The Biden administration on Friday unveiled a new process for speeding up immigration hearings, but some advocates say this “rocket docket” approach may do more harm than good.
“The first impression (of Friday’s announcement) is definitely disappointment,” said Linda Rivas, executive director of Las Americas Immigrant Advocacy in El Paso. “Disappointment that the (Biden) administration seems to have a need to expedite cases at the expense of due process.”
El Paso is among the 10 cities with immigration courts that will handle these cases, according to the announcement by the Department of Justice and the Department of Homeland Security. In order to qualify for this expedited process, families must be apprehended “between ports of entry on or after Friday, May 28, 2021, placed in removal proceedings, and enrolled in Alternatives to Detention (ATD),” the announcement said.
Secretary of Homeland Security Alejandro Mayorkas said in the announcement that the new process is needed to improve the fairness and efficiency of deciding cases.
“Families who have recently arrived should not languish in a multi-year backlog; today’s announcement is an important step for both justice and border security,” Mayorkas said.
The backlog in U.S. immigration courts increased dramatically during the Trump administration, leaving nearly 1.3 million pending deportation cases at the start of 2021, according to Transactional Resource Access Clearinghouse data. As of the end of December 2020, more than 17,000 cases were backlogged in El Paso immigration courts, with an average wait time for a hearing of 715 days, and a maximum wait of 3,738 days. Friday’s announcement said the dedicated docket process would generally render a decision within 300 days.
Rivas said it’s important to consider Friday’s announcement within the context of the Trump administration’s legacy, and the anti-asylum policies that remain in place under the Biden administration.
“What the Trump administration did was essentially try to obliterate asylum, and do away with asylum protections for so many,” Rivas said. “The fact that the Biden administration hasn’t restored some of these things before announcing something like this, I think they really lose sight of what’s really crucial here, which is the protection of people who desperately need it.”
Migrants have a right to seek asylum in the United States, upheld in both domestic and international law. Title 42, a Trump-era policy enabling the rapid expulsion of migrants without providing access to standard components of the process for seeking asylum, has remained in place under the nascent Biden administration despite a chorus of criticisms by immigration advocates.
Lawyers and immigration advocates voiced strong concerns about the new immigration court policy on Twitter Friday morning.
Gregory Chen, director of government relations for the American Immigration Lawyers Association, called the plan for legal representation of migrants “unfair.”
Chen expanded upon his comments in a written statement to El Paso Matters, explaining that a similar family rocket docket process was attempted during the Obama administration with “terribly unfair results.”
“It is a travesty that America’s justice system still does not guarantee counsel and continues to deport families back into harm’s way without giving them a fair hearing,” Chen said. “Today, DOJ and DHS repeated several times the words fairness and due process — they now must deliver on those promises and ensure no family is deported without a fair day in court.”
A report by TRAC, a federal court research organization based at Syracuse University, analyzed rocket docket cases during the Obama administration between 2014 and 2016 and found that 70 percent of families did not have legal representation.
Aaron Reichlin-Melnick of the American Immigration Council said we will likely see similar numbers in terms of legal representation among asylum-seekers this time around, unless more mechanisms are put into place in order to ensure access to legal counsel.
“We have seen two previous administrations use these expedited dockets, and in both situations it led to many individuals pushed through a court process without the time they needed to prepare for their cases and find counsel, so we remain concerned that a third attempt could fall victim to the same issue,” Reichlin-Melnick said.
Reichlin-Melnick described the rocket docket process as “the wrong way forward” in a tweet Friday morning.
Rivas said that local nonprofits, like Las Americas and Diocesan Migrant Refugee Services in El Paso, will end up bearing the brunt of the work for the expedited adjudication, which is difficult when there are no promises of additional funding and were no conversations with local nonprofits in advance of the announcement.
Unless the Biden administration makes substantive changes to access to legal counsel among asylum-seekers, Rivas said it’s likely the consequences of Friday’s announcement will entail dire impacts on due process.
“We would love to see a stronger commitment from Biden to ensure actual access to counsel, and that it is actually provided by the government. That is something bold, that is something really needed, and it doesn’t seem like we’re anywhere near that. It does not seem that that’s where the Biden administration is headed,” she said.
Cover photo: A woman enrolled in Migrant Protection Protocols, which required her to stay in Mexico while she sought asylum in the United States, carries her documents in a plastic folder as she crosses the border from Juárez into El Paso on March 24. (Corrie Boudreaux/El Paso Matters)