Greasing the Deportation Machine: US Immigration Courts under Trump

Guest post by Austin Kocher. Austin recently earned Ph.D. in geography from the Ohio State University. His dissertation, titled ‘Notice to Appear: Immigration Courts and the Legal Production of Immigrant Illegality’ focused on the contingent juridical processes and human labor that goes into creating populations of deportable immigrants in the United States. He is also the Board President of the Central Ohio Worker Center, a non-profit organization that was founded in 2014 to advocate with and for immigrant and worker justice.

One Year Into the Trump Era

Over the past year, US President Donald J. Trump followed through on some of his campaign promises by making life harder for immigrants in the United States. During his first week in office one year ago, Trump issued executive orders calling for even more border militarization, increased interior enforcement, and bans on legal immigration from Muslim-majority countries that faced a cycle of litigation and modification. In September 2017, Trump’s Attorney General, Jeff Sessions, cancelled the DACA program, which provided temporary protections to undocumented immigrants brought as children to the United States (although this matter is currently being litigated). More recently, during a bipartisan discussion on immigration reform ground to a painful halt after Trump reportedly referred to Caribbean and African nations as ‘shithole countries’ and suggested that the US needed more immigration from countries like Norway.

Although Trump’s assault on immigrants has been highly-visible to the international community, inside the US Department of Justice, Attorney General Jeff Sessions is transforming the immigration court system in an attempt to eviscerate what little procedural justice is available to undocumented immigrants in removal proceedings.

The State of the Courts: Not Fair, Not Expeditious, Not Uniform

The US immigration court system is a network of 318 judges working in 58 physical immigration courts (and other televideo sites in jails, prisons, and detention centers across the country), who are responsible for adjudicating cases brought against non-citizens by the Department of Homeland Security. By deciding who is allowed to stay in the United States and who is ordered deported, immigration judges play a central role in immigration control, deportation, and the line between citizens and non-citizens. Yet what happens inside immigration courtrooms is anything but due process.

The mission of the EOIR is to ‘adjudicate immigration cases by fairly, expeditiously, and uniformly interpreting and administering the Nation's immigration laws.’ But an expanding body of literature provides ample evidence that the courts are neither fair, nor expeditious, nor uniform in their treatment of immigration cases. Despite the life and death consequences for deportation, the courts are plagued by a number of systemic inequalities.

First, immigrants in removal proceedings do not have access to a fair trial for reasons that are beyond the control of any single attorney, judge, or immigrant. The following examples gleaned from several years of fieldwork illustrate this pervasive judicial inequality.

• Because immigration proceedings are civil (not criminal), immigrants do not have the right to an attorney. As a result, immigrants often represent themselves pro se against ICE trial attorneys who specialize in immigration law.
• Many immigrants are detained during their hearings, usually in rural areas far from family or attorneys, and therefore do not have the ability to adequately prepare for their case or seek legal counsel. For example, many attorneys I interviewed would not accept detained cases because they weren’t able to make the 5-hour round-trip drive to the detention facility.
• Although interpreters are provided by the court, they are typically only allowed to interpret direct questions and responses, rendering most of the hearings unintelligible to immigrants.
• Despite their black robes, immigration judges are classified as government attorneys, which means that they can be disciplined for not following policies of their superiors within the Department of Justice.

Second, there is little about the immigration courts that would characterize them as ‘done with speed and efficiency’ (Oxford Dictionary entry for expeditious). Due in large part to ICE’s lack of discretion when issuing NTAs, the immigration courts have been overwhelmed with increasingly complex cases, which judges are often forced to decide in minutes. The backlog of cases before the courts as of November 2017 is 658,728 cases, which contributes to an average processing time of 698 days per case. Furthermore, the backlog is unevenly distributed across court locations. The Denver immigration court, for instance, had the longest processing time at 1,057 days. During Spring 2015, when I conducted many of the research interviews for my dissertation, new asylum cases were being scheduled for hearings in Cleveland in 2020 – five years into the future. Adding to this, the courts are also chronically understaffed. For example, although the Cleveland immigration court opened its doors in 2006, it was not considered ‘fully staffed’ with the basic number of paralegals, administrators, and legal support staff until well into 2015.

Third, the courts are demonstrably uneven. Immigration case outcomes depend more on immigrants’ zip codes, the random assignment of judges, and access to attorneys rather than the quality of the actual legal case. For instance, asylum cases filed in Atlanta face approval rates as low as 2.2%, while the same case in New York City could be as high as 97%. While volunteering with the CARA Pro Bono project in a family detention center in Texas, I witnessed immigration attorneys successfully appeal asylum screenings that refugees from Central America would have never been able to argue on their own. And during my fieldwork in Ohio, immigration attorneys routinely voiced discouragement when a case was randomly assigned to a particular immigration judge, saying, ‘that judge doesn’t grant asylum’. After conducting extensive research on how asylum cases are decided, Ramji-Nogales et al. conclude:

Whether an asylum applicant is able to live safely in the United States or is deported to a country in which he or she claims to fear persecution is very seriously influenced by a spin of the wheel of chance; that is, by a clerk’s random assignment of an applicant’s case to one asylum officer rather than another, or one immigration judge rather than another.

With all of these existing problems, what more could Donald Trump and Jeff Sessions do to grease the wheels of the US deportation regime? As it turns out, quite a lot.

Deport Now, Ask Questions Later

President Trump’s ongoing attempts to limit legal and illegal types of immigration to the United States are being translated into judicial practice by Attorney General Sessions, who is systematically stripping away the barriers to deportation for immigrants already inside the United States. Sessions, like Trump, relies upon the highly-imaginative argument that America is a victim of its own benevolence. Sessions extends the underlying victimhood ethos of Trump’s campaign slogan, ‘Make America Great Again’ to the courts. In a recent speech to immigration judges, for instance, Sessions claims that the US’ immigration laws are ‘some of the most benevolent in the world,’ that the US is a ‘compassionate country,’ and that ‘we cannot … continue to let our generosity be abused.’ The counterfactual argument that the current state of the courts is motivated by benevolence and generosity is a powerful rhetorical move that attempts to rationalize what are, in fact, radical reforms that will further undermine the rule of law rather than protect it.

Sessions’ strategy for accomplishing anti-immigrant agenda can be summed up in a word: speed. As I mentioned above, there is an enormous backlog of cases in the immigration courts, and this backlog effects the speed at which ICE can deport immigrants from the US interior. To address this, Sessions is attempting to speed up every step of the deportation process in order to inflate deportations. Sessions is forcing immigration judges to decide cases faster by imposing performance metrics, limiting continuances, and withdrawing judges’ authority to administratively close cases. Although Sessions claims that he is not telling judges how to decide cases, rushed cases are more likely to result in deportations. He is also hiring more ICE Trial Attorneys, the attorneys who act as prosecutors in immigration courts, in order to decrease the number of cases that ICE attorneys close due to their own internal backlog.

For instance, a judge at a court in the Midwest is giving immigrants in his courtroom just one week to find an attorney, and then proceeding pro se. The judge claims ‘It only takes an hour to find an immigration attorney.’ But the problem isn’t merely that it is difficult for non-English-speaking respondents to find a trustworthy immigration attorney, it also takes time to earn or raise the money to pay for one. Access to an attorney is the main controllable variable that determines cases. In short, by speeding up the timeline of removal proceedings, Sessions (and judges like this one) can ensure that cases will result in deportation.

Individually, these administrative changes fly below the radar of critical scrutiny, but collectively these successive moves, combined with increased restrictions to green cards and the (attempted) elimination of the DACA program, puts more immigrants at risk for deportation and much less likely to have legal recourse should they be put in removal proceedings. Immigrants will have even less opportunity to challenge their removability in court, immigration judges will have less time to focus on complex substantive legal matters, and refugees from Central America are more likely to be held in detention and deported without having an opportunity to file for asylum. Session’s view of procedural justice as an expendable flourish of law – especially for non-citizens – is not surprising given his record in the Senate, but in his role as Attorney General he is exercising his authority to make profound changes to how the courts work.

The Courts Will Not Save Us

None of this should be construed as an argument that the courts are intrinsically good and worth saving. In a darkly ironic turn, reformist immigration judges who have been asking the federal government for more resources are now getting what they asked for — along with a slew of other uninvited changes. In my view, the solution to the violence of deportation is not to bureaucratize it, not to reform it, modernize it, or conform to the neoliberal compulsion for ‘efficiency’, but to question the very racialized, gendered, and territorial foundations of immigration control. Nonetheless, for scholars who are interested in tracking the evolution of state power in the field of immigration control, Session’s anti-immigrant interventions into the everyday operations of the courts represents yet another way that immigrants are being systematically excluded from US society under the Trump administration.

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How to cite this blog post (Harvard style)

Kocher, A. (2018) Greasing the Deportation Machine: US Immigration Courts under Trump. Available at: https://www.law.ox.ac.uk/research-subject-groups/centre-criminology/centreborder-criminologies/blog/2018/03/greasing (Accessed [date]).