Immigration Judges Are Bewildered by the DOJ's Decision to Slash Legal Guidance for Detainees - Pacific Standard

Immigration Judges Are Bewildered by the DOJ's Decision to Slash Legal Guidance for Detainees

Analysts say the decision breaks the Trump administration's promise to cut the immigration court backlog.
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Demonstrators protest against President Donald Trump in Washington, D.C., on January 30th, 2017.

The Trump administration will halt a program designed to help detained immigrants navigate the United States' complex immigration court system, a move some analysts warn flies in the face of the administration's promises to slash the massive immigration court backlog.

On April 30th, the Department of Justice (DOJ) will halt the Legal Orientation Program, which offers guidance through the Vera Institute of Justice, a legal aid group, to detained immigrants, helping them determine whether and how to try to remain in the U.S. The LOP operates at 38 detention facilities across the country. Without LOP guidance, the entire onus of explaining legal processes and options to detainees falls squarely on the judges, significantly dragging out proceedings at a time when the courts are already overburdened, analysts say.

Immigration judges found themselves perplexed by the move.

"The news was frankly surprising to all of us. None of us had known or been consulted about the decision to halt the program," Judge Ashley Tabaddor, president of the National Association of Immigration Judges, told Pacific Standard minutes before boarding a plane to Washington, D.C., to testify on the immigration court backlog before the Senate Judiciary Committee.

"The overwhelming majority of the judges that are presiding over cases in those detention facilities have told us that LOP has been a very effective tool in making sure the cases are handled in a fair manner and that there is due process for the immigrant," Tabaddor says.

In a press release, the Vera Institute said the DOJ has itself determined LOP "is a cost-effective and efficient way to promote due process and cut through the large backlog of cases, the most significant issue facing the immigration courts today." (LOP has also been praised by Immigration and Customs Enforcement officials.) Vera Institute staff said that they were not immediately able to offer further comment on LOP's closure and its effects on immigrants awaiting hearings at detention facilities.

The DOJ's most recent study on LOP efficiency from 2012 found that "detained aliens' participation in the LOP significantly reduced the length of their immigration court proceedings." (Past studies have yielded similar results.)

Amid ostensible efforts by the administration to reduce the immigration court backlog, it appears to have halted a program proven to expedite and facilitate proceedings.

"LOP has cut down the amount of time the judge has to spend explaining things and answering questions," Tabaddor explains.

Most immigrants standing trial in these proceedings are without legal counsel, complicating the process. "The current program actually makes it easier for judges to hold hearings, particularly with unrepresented immigrants, since the immigrant comes into court having a basic understanding of what their rights are, what forms of relief they may be eligible for, and a basic understanding of the judicial process," says Niels Frenzen, a law professor at the University of Southern California and director of its Immigration Clinic. "The ending of the program will slow the entire process."

For Tabaddor and others, the sudden decision to terminate the program calls into question whether the administration is, in fact, working to ease the burden on the immigration courts. "It certainly raises questions about their stated goal of wanting to bring greater efficiencies to the court and the management of the docket. This has been a proven tool of bringing about due process and efficiencies to an otherwise cumbersome system."

Some analysts anticipate that shutting down a vehicle for information to those standing trial will ultimately create more appeals—and a bigger backlog.

"Limiting the access of immigrants to due process through defunding the Legal Orientation Program, through creating judicial quotas, or through mass deportations, will not reduce backlogs. As we have seen in the past, less process at the immigration judge level results in more appeals to federal court," says University of California–Berkeley law professor Leti Volpp, whose work has focused on immigration law. "The best way to reduce the immigration court backlog would be to reduce how many immigrants are issued with notices to appear in the first place."

Others suggested the end of the LOP would do more than just compact the backlog. "When viewed in total, the administration's efforts will only exacerbate the existing backlog. Immigration judges and the agency do not have the resources to handle the cases that are being thrown their way. In cases where immigrants (and asylum seekers) are represented by counsel there will be significant violations of the applicants procedural and substantive rights," says Richard Boswell, a law professor at the University of California–Hastings College of the Law.

The DOJ did not respond to Pacific Standard's request for comment.

The immigration court backlog saw a surge at the beginning of the year, amid renewed attention by the Trump administration to detaining and deporting undocumented migrants. In the first two months of the 2018 fiscal year, the number of pending immigration court cases skyrocketed by 30,000 to over 650,000, according to a count by Syracuse University.

Trump administration officials have told the press that they aim to slash the backlog to half by 2020. But analysts warn that if reducing the backlog is, in fact, the goal, the administration isn't off to a great start. Earlier this month, the DOJ announced quotas for immigration judges—demanding that they close 700 cases a year. Analysts have suggested that, by rushing cases, the quotas undermine due process and almost guarantee appeals that will, in turn, regenerate the backlog.

"By trying to mandate that immigration judges complete a certain number of cases per year, the end result may be judges leaving the court due to unreasonable working conditions and likewise making it less likely that qualified individuals will want to become immigration judges," USC's Frenzen says. "It might also result in increased errors by immigration judges resulting in more appeals and more remands from appellate courts ordering judges to redo the defective hearing."

If the Trump administration is indeed trying to slash the backlog as it claims, this is a case of poor policymaking, some say.

"While they may want to clear the backlog, I wouldn't call these measures a 'solution' to the problem," says Pratheepan Gulasekaram, who teaches immigration law at Santa Clara University. "If they want to actually solve the problem, they would be increasing the resources available to non-citizens in removal and detention, not cutting out programs. They could, for example, implement more rational, common sense, and humane enforcement tactics, rather than their current policy of reckless hyper-enforcement that place more people in the backlog with no discernible public safety benefits."

But insofar as the administration's decisions affect the legal system, the implications are much broader than the immigration courts or even immigrants, Gulasekaram explains. "Threats to due process and fairness affect all Americans."

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