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The Government Has Not Revealed How Deportation Decisions Are Made

The Board of Immigration Appeals failed to respond to FOIAs about their process for issuing stays of removal. A new lawsuit seeks the information that was withheld.
Central American immigrant families depart ICE custody in McAllen, Texas, pending future immigration court hearings, in June of 2018.

Central American immigrant families depart ICE custody in McAllen, Texas, pending future immigration court hearings, in June of 2018.

Imagine: You are living in the United States without documentation. Years ago, you were in danger of deportation but were allowed to stay by the federal government through prosecutorial discretion. Suddenly, you are caught in a surprise mass raid of your community by Immigration and Customs Enforcement. Your family and lawyer bring your case to the Department of Justice's Board of Immigration Appeals, petitioning board members to recognize that you should be allowed to stay in the U.S. But in as little as 24 hours, ICE has already deported you back to a country where you have not been in years, where you may have no family or friends, where you may even be in danger from the local government or paramilitary forces. The BIA has yet to make a decision about your case—or, perhaps worse, the board has decided that you should not have been deported in the first place. How do you return to your family and your home in the U.S. now?

It is scenarios like this—which affect a portion of the 256,085 people deported each year—that a new lawsuit filed against the BIA hopes to avert by bringing transparency to the procedures, timelines, and other aspects of the board's inner workings. The American Immigration Council, a non-profit that protects immigrants' rights, and the Kathryn O. Greenberg Immigration Justice Clinic, which represents indigent immigrants facing deportation, brought the suit after the BIA failed to respond to Freedom of Information Act requests about their process for granting stays of removal. Such stays allow non-citizens to avoid deportation before their cases are heard by immigration courts.

The advocates behind the suit hope that a court will order the release of information about the BIA's criteria for granting stays and the full numbers of motions for appeals made, opened, and won. Both groups believe such information can be used to better arm immigrants, their families, and lawyers in their fights against deportation.

Pacific Standard recently interviewed representatives from both the American Immigration Council and Kathryn O. Greenberg Immigration Justice Clinic—Claudia Valenzuela and Rikke Bukh, respectively—about the motivation behind their suit against the BIA, its aims, and its importance.


Was there a specific incident or general trend that inspired you to file suit against the BIA?

Valenzuela: Both the Council and the Clinic have heard via reports, and experienced via clients, that individuals facing speedy deportation were not getting their motions for a stay of removal decided in time to avoid their physical removal. As we outlined in our complaint to the federal district court, this scenario is quite problematic as it is extremely difficult for individuals to fight their immigration cases once deported.

Bukh: Since [President Donald] Trump took office in early 2017, ICE has become much more aggressive in its enforcement and has begun increasingly apprehending, detaining, and attempting to deport large numbers of people. There have been a number of examples of ICE conducting mass raids on longtime immigrant communities. Many of the targeted individuals have been ordered deported years ago but were given permission by the federal government to remain in the U.S. through prosecutorial discretion. These non-citizens have lived here for years, even decades, and have since built their families and communities here. Now, these people are at risk of deportation to countries where they fear persecution, torture, or even death.

The stay of removal mechanism was intended to serve as a critical, potentially life-saving safeguard, and it should protect many of these people. However, the BIA's deficient practices surrounding stays have made it ineffective, and the devastating consequences have emerged particularly sharply in the wake of these enforcement actions.

What specific information are you hoping to get out of the BIA?

Valenzuela: We are looking for all policies and procedures regarding stays of deportation filed in conjunction with motions to reopen or reconsider—and in particular how these requests are processed and tracked, timelines for deciding these requests, and how decisions on stays of deportation are communicated to individuals who request them and/or their attorneys. We also requested statistical data on the numbers of stays requested in conjunction with motions to reopen or reconsider, and rates of grants or denials in deciding those motions.

Bukh: We are seeking information that would give us insight into how the BIA makes these decisions, including guidance on adjudicating stay motions and other internal materials, as well as data to show how they make these types of decisions and the impact of current procedures and standards. It is necessary to make this information public so that courts, attorneys, and, most importantly, individuals who do not have representation can meaningfully access and utilize these mechanisms to prevent unlawful deportations.

On what grounds is the BIA refusing to share the information you're requesting?

Valenzuela: The board claims that its information is protected on law-enforcement and national-security grounds. However, it is our position that the BIA has incorrectly invoked these exemptions.

Bukh: The agency has failed to respond in any substance regarding a significant category of information that we requested. It has also said that it does not track "non-emergency" requests for stays in its system and refused to locate such information in its files because, in its view, it would be "burdensome."

How do you anticipate the case will proceed? If the BIA prevails, what then?

Bukh: We hope and expect that the court will see the important need for this information and require the agency to produce it expeditiously. However, the agency may recognize that its responses have been deficient and begin producing these records even before a court order. The important thing is that the public has access to this information. If the BIA were to prevail, we would review the basis for a decision and consider next steps from there.

Valenzuela: We are hopeful that the court will agree that the records we have requested are subject to public disclosure and order the BIA to release all records and statistics. Our requests address precisely the type of information that the BIA should make available to the public because it governs procedural due process for individuals in the most dire of circumstances: imminent deportation.

This interview has been edited for length and clarity.