NQRFPT = “Not Quite Ready For Prime Time”
MIA = “Missing in Action”
ADR = “Aimless Docket Reshuffling”
Kate Morrissey reports for the San Diego Union Tribune:
Two of the three asylum seekers who were supposed to show up for the first immigration court hearings under the “Remain in Mexico” policy did not make it across the border on Thursday to appear.
After the Homeland Security Secretary announced what she called a “historic” program, known officially as Migrant Protection Protocols, in December, many wondered — and worried — about the logistics of shuttling migrants back and forth across the border for court hearings.At least one of the people who had been returned to Tijuana after asking for asylum at the San Ysidro Port of Entry missed the court hearings because of what Assistant Chief Immigration Judge Rico Bartolomei called a “glitch” in the scheduling system.
Court cases for the program were supposed to start next Tuesday, but somehow cases got scheduled for this Thursday, Bartolomei explained. At first, the court tried to reschedule those hearings for Tuesday but realized it wouldn’t have a way to communicate that effectively with the asylum seekers in Mexico.
The issue was that when the court rescheduled to March 19, anyone who called its toll-free number to check for court date updates thought that the hearings would be on March 19. That happened in the case of one Honduran woman who had Los Angeles-based attorney Olga Badilla representing her.
Badilla explained to the judge that she had only learned the day before that the hearing had moved back to March 14 and that her client hadn’t found out in time to be at the port of entry at 9 a.m. She arrived a couple of hours later, but Customs and Border Protection officers wouldn’t let her into the U.S. for her hearing.
“She’s present at the port of entry and ready to come in,” Badilla told the judge, asking for the court’s help. “It’s an unusual situation given the circumstances.”
Aguilar said the judge should order the woman deported in her absence.
Bartolomei denied that motion, saying that the woman had received “insufficient notice” of the hearing. Instead, he scheduled a future date with Badilla to turn in the woman’s asylum application.
Though the woman was given another chance to show up for court, she ran into more problems down at the border. Her permit to stay in Mexico was on the verge of expiring in anticipation of her crossing into the U.S. for court. If she had crossed and returned again, she would likely get a new one. Without entering the U.S., she was about to become deportable from Mexico.
When court ended for the day, Badilla went to try to help her client.
The other person who didn’t show up for court, a 24-year-old man from Honduras, had also had his case rescheduled through the court’s glitch.
ICE attorney Aguilar again moved to have the man ordered deported.
Bartolomei pushed the ICE attorney about whether it made sense to order someone deported from the U.S. while they are still in Mexico. He asked if it made more sense to consider the person’s application for admission withdrawn.
According to immigration attorney Tammy Lin, a withdrawal would limit potential restrictions on the man’s ability to come to the U.S. in the future. A deportation order would make it much more difficult for the man to come to the U.S.
During the conversation, Bartolomei sighed audibly, weighing the options before him.
Then he decided to reschedule his case for the 19th to see if the man showed up then. Since he didn’t have an address to send the new hearing notice to, he gave it to the Department of Homeland Security to pass on to the man.
The one person who did show up did not have an attorney. Also from Honduras, the man arrived at El Chaparral plaza outside the port of entry well before 9 a.m. A volunteer from a legal services organization that supports migrants in the plaza every morning before they ask for asylum saw him and escorted him to the gate inside the port that marks the entry to the U.S.
He waited in line, shuffling down the spiral walkway in a mix of commuters, shoppers and friends returning from trips abroad. When he got to the front of the line, a Customs and Border Protection official held him to the side to wait for the other two who were supposed to come.
He was nervous, he said.
A few minutes after 9 a.m., several CBP officers and two plainclothes officials took him into the U.S. Officers from Immigration and Customs Enforcement transported him from the port of entry to the office building in downtown San Diego that houses the immigration court.
He arrived at the court before noon and sat in a corner of the back row of benches, head bowed.
When it was his turn to face the judge, he spoke softly into the microphone and watched attentively as Bartolomei explained each of the documents he had received.
Bartolomei asked him if he wanted more time to find an attorney.
Yes, the man replied.
The judge granted him another month to try to find someone to help him and told him he would likely be taken back to Mexico again.
“I know it will be difficult to try to get an attorney from there,” Bartolomei told him, urging him to try his best to find a lawyer to take his case.
When his turn was over, ICE officers quickly whisked him away, back to the port of entry.
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Notice will continue to be an issue in this ill-designed process. It actually appears that it will be impossible to properly serve anyone at a “last known address” in Mexico. Thus, any in absentia hearings should ultimately be vacated for lack of notice and will have to be re-started. That’s what “ADR” is all about.
The ICE Attorney was both unhelpful and probably unethical when he insisted on frivolously moving for an “in absentia” order given the obvious scheduling and notice issues attributable to his agency’s choice of this “historically” goofed up and perhaps illegal method of proceeding. Unwillingness to assume any responsibility for their own frequent screw ups and predictably bad policy choices is certainly a “hallmark” of the Trump Administration!
Once of the things that made the Arlington Immigration Court run as well as it did during my tenure was the sense of justice, common sense, practicality, and overall cooperation and helpfulness of the ICE Chief Counsel’s Office in working with the Immigration Judges and private bar to “keeping the ball moving down the field.” Apparently deprived of such a professional approach by the mindless “due process and common sense be damned policies” of this Administration, today’s Immigration Judges face additional roadblocks in promoting efficiency and fairness in accordance with the law. No wonder the backlogs are growing exponentially even with more Immigration Judges on the bench!
Here’s how might a “due process and efficiency-oriented system” could have dealt with the same issues:
- Work with the private sector to obtain local counsel for individuals who have passed the “credible fear” process;
- Find out how long it will take the lawyer to prepare the application for asylum for filing with the Immigration Court;
- Choose a compatable date for filing at the “Initial Master” from a computerized list of “available first Master dates” on Judge Bartolomei’s calendar made available by EOIR;
- Release the applicant to a local nonprofit who will help insure that he or she understands the system and the importance of keeping attorney meetings and appearing before the Immigration Court as scheduled;
- At the first Master, the attorney files the completed asylum application with Judge Bartolomei, and he assigns an Individual Hearing date;
- Presto! A system that works, uses court and judicial time wisely, and promotes fair and efficient results.
Contrast that with the mindless system described above. The key: under the current system everybody has wasted time and effort, particularly Judge Bartholomei, but without getting any closer to assigning an actual Individual Hearing date than on the day the applicant passed “credible fear.”
That’s how Government-created “bogus emergencies” happen. It’s really important that folks like Kate keep reporting on the “nitty gritty” of the Trump Administration’s “malicious incompetence” and how it is destroying and degrading our immigration and justice systems on a daily basis.
Undoubtedly, this Administration will attempt to shift blame for its own predictable failures to the victims — asylum seekers, their lawyers, and Immigration Judges. It’s important that the Trump Administration be held fully accountable, both in the present and for history, for the consequences of their terrible White Nationalist restrictionist agenda.
PWS
03-16-19