Immigration Courts Re-prioritize Cases


On January 31, 2017, the Executive Office for Immigration Review (EOIR) issued a memo re-prioritizing the immigration cases before it. Prior guidance declared that cases involving serious criminals, recent arrivals, repeated immigration violators, unaccompanied minors, and recently-arrived families with children had to take precedence over other cases. This had resulted in 2014 in many children’s cases being placed on a “rocket docket” that made it extremely difficult for children to find attorneys or put together their cases, even when they had legal relief.

The new EOIR guidance indicates that non-citizens in detention and unaccompanied children who do not have a sponsor are priorities to be deported. On the positive side, this means unaccompanied minors and families who have been released from detention will not be subject to fast-moving dockets and will have time to find a lawyer and prepare their cases. However, Human Rights Initiative of North Texas (HRI) has several major concerns with the new EOIR priorities. Children who arrive to the United States alone and do not have a close relative here with whom they can live – among the most vulnerable people coming to the United States – could be subject to almost immediate deportation under this memo.  HRI has represented these children since 2010 by providing them with attorneys while they live in long term foster care. These children almost always have legal relief in the United States due to protections that help immigrant children who have been trafficked or abused, abandoned or neglected by one or both parents. These cases can be complex and the children need help to navigate the court and immigration systems. Detaining them and prioritizing them for deportation before they have been placed in foster care is inhumane and likely violates their due process rights. Most detention facilities are hundreds of miles from major cities so these children are unlikely to find lawyers or other needed social services. Without lawyers, these defenseless children could be sent back to dangerous or deadly situations in their home countries.

The same holds true for asylum-seekers. A separate executive order and a recent memorandum by the Department of Homeland Security state that immigrants arriving at our border will be either turned around and sent to Mexico to await a court date or detained for the entire time their cases are pending. This EOIR memo then prioritizes these cases of detained individuals. While it is possible that asylum-seekers who pass a credible fear interview will be released, it appears they will not be released unless they can present all their evidence or legal theories to prove their case.  Detaining all these people and fast-tracking their cases is expensive, inhumane and violates U.S. and international law. If detained, asylum-seekers will likely not have an attorney – only 14 percent of detainees found legal counsel from 2007-2012 – to assist them in presenting often complex asylum cases. People fleeing persecution should not be rushed through the deportation process. Instead, our system should focus on serious criminals and people who threaten our safety and national security. There is a very real threat that these recent DHS and EOIR memos will result in detention centers turning into deportation mills.

Finally, the immigration courts already have a huge backlog, and these recent government memoranda will make them less efficient, further stressing judges and giving them less time to assess cases effectively and fairly. The plans anticipate hundreds of thousands of immigrants being detained and fast-tracked for deportation, but there are not enough immigration judges right now to handle the existing caseload. EOIR has not been able to fill all its open immigration judge positions, and studies have shown that an additional 150 judges are needed to get through the current backlog. But no more judges or support staff can be hired right now due to the federal hiring freeze.  Adequate support staff is needed to ensure the courts run smoothly.  For example, in Dallas there are now just six support staff at the immigration court, which has six judges and over 11,000 pending cases. With over 500,000 immigration court cases on the dockets nationwide, the reshuffling of case priorities will focus on deporting those with the least ability to defending themselves – children, asylum-seekers and other detained immigrants, without giving the courts the resources to adequately evaluate and process their claims.