as the result of the decision to keep this court open? In addition to exposing the attorney and office staff, she traveled from her home on Long Island, on the Long Island Railroad, to Penn Station, from there to the subway and ultimately to the Court. Undoubtedly she came into contact with, and exposed, countless numbers of people, who in turn exposed countless others.
Anyone with a basic grasp of the fundamental principles of epidemiology – easily garnered from watching CNN or the local evening news – understands how easily this virus spreads. Given this, the decision to continue to keep the courts open can only be construed as a conscious decision on the part of EOIR to subject our Immigration Judges, court staff, interpreters, DHS attorneys, institutional defenders, members of the private bar, our clients, their families, and all whom they come into contact with, to an unreasonable risk of infection, serious illness and death.
NAIJ echoes this sentiment: “With [New York] the epicenter of the virus, DOJ is failing to protect its employees and the public we serve.”
The appropriate path forward is painfully obvious. EOIR should immediately close all courts for all cases. Staff should work remotely when possible to re-set dates and adjudicate bond decisions (so non-criminal aliens who do not pose a danger to the community can be released from detention). That is the best way to protect everyone involved with the Immigration Court system and the public at large.
Finally, I think it is important to name names. The Director of EOIR is James McHenry. I have never been a fan. Mr. McHenry was profoundly unqualified for his job, having gone from supervising maybe half a dozen people in a prior position to overseeing thousands at EOIR. However, he was politically aligned with the goals of the Trump Administration and he got the job. I have previously described the functioning of the agency during Mr. McHenry’s tenure as maliciousness tempered by incompetence. But these days, it is more like maliciousness exacerbated by incompetence. And in the current crisis, incompetence can be deadly. It’s time for Mr. McHenry and EOIR to do the right thing: Close the courts now.
The Executive Office for Immigration Review (“EOIR”) recently announced a new way to check case status on-line. The system provides information about cases that are (or were) pending before the Immigration Courts and the Board of Immigration Appeals. According to the EOIR press release–
The automated case information application allows users to receive the most recent information about a case after inputting a unique alien registration number. Available information includes next scheduled hearings, decision information at the immigration court and Board of Immigration Appeals (BIA) levels, and court and BIA contact information. Immigration courts’ operating statuses are also included.
The new portal can be found here. By entering your Alien number, you can view your case information in English or Spanish. This new system is similar to the old EOIR telephone hotline (which still works–you can call 800-898-7180 to obtain information about your case). The online system provides similar information to the hotline, but in written format.
Easy access to court information is great, but maybe it could be a bit less public.
Overall, I like this online system better than the telephone hotline. It is more convenient and faster to use. It also includes some helpful information that the hotline does not provide, such as better court contact information and news about court closures (at the bottom of the portal home page). That said–and I hate to look a gift horse in the mouth–I do have a few quibbles with this shiny new toy (shocking, I know).
First, and maybe most significantly, when you enter your Alien number and go to the page with information about your case, you will see your full name displayed at the top. This makes me nervous. Maybe I am old fashioned, but I don’t like seeing my asylum-seeker clients’ names displayed for all the world to see (not to mention their A-numbers and information about their cases). I worry that information like this should not be so publicly available.
To be fair, you can’t access this information without the person’s A-number, and when you call the EOIR hotline, you can obtain essentially the same information already. It’s just that having this information available in written format somehow seems less secure. Also, because the online portal is so much faster than the telephone hotline, it’s not difficult to enter one A-number after another and get information about lots of random people. This is particularly easy since A-numbers are assign sequentially. So if you know one person’s number, you can change it slightly and find other (random) people’s names and numbers. Whether this information could be used for nefarious purposes, I do not know, but given the human capacity for mischief, I imagine it is a possibility.
Perhaps a partial solution here is to provide less information about the alien–maybe just the person’s initials. Whether that would provide much protection against bad actors, I am not sure, but it seems safer than displaying the full name. Another possibility would be to require users to enter their Alien number and their name in order to access the system. This would at least make it more difficult to gain access to random people’s information.
A second quibble is that the portal does not distinguish between removal, Withholding of Removal, and relief under the Convention Against Torture (“CAT”). In each case, the decision information will indicate that the person has been denied relief (in contrast, where a person has been granted asylum or a Green Card, the system will indicate that the Immigration Judge “granted the application”). This is the same information that is provided through the telephone system. Having talked to some government techies, I know it is not always possible to obtain more specific information from existing databases, but it would be helpful to know whether a person has been denied all relief or has been granted Withholding or CAT.
A third issue is that the online system does not provide any information about the Asylum Clock. This is surprising, since the telephone hotline does give information about the clock. For some asylum applicants, it is possible to get clock information from USCIS by entering the asylum receipt number (not the Alien number) here. But given this fancy new online system, it’s too bad that clock data is not included as part of the package.
Finally, and this is perhaps an unfair criticism, it seems to me that EOIR could do a lot more with this website. For example, it could include contact information for the relevant DHS office (you can find that separately here). It could indicate whether biometrics are current. Each individual Immigration Court has its own webpage (which you can access here) with information about office hours, staff, parking, and more. It would be nice if the portal provided a link to the relevant court’s webpage. Maybe it could also include links to local pro bono resources and to the Immigration Court Practice Manual. And if we’re really ambitious, it could include information about how to submit a complaint against an adjudicator, other court personnel or an attorney. Dare to dream.
One last point–the new portal is only useful if people know that it exists. Instead of all the mumbo jumbo on the Notice to Appear and the Immigration Court scheduling order, why not include a prominent (and I mean **PROMINENT**) link to the new online system? This new system is not bad (despite my kvetching) and it would be great if more people learn about it.
These days, anything resembling a positive development in immigration world should be celebrated. EOIR’s online portal is a helpful tool for immigrants and their advocates. I hope EOIR will continue to upgrade this system to make it more secure and more useful for us all.
EOIR–the Executive Office for Immigration Review–has proposed a fee increase for applications before the Immigration Courts and the Board of Immigration Appeals (“BIA”). The new fees purportedly reflect the cost of adjudicating the various applications that EOIR reviews, and include the following–
Increase the fee for Form EOIR-26 (Notice of Appeal from a Decision of an Immigration Judge) from $110 to $975.
Increase the fee for Form EOIR-29 (Notice of Appeal to the Board of Immigration Appeals from a Decision of a DHS Officer) from $110 to $705.
Increase the fee for Form EOIR-40 (Application for Suspension of Deportation) from $100 to $305.
Increase the fee for Form EOIR-42A (Application for Cancellation of Removal for Certain Permanent Residents) from $100 to $305.
Increase the fee for Form EOIR-42B (Application for Cancellation of Removal and Adjustment of Status for Certain Nonpermanent Residents) from $100 to $360.
Increase the fee for filing a motion to reopen or reconsider with the immigration court from $110 to $145.
Increase the fee for filing a motion to reopen or reconsider with the BIA from $110 to $895,
Also, the new fees include a $50 fee for asylum cases filed with the Immigration Court (I wrote about this previously after USCIS proposed a similar fee for asylum cases filed with that agency).
EOIR hopes to revive the tradition of paying your executioner.
As you can see, the new fees are significantly higher than the current fees. EOIR Director James McHenry justifies the fee increase as follows–
The proposed fee increases are marginal in terms of inflation-adjusted dollars and would mitigate the significant taxpayer subsidization of these forms and motions. EOIR is long past due for a review of its fee-based filings, especially as its caseload and costs have increased substantially since 1986.
As usual, Mr. McHenry’s comments reflect his lack of compassion for vulnerable immigrants, not to mention his tenuous grasp of reality. A 900% fee increase for BIA appeals is certainly not “marginal,” and will likely preclude many people from exercising their right to due process of law. Sadly, though, the rights of immigrants have never been a priority or a concern for Mr. McHenry, at least as far as I can tell, and so his comments are hardly surprising.
Now, to be fair, EOIR has not increased fees for 30 years, and so a review of current fees is overdue, and a reasonable fee increase could certainly be justified. Let’s take, for example, the most impactful of the new fees, the fee to appeal an Immigration Court decision to the BIA. The current fee is $110. According to EOIR, had this fee been adjusted for inflation (starting in 1986), it would be $252.63 in today’s dollars. So in that sense, the current fee is less than it should be (whatever that means). The new proposed fee of $975 is nearly nine times the current fee, but “only” about four times the adjusted-for-inflation fee.
Also, a fee waiver may be available for those who need it, using form EOIR-26A. This form (at least in its current iteration) is fairly simple, and seeks information about the applicant’s income and expenses. It’s not clear how much evidence is needed to support the contentions in the form, but given the wide latitude of adjudicators to grant or deny a fee waiver, it seems to me that the wise applicant will include significant supporting evidence (which may require a lot of work). Pursuant to the regulations, EOIR has the “discretion” to grant a fee waiver. However, the regulations also indicate that, “if the fee waiver request does not establish the inability to pay the required fee, the appeal or motion will not be deemed properly filed.” Does this mean that an appeal filed along with a fee waiver will be rejected if the fee waiver is denied? Will EOIR provide some type of notice, so that applicants can raise the fee and pay for their appeal? How much time will EOIR allow to pay the fee? It’s hard to be optimistic about any of this, given that the whopping new fees seem purposely designed to dissuade applicants from pursuing their rights before the Immigration Courts and the BIA.
Finally, EOIR’s main justification for the new fees is that costs for the agency have increased, and raising fees will help cover EOIR’s expenses and protect tax payers–to the tune of about $45 million per year. To come up with their numbers, EOIR completed a study where they looked at who adjudicates the various applications, how long it takes, and how much it costs (taking into account salaries, but not other expenses such as overhead or employee benefits). How accurate is this study? I have no idea. Different appeals, for example, require very different amounts of work. Some appeals are simple; others are complicated. But even assuming the new fees accurately reflect EOIR’s expenses, I think that fee increases of this magnitude are unfair for two main reasons.
First, EOIR’s justification for these fees is a con job. They talk about the expenses of immigrants, but not the contributions of immigrants to our society. The Trump Administration tried this trick at least once before, when it suppressed a study showing that refugees contribute more to our economy than they take, and instead released a distorted study, listing only the costs of helping refugees. You simply can’t separate out the costs of maintaining an immigration system from the benefits we as a nation derive from that system. Yet that is what EOIR is doing here: Director McHenry decries the expenses to the system, but we learn nothing about how immigrants contribute to our economy (and the weight of the evidence indicates that immigration benefits our economy).
Second, in its mission statement, EOIR indicates that it “is committed to providing fair, expeditious, and uniform application of the nation’s immigration laws in all cases.” How can it fulfill this mission if the people before the Immigration Courts and the BIA cannot afford the relief to which they are entitled? To have a functioning legal system, people in our country need access to courts–civil courts, criminal courts, and immigration courts, among others. Our’s is not (and should not be) a nation where you receive only the justice you can afford. Non-citizens who live in our country should not be an exception to this rule. Or, as the indefatigable Paul Wickham Schmidt writes—
Correcting errors on appeal is probably one of the most important functions the Government performs. That’s particularly true when the public segment “served” is generally limited income individuals and the getting results correct could be “life determining.”
At this stage, the new fees are proposed, but not yet in effect. The public can submit comments about the proposal, and perhaps that will cause EOIR to modify its plan. To submit comments, see page 2 of the proposed rule.
Make no mistake, these proposed fees are another attack on immigrants, justified with half truths, and implemented because immigrants are too vulnerable to fight back. All people of good conscience should continue to resist these terrible policies, which directly impact our non-citizen neighbors, but which, in the end, harm us all.
