Public Access – immigrationcourtside.com

AILA POLICY BRIEFING: EOIR Still Playing “Hide The Ball” On Tent Court Access!

20011061-AILA Policy Briefing

Policy Brief: Public Access to Tent Courts Now Allowed, but Meaningful Access Still Absent January 10, 2020

Contact: Laura Lynch (Llynch@aila.org) or Leidy Perez-Davis (LPerez-Davis@aila.org)

In September 2019, the U.S. Department of Homeland Security (DHS) opened massive temporary tent facilities in Laredo and Brownsville, Texas, that function as virtual immigration courtrooms for vulnerable asylum seekers subject to Remain in Mexico. During the hearings, asylum seekers are held in tents at the ports of entry while judges appear remotely via video teleconference (VTC).

Unlike in other immigration courts, the government barred attorney observers, press, and the public from accessing these facilities, in violation of U.S. Department of Justice (DOJ) regulations requiring immigration hearings to generally be open to the public. Access to the tent courts is critical to ensuring due process, and AILA, along with several other organizations and numerous members of Congress, repeatedly voiced concerns about the lack of transparency. In response, and after months of public demand for access, the Wall Street Journal reported on December 29, 2019, that DHS directed component agencies to open the tent courts to the public.1

The DHS acknowledgement that transparency is both necessary and required is a vital first step toward upholding due process in tent courts. However, thus far, DHS and DOJ have operationalized this directive in a way that fails to allow meaningful access to the tent court facilities and imposed new hurdles to transparency by assigning immigration judges from the Ft. Worth Immigration Adjudication Center.

Tent Court Access Prior to December 29, 2019, Public Access Announcement

When DHS initially opened the tent courts in September 2019, it allowed only asylum seekers and their attorneys of record into the facilities. At one time, even support staff for attorneys of record such as interpreters and paralegals were restricted from entering the tents, though they were later allowed to accompany the attorneys. Attorney observers, press, and members of the public were categorically barred from the tent facilities while hearings were taking place. Representatives from AILA and other court observers were permitted to observe Master Calendar Hearings and Individual Merits Hearings only at the brick-and-mortar courtrooms where the judges appearing by VTC were located. However, remote observation is not an adequate substitute for access to the tent courts because observers are not able to assess how the proceedings are operating from the vantage point of the individual respondent, who is the most gravely impacted by these proceedings.

1 “In an effort to ensure consistency, clarity, and transparency, the acting secretary directed [component agencies] to formalize guidance for public access to these facilities, consistent with immigration courts across the country.” – DHS spokeswoman, Heather Swift. See Michelle Hackman, Wall Street Journal, U.S. Opens Immigration ‘Tent Courts’ to Public, Dec. 29, 2019.

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Laredo and Brownsville Tent Court Setup from September 2019 through December 2019

Laredo Tent Court Brownsville Tent Court

Laredo tent court proceedings, including both Master Calendar Hearings and Individual Merits Hearings, were conducted via VTC by immigration judges located at the brick-and-mortar San Antonio immigration court, which is nearly 200 miles away. Brownsville tent court proceedings, including both Master Calendar Hearings and Individual Merits Hearings, were conducted by immigration judges located at the Harlingen and Port Isabel immigration courts, as well as the El Paso SPC, which is nearly 800 miles away from the Brownsville tent court.

● Respondents appeared in person at the Laredo tent court.

● Immigration judges from the San Antonio Immigration Court appeared via VTC.

● Attorneys of record appeared either (1) at the Laredo tent court or (2) via VTC from the San Antonio brick-and-mortar courtrooms.

● ICE trial attorneys located at the San Antonio Immigration Court appeared via VTC.

● Interpreters interpreted remotely from the San Antonio Immigration Court.

● Witnesses appeared either (1) at the Laredo tent court or (2) via VTC from the San Antonio brick-and-mortar courtrooms.

● Court observers were only permitted to observe Master Calendar Hearings and Individual Merits Hearings at the brick-and-mortar courts

● Respondents appeared in person at the Brownsville tent court.

● Immigration judges from Harlingen, Port Isabel, or El Paso SCP appeared via VTC.

● Attorneys of record appeared either (1) at the Brownsville tent court or (2) via VTC from the immigration judge location.

● ICE trial attorneys appeared via VTC from the immigration judge location.

● Interpreters interpreted remotely from the immigration judge location.

● Witnesses appeared either (1) at the Brownsville tent court or (2) via VTC from the immigration judge location.

● Court observers were only permitted to observe Master Calendar Hearings and Individual Merits Hearings at the brick-and-mortar courts.

Tent Court Access After December 29, 2019, Public Access Announcement

Master Calendar Hearings

Reports indicate that members of the press and public have been permitted to observe Master Calendar Hearings at the Brownsville and Laredo tent court facilities, in addition to the brick-and-mortar courts where the judges sit. However, this access has not been consistent with access allowed at other immigration courts across the country. For example, Master Calendar Hearings are generally open to the public, but in the tent courts, DHS personnel dictate particular Master Calendar Hearings the public is permitted to observe. Reporters and court observers have encountered other logistical hurdles, such as DHS prohibiting pens and notepads in the tents, which impede their ability to accurately observe and document the hearings.

Access to Individual Merits Hearings2

DOJ and DHS recently imposed significant new barriers that block the public’s ability to observe Individual Merits Hearings taking place at the Laredo and Brownsville tent courts. DOJ recently began assigning individual merits hearings to the Ft. Worth Immigration Adjudication Center (IAC) judges. The Ft. Worth IAC opened in October 2018 and is a remote-only facility that is closed to the public.3 Immigration judges

2 In order to observe asylum hearings, court observers need to obtain permission from the Respondent. See EOIR Immigration Court Practice Manual, Chapter 4.9, Public Access.
3 For more background information about IACs, please see the following materials: AILA’s Policy Brief: FOIA Reveals EOIR’s Failed Plan for Fixing the Immigration Court Backlog, Feb. 21, 2019 (pgs. 4-5); The American Bar

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AILA Doc. No. 20011061. (Posted 1/10/20)

stationed at these centers adjudicate cases from around the country via VTC. The public has not been permitted to observe hearings at the IAC. Previously, court observers have been able to watch IAC proceedings by video in courtrooms where the respondent and ICE attorney are located.

However, reports indicate that DHS has blocked access to Individual Merits Hearings at the tent courts. If that continues, it would mean that there is no location for court observers or the media to watch the Individual Merits Hearings of respondents in tent courts assigned to IAC judges. For example, an AILA member reported earlier this week that DHS prevented her client’s adult son who is a lawful permanent resident from attending his mother’s Individual Merits Hearing at the Brownsville tent court that was assigned to a judge located at the Ft. Worth IAC. The son was initially permitted to enter the hearing in the tent court because he was listed as a witness in the case. Once the hearing started, the AILA member informed the immigration judge that she did not intend to call the son as a witness and would instead rely on his declaration. Despite empty chairs in the hearing room, security made the son sit in the waiting area for the duration of the hearing because the policy does not permit observers to attend Individual Merits Hearings.

At best, utilizing Ft. Worth IAC immigration judges to adjudicate Individual Merits Hearings at tent courts introduces additional operational complexities. At worst, it will block all public access. See below for more information on how using IAC judges to adjudicate hearings at the tent courts is functioning. AILA is still gathering additional information.

Merits Hearings at Brownsville Tent Court Adjudicated by IAC Judges

● Respondents appear in person at the Brownsville tent court.

● Immigration judges from the Ft. Worth IAC appear via VTC.

● Attorneys of record appear at the Brownsville tent court.

● ICE trial attorneys from an unknown location appear via VTC.

● Interpreters interpret in person at the Brownsville tent court.

● Witnesses appear in person at the Brownsville tent court.

● AILA is still gathering more information on whether DHS and DOJ are

taking steps to facilitate court observers’ access to these hearings.

What Don’t We Know?

DHS and DOJ’s lack of transparency continues to create chaos for court observers at these two tent courts. Below are a few of the many key outstanding questions regarding access to the tent court facilities.

DHS indicated that it has developed formal guidance on public access to tent court facilities but has not yet shared this guidance publicly. Will DHS share this guidance with the public?

What steps are DHS and DOJ taking to ensure meaningful public access to observe both Master Calendar Hearings and Individual Merits Hearings conducted at the tent court facilities, consistent with access allowed at other immigration courts across the country?

In situations where immigration judges from an IAC are assigned to adjudicate Individual Merits Hearings at the tent courts, how will DOJ facilitate public access? Does DOJ have plans to open the IACs to the public in the future?

Association’s 2019 Update Report, Reforming the Immigration System (pgs. 81-82); and The American Immigration Council Blog, The Judicial Black Sites the Government Created to Speed Up Deportations, Jan. 7, 2019.

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AILA Doc. No. 20011061. (Posted 1/10/20)

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Shouldn’t surprise anyone familiar with EOIR’s “Trump Era” user unfriendly policies, misinformation, xenophobia, and anti-Due-Process agenda.

I appreciate “NDPA superstars” Laura and Leidy keeping “on” this story. But, with Congress and the Article III courts taking a “pass” on their Constitutional functions (but, still collecting their paychecks), those “true patriots” like Laura and Leidy defending our Constitution and trying to preserve our democratic institutions face constant unnecessary “uphill battles” because of the dereliction duty by those charged with protecting the public good.

Due Process Forever!

PWS

01-11-20

ROUND TABLE OF FORMER IMMIGRATION JUDGES SPEAKS OUT AGAINST EOIR’S LIMITS ON PUBLIC ACCESS TO IMMIGRATION COURTS

Hon. Ilyce Shugall
U.S. Immigraton Judge (Retired)
Director, Immigrant Legal Defense Program, Justice & Diversity Center of the Bar Assn. of San Francisco.

McHenry letter_letterhead

VIA EMAIL AND FIRST CLASS MAIL

James McHenry, Director
Christopher Santoro, Acting Chief Immigration Judge Executive Office for Immigration Review
5107 Leesburg Pike, 18th Floor
Falls Church, VA 22041

Dear Director McHenry and Chief Immigration Judge Santoro,

Public access to the immigration courts is vital to the constitutional protections of the respond- ents who appear in court. Pursuant to 8 C.F.R. § 1003.27 the immigration courts are open to the public. Limited exceptions to public access exist under the regulations, for example, to protect witnesses or parties or the public interest (§ 1003.27(b)), in VAWA cases (§ 1003.27(c)), and when there is a protective order (§ 1003.27(d)). Asylum hearings are confidential and are not open to the public unless the asylum applicant consents (8 C.F.R. § 1208.6).

Migrant Protection Protocol “MPP” hearings are routinely conducted in violation of 8 C.F.R. § 1003.27. Observers have been denied access to remote hearing locations where respondents are appearing in “tent courts.” In addition, it was recently announced that some MPP hearings would be heard via video teleconference by immigration judges in the Fort Worth Adjudication Center. For such hearings, public access is entirely restricted, as observers are not allowed in the tent courts or the adjudication centers. As Judge Ashley Tabaddor stated in an interview with CNN, “MPP is rife with issues but by assigning the adjudication centers to the tent courts takes us to a new low where public access to the court are now eliminated.” She further stated, “[t]his is not the way we as judges or courts should function.”

We agree with Judge Tabaddor. On December 5, 2019, a member of our group of former immi- gration judges, Ilyce Shugall, was denied access to the immigration court while attempting to observe an MPP individual calendar hearing. Human Rights First requested permission for the observers to sit in Laredo with the respondents in the tent courts. The request was denied. Ac- cordingly, the observers, including Former Immigration Judge Shugall, who traveled across the country, were required to sit in San Antonio to observe respondents appearing from Laredo via

December 10, 2019

VTC. Although the individual hearing was an asylum merits hearing, the respondent consented to Former Judge Shugall observing the hearing.

Early in the hearing, Immigration Judge Cynthia Lafuente-Gaona confirmed that the respondent consented to Former Judge Shugall observing, as she was with a delegation from Human Rights First. Subsequently, Judge Lafuente-Gaona asked Former Judge Shugall to step out of the court- room because she was taking notes on her computer and looking at her cell phone. The assistant chief counsel for ICE was taking notes on his computer, but was never asked to cease his note taking. Former Judge Shugall advised she would put both her phone and computer away and take notes on a note pad. Judge Lafuente-Gaona told Former Judge Shugall she “should know better” because she was a former judge. Former Judge Shugall explained that attorneys and ob- servers used computers and phones in her courtroom when she was on the bench and had used her computer and phone in court all week, including in Judge Lafuente-Gaona’s courtroom the prior day. Former Judge Shugall remained in the courtroom and continued her note taking on a note pad. Some time later, a legal fellow from Human Rights First entered the courtroom. Judge Lafuente-Gaona again confirmed with the respondent that he consented to the additional observ- er. While doing so, she told the respondent that the observers were “writing about what he was saying,” which was entirely untrue. Judge Lafuente-Gaona then told the observers that their note taking on note pads was distracting and asked both to leave. After a break, the observers con- firmed with Judge Lafuente-Gaona that she was requiring they remain outside of the courtroom for the remainder of the hearing. She had two male guards escort the two female attorneys out of the courtroom. That same day the legal fellow from Human Rights First was prevented from ob- serving another pro se merits hearing.

Immigration judges preside over individual and master calendar hearings that are rife with dis- tractions. During master calendar hearings, people are constantly entering and leaving the court- room, taking notes, talking, and moving papers. On many dockets, children are crying, crawling on the floors, throwing toys and food, and playing with microphones. In addition, in immigra- tion courtrooms across the country, parties routinely take notes on computers and use cell phones in court. Observers taking notes during a pro se asylum hearing is not inherently distracting. That the judge became distracted because a former immigration judge and an attorney from a human rights organization made her nervous does not justify closing the courtroom.

While the above examples are specific to MPP hearings, issues related to public access to the immigration courts is not exclusively limited to MPP. For example, according to a Daily Beast article, earlier this month a reporter was forced to leave an immigration courtroom in New York.

Very few respondents subject to MPP are represented. There are significant concerns with ac- cess to counsel and due process in MPP proceedings. Allowing observers in court, pursuant to the regulations, is crucial. A judge’s failure to follow the regulations and the constitution should be of great concern to EOIR. It is certainly of paramount concern to this group of former immi- gration judges.

As former immigration judges, we understand that a judge has the right to control the conduct of those attending a hearing, but exercise of that control cannot compromise the parties’ due pro-

cess rights. We request that EOIR investigate this issue and ensure that the public has appropri- ate access to all immigration courts.

Very truly yours, /s/

The Round Table of Former Immigration Judges

Steven Abrams

Terry Bain

Sarah Burr

Teofilo Chapa

Jeffrey Chase

George Chew

Matthew D’Angelo

Bruce J. Einhorn

Cecelia Espenoza

Noel Ferris

James Fujimoto

Jennie Giambastiani

John Gossart

Paul Grussendorf

Miriam Hayward

Rebecca Bowen Jamil

William Joyce

Carol King

Margaret McManus

Charles Pazar

Laura Ramirez

John Richardson

Lory Rosenberg

Susan Roy

Paul Schmidt

Ilyce Shugall

Denise Slavin

Andrea Sloan

William Van Wyke

Polly Webber

Bob Weisel

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NOTE: A few of the above signatures were not received in time for the “hard copy” mailed to EOIR. They later were added to the publicly distributed version.

Public access is critical to Due Process and Fundamental Fairness in Immigration Court. In the Arlington Immigration Court, we were constantly “under observation” by reporters, Congressional staff, NGOs, students, Senior Executives from DOJ and DHS, Asylum Officers, OIL Attorneys, EOIR Headquarters and BIA staff, ORR staff, and other members of the public. We welcomed it. All of us viewed it as a “teaching opportunity” and a chance to demonstrate “Due Process in action” and to communicate our judicial philosophies and expertise in the law to others. It was an important “public education” opportunity.

Indeed, when I taught “Refugee Law & Policy” as an Adjunct Professor at Georgetown Law “Court Observation” was a required assignment. The same was true of many of my teaching colleagues at the many law schools in DC and Virginia.

Far from “disruptive” or “distracting,” I found that public observation actually improved everyone’s performance, including my own. Everyone in the courtroom got into “teaching mode,” willing and eager to demonstrate the importance of their roles in the justice system. Counsel on both sides would often remain for a few minutes after the case to discuss their respective roles and how they came to choose immigration law as a career (of course, being careful not to discuss particular case facts).

Indeed, one of the most meaningful items of “feedback” I got from an observer (paraphrased) was: “I expected something much more openly adversarial and hostile. I was surprised by the degree of cooperation, mutual respect, and teamwork by everyone in the courtroom including counsel, the witnesses, the interpreter, and the judge to complete the case in the time allotted and to inform the judge’s decision. Everyone seemed to be working toward a common goal of resolution, even though they had different roles and views on the right outcome.”

Of course that was then. I’ve been told that most Immigration Courts these days are much more “openly hostile territory” particularly for respondents and their counsel. All the more reason why we need more, rather than less, in person court observation.

Many thanks to our friend and Round Table colleague Judge Ilyce Shugall for bringing this festering problem “out in the open.”

PWS

12-12-19

Laredo Tent Court	Brownsville Tent Court
Laredo tent court proceedings, including both Master Calendar Hearings and Individual Merits Hearings, were conducted via VTC by immigration judges located at the brick-and-mortar San Antonio immigration court, which is nearly 200 miles away.	Brownsville tent court proceedings, including both Master Calendar Hearings and Individual Merits Hearings, were conducted by immigration judges located at the Harlingen and Port Isabel immigration courts, as well as the El Paso SPC, which is nearly 800 miles away from the Brownsville tent court.
● Respondents appeared in person at the Laredo tent court. ● Immigration judges from the San Antonio Immigration Court appeared via VTC. ● Attorneys of record appeared either (1) at the Laredo tent court or (2) via VTC from the San Antonio brick-and-mortar courtrooms. ● ICE trial attorneys located at the San Antonio Immigration Court appeared via VTC. ● Interpreters interpreted remotely from the San Antonio Immigration Court. ● Witnesses appeared either (1) at the Laredo tent court or (2) via VTC from the San Antonio brick-and-mortar courtrooms. ● Court observers were only permitted to observe Master Calendar Hearings and Individual Merits Hearings at the brick-and-mortar courts	● Respondents appeared in person at the Brownsville tent court. ● Immigration judges from Harlingen, Port Isabel, or El Paso SCP appeared via VTC. ● Attorneys of record appeared either (1) at the Brownsville tent court or (2) via VTC from the immigration judge location. ● ICE trial attorneys appeared via VTC from the immigration judge location. ● Interpreters interpreted remotely from the immigration judge location. ● Witnesses appeared either (1) at the Brownsville tent court or (2) via VTC from the immigration judge location. ● Court observers were only permitted to observe Master Calendar Hearings and Individual Merits Hearings at the brick-and-mortar courts.

Due Process Forever!

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