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Cancel Culture in Immigration Court

December 1, 2021

For “respondents” (non-citizens in removal proceedings) and their lawyers, Individual Hearings in Immigration Court are a big deal. Evidence must be gathered. Affidavits have to be prepared, checked, and re-checked. Witnesses must be identified, convinced to attend the hearing, and prepared for trial. Respondents practice their testimony. In most cases, the noncitizen has been waiting for many months or years for the trial date. The result of the trial determines whether the applicant can remain in the United States or must leave. When a respondent receives asylum, he is permitted to stay in the U.S. If he loses, he may be deported to a country where he faces danger. In many cases, respondents have family members here or overseas who are counting on them, and the outcome of the case affects the family members as well as the respondent. All of this provokes anxiety and anticipation. In short, Individual Hearings are life-changing events that profoundly effect respondents and their families.

So what happens when the Individual Hearing is canceled?

“Sorry boys and girls, the ‘nice’ list is too long. We’ll reschedule Christmas for next year… or maybe the year after that.”

The first thing to know is that cancellations are common. Cases are canceled weeks, days or even minutes before the scheduled time. Indeed, we often cannot be sure that a case will actually go forward until the hearing begins.

Why does this happen?

There are many reasons, some more legitimate than others. The most common reason these days is the pandemic. Sometimes, courts close due to potential exposures. That is understandable, but as far as I can tell, these represent a small minority of Covid cancellations. I have had 50% or more of my Individual Hearings canceled over the last year and a half, and none of those was caused by a Covid exposure. I suspect that the large majority of these cancellations are due to reduced capacity to hear cases–since judges and staff are often working from home. Indeed, most pandemic cancellations seem to occur a week or two before the Individual Hearing. By that time, we’ve already completed and submitted the evidence, witness list, and legal brief, and have usually started prepping the client for trial. The client is also psychologically gearing up for the big event.

And then we check the online system and find that the case is off the docket.

What’s so frustrating about these cancellations is that we’ve been living with the pandemic since early 2020. The Immigration Courts should have adjusted by now. If cases need to be canceled, why not do that several months in advance? At least that way, applicants would not build up hope, only to have that dashed when the case is cancelled at the last minute. Also, it wastes attorney time–since we will have to submit updated country condition evidence (and perhaps other evidence) later, re-prep witnesses, and potentially prepare new legal briefs, if the law changes (which is more common than you’d like to think). For attorneys who charge hourly, this additional work will involve additional costs to the applicants. So all around, last minute cancellations are harmful, and it’s hard to understand why they are still so frequent.

“I’m double booked today, so let’s put off your heart surgery until 2023.”

Besides the pandemic, court cases are cancelled for a host of other reasons: Immigration Judges (“IJs”) are out sick, hearings get bumped to accommodate “priority” cases or sometimes cases are “double booked,” meaning that they are scheduled for the same time slot with the same IJ, and so only one can go forward. To me, all these are weak excuses for canceling individual hearings. Most courts have several judges, and so if one judge is out sick, or if a priority case must be scheduled at the last minute, another judge should be able to help out (in all but the most complicated cases, judges need little time to prepare for a hearing, and so should be able to adjudicate a case on short notice). Also, there is no excuse for double-booking cases. IJs should have a sense of their schedules and simply not overbook. In addition, all courts are overseen by Assistant Chief Immigration Judges (“ACIJs”), who should be available to hear cases if need be. Finally, given the ubiquity of video conferencing equipment and electronic records, judges can adjudicate cases remotely, and so there should almost always be a judge available to fill in where needed.

Of course, there are times when case cancellations are unavoidable, due to inclement weather, for example. But in an ideal world, these should be rare.

“Oy vey! I have to give priority to a better-looking couple. Let’s reschedule this wedding for later. Are you free in 2024?”

If the delay caused by case cancellations was measured in weeks or even months, the problem would not be so severe. But in many cases, hearings are postponed for one or two years–or even longer! This is obviously distressing for the applicant, as the long-anticipated end date is pushed back to who-knows-when. It is particularly devastating for applicants who are separated from family members. The long postponements are also a problem for the case itself, as evidence becomes stale and must be replaced with more up-to-date information, and laws change, which can require a new legal brief. In short, these delays often force the applicant (and the applicant’s lawyer) to do significant extra work on the case, and this can add additional costs in terms of legal fees.

It seems obvious to me that courts do not fully appreciate the damage caused by last minute cancellations. If judges and staff (and management) knew more about the harm these cancellations cause, perhaps they would make a greater effort to ensure that hearings go forward, and that any delayed hearings are rescheduled as quickly as possible.

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Readers of “Courtside” are familiar with the “toxic culture” of EOIR — actively encouraged by some Attorneys General, enabled and abetted by others.

The real problem here is that Immigration Courts are “led” by “managers” beholden to political agendas rather than the public they should serve. Also, since far too many EOIR “managers” and Immigration Judges have never represented individuals in Immigration Court, they are basically clueless as to the human and practical effects of their actions on individuals as well as on the dedicated, often pro bono or “low bono” lawyers who must guide their desperate and often re-traumatized clients through this morass.

At a time when the need for pro bono assistance has never been greater, the disgraceful dysfunction,  mismanagement, and “studied user unfriendliness” of EOIR under Garland is actually discouraging attorneys from donating their time and endangering their emotional well-being! Could there be any worse public policy?

With so many extraordinarily talented, creative, courageous, independent legal minds out there in the private/NGO/academic sector of human rights/immigration/racial justice/due process this “intentional mediocrity (or worse)” is inexcusable. Yet, this massive failure of the U.S. justice system at the most basic level gets scant attention outside of Courtside, LexisNexis, ImmigrationProf Blog, Jeffrey S. Chase Blog, The Asylumist, and a few other specialized websites. 

This “leading disintegrator of American justice and cosmic threat to our entire democracy” is largely “shoved under the carpet” by “mainstream media,” leaders of the legal profession (outside of immigration/human rights), politicians, policy makers, and the general public. Will they only “wake up” when it is too late and their own rights and futures have been diminished, dehumanized, and de-personified as if they were “mere migrants, not humans?”

In other words, who in America will always be immune from the “Dred Scottification of the other” now practiced, tolerated, and often even encouraged at the highest levels of our government? Don’t think it couldn’t happen to you! If immigrants, asylum seekers, and migrants in the U.S. are not “persons” under the Fifth Amendment, what makes YOU think that YOUR “personhood” will be honored by the powers that be! 

In defense of today’s IJs, they actually have remarkably little control over their own dockets which are incompetently “micromanaged” from on high or by non-judicial “administrators.” Sound like a formula for an incredible, largely self-created, 1.5 million case backlog?

Cutting to the chase, the Immigration Courts are controlled by the Attorney General, a political official and a chief prosecutor to boot. Beyond that, no Attorney General has actually had to experience practice before the totally dysfunctional and intentionally user unfriendly “courts” he or she runs. 

Foreign Service Officers must initially serve as consuls — the basic operating level of an embassy. Hotel managers usually start by working the front desk, where the “rubber meets the road” in the industry.

But, we enthrone those who are supposed to be the best, wisest, and fairest in the legal profession as Attorneys General and Article III Judges without requiring that they have had experience representing individuals at the “retail level” of our legal system — the U.S. Immigration Courts.

It doesn’t make sense! But, what does figure is that a system run by those without expertise and relevant experience, haphazardly “supervised” by Article III Judges who almost invariably exhibit the same blind spots, indifference to injustice, and lack of practical knowledge and expertise as those they are “judicially reviewing”  has devolved into the worst court system in America. It’s an oppressive catastrophe where “liberty and justice are not for all” and survival is often more about the mood, mindset, or personal philosophy of the judge, or the “whim of the day” of DOJ politicos, than it is about the facts of the case or the most fair and reasonable applications of the law by experts! Is this really the way we should be determining who lives and who dies, who thrives and who will struggle just to survive?

These “courts” are not fair and impartial courts at all. They are places where service to the public comes last, poor leadership and mismanagement are tolerated and even rewarded, backlogs are out of control, due process, fundamental fairness, scholarship, and best practices scorned, and precious lives and human dignity routinely are ground to dust and scattered to the wind.

We deserve better from our legal system!

Once, there was a court system with a dream of a better future for all in America — a noble, if ambitious, vision, if you will: “through teamwork and innovation, become the world’s best administrative tribunals, guaranteeing fairness and due process for all.”😎

Now, sadly, that enlightened vision has disintegrated into a nightmare of dedicated dockets, biased precedents, endless backlogs, sloppy work, due process denying gimmicks, bogus statistics, mediocre judicial selections, secrecy, customer unfriendliness, dishonest blame shifting, and ridiculous Aimless Docket Reshuffling.  ☠️

Where there once was the promise of “light at the end of the tunnel,” now there is only “Darkness on The Edge of Town:”

Well lives on the line where dreams are found and lost
I’ll be there on time and I’ll pay the cost
For wanting things that can only be found
In the darkness on the edge of town
In the darkness on the edge of town

—- Bruce Springsteen

 😎Due Process Forever!

PWS

12-15-21