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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.
Jason Dzubow | July 29, 2020 at 9:09 am | Tags: coronavirus, court, EOIR | Categories: Immigration Court | URL: https://wp.me/p8nkzm-21G
Re-Thinking the Master Calendar Hearing in the Time of Coronavirus by Jason Dzubow
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Thanks, Jason, for some great ideas!
One could wonder why EOIR hasn’t done this already. Unfortunately, the answer is obvious: It’s a “built to fail system” FUBAR System, run by a maliciously incompetent politicized kakistocracy whose main objective is to screw immigrants and secondary objective is to degrade and demoralize its own employees.
Creative thinking and working collectively and cooperatively with knowledgeable “stakeholders” — private counsel, pro bono groups, NGOs, immigrants, judges, staff, and ICE attorneys — is actively discouraged if not outright prohibited by current the political kakistocracy. That’s what happens when a racist, xenophobic agenda replaces due process and fundamental fairness as the objective and vision of the system. A kakistocracy actually inhibits and suppresses creative positive change in favor of “political gimmicks” and “haste makes waste” non-solutions to problems. The Trump regime is “Exhibit A!”
That’s why true reform can’t come without:
- regime change;
- Article I;
- return to a sole focus on due process and fundamental fairness through teamwork and innovation;
- a merit based Immigration Judiciary at all levels; and
- professional court administration accountable to that independent judiciary (not a political kakistocracy).
Thanks for pointing us in the right direction, Jason! I know from my experience that there are lots of other folks out there in private sector with some great ideas on how to make the Immigration Court System functional while advancing due process, fundamental fairness, and human rights.
Another idea for promoting due process with efficiency developed by my friend retired Wisconsin Judge Tom Lister and me is to create a trained corps of Reserve Immigration Judges. https://immigrationcourtside.com/2019/08/19/an-open-letter-proposal-from-two-uw-law-73-retired-judges-weve-spent-90-collective-years-working-to-improve-the-quality-delivery-of-justice-in-america/
This would be comprised of retired judges from all systems who could work on a volunteer basis to perform certain types of standard judicial tasks to free up Immigration Judges to concentrate on fairly resolving the most difficult legal issues at individual hearings and to work on their opinion writing.
Master calendar hearings, motions calendars, status calls, bond hearings, and certain types of hearings where the issues are primarily factual would be naturals for a Reserve Immigration Judge Corps. It also would allow the Immigraton Court System to be more responsive to workload fluctuations without the problems of “fire drill” overstaffing, understaffing, and “Aimless Docket Reshuffling” that currently plague the system.
Right now, we lack the political will to get the job done. That must start this November with “regime change” at all levels of our political system.
Elected officials who aren’t willing to prioritize and commit to an independent Article I Immigration Court dedicated to due process and fundamental fairness should be voted out of office. Enough of the nonsense, malicious incompetence, and inhumanity. Time for a change! We can’t afford the kakistocracy!
Due Process Forever!
PWS
07-29-20