A few months ago, I wrote that what applicants and lawyers need from the Biden Administration is predictability. Unless we know what to expect from "the system" and when to expect it, people cannot properly prepare their cases or have them fairly adjudicated. Unfortunately, what we have been seeing recently is the opposite of predictability--it is chaos, at least at the Executive Office for Immigration Review (EOIR - the agency that oversees our nation's Immigration Courts). Here, I will offer a few pieces of evidence in support of this proposition--

Exhibit A: The Immigration Court (or lack thereof) in York, PA

The Immigration Court in York, PA is located inside the York County Prison, which houses ICE detainees. After recent negotiations between the feds and the county failed to produce an agreement, ICE announced that all its detainees would be transferred to other facilities by August 12. With immigrant detainees set to leave York, EOIR informed court staff on June 30 that the Immigration Court would close by late July, and that all staff needed to take assignments at other courts (often in distant locations) or find new jobs. Besides being disruptive and demoralizing for EOIR staff (many of whom have been working in York for years, and have their homes and families there), the abrupt decision to close the court has left noncitizen detainees isolated from their families and their lawyers, and will make preparing their cases even more difficult.

After I heard about the closure, I got in touch with Adriana Zambrano at Aldea - The People's Justice Center, which represents noncitizens detained in York. Their clients have been scattered across the East Coast--to detention facilities in Florida, Georgia, and Massachusetts. They are still in the process of tracking down their clients and re-establishing contact. Court dates have been canceled and new judges will likely be assigned (eventually). When they finally reconnect with their clients, Aldea will have to litigate their cases in remote locations, which makes preparing the cases even more difficult. Aldea is a great organization, but it has limited resources, and so dealing with this type of utter disruption is difficult, stressful, and expensive (if you'd like to contribute to this worthy non-profit, you can do so here).

It seems to me that it did not have to be this way. Even if detainees were required to be transferred out of York, their cases could have remained with the York Immigration Court (since most cases these days are done remotely). EOIR could have chosen to keep the court operating, or at least closed it in an orderly manner. Such a move would have made it easier for attorneys to complete their cases and serve their clients. It would have also been less demoralizing for EOIR overall (indeed, it reminds me of when the Trump Administration relocated two USDA agencies in order to intimidate all federal employees). In short, abruptly closing the court is bad for detained noncitizens, their lawyers, and for Immigration Court staff.

If you have lost track of a person in ICE custody, you might be able to find them using the detainee locator system.

Exhibit B: Randomly Scheduled Court Cases

It takes time to properly prepare a case for Immigration Court. Normally, we have time--cases are often scheduled years in the future. So the applicant and the lawyer can prepare an affidavit, gather and translate documents, locate witnesses, and prepare a legal brief. But recently, EOIR has decided that cases should move faster. Much faster. And so they have been scheduling Individual Hearings with only a few weeks notice. Worse, they are sometimes scheduling cases without sending any notice at all. The only way a lawyer would know about a case is to check the online portal to see whether a new case has been added to the schedule.

This happened to me recently. We had a case scheduled for a Master Calendar Hearing in 2022. Suddenly, in early July, I noticed that the case had been scheduled for an Individual Hearing on August 23, 2021. Given that all evidence should be submitted 30 days before the trial date, we were put in the position of having to complete an entire case in only a couple weeks. If I had only one case with one deadline, this might not be so bad, but I have many cases with many deadlines. Not to mention family obligations and other life responsibilities. The result is obvious - without proper time to prepare a case, the case will not be as well prepared.

It is possible to file a motion to continue (delay) the Individual Hearing. However, it often takes judges weeks to rule on such motions, and so we would have to prepare the case anyway. In addition, many clients do not want to delay their cases, and so even explaining this to the client is difficult. In our case, we had luckily completed some of the work for this particular case, and so we should be able to prepare well enough. But I have plenty of other cases where we would be forced to ask for a delay if EOIR randomly set the case for a short-notice hearing.

Why is EOIR doing this when it so obviously harms noncitizens and deprives them of a fair hearing? I have no idea, and again, it seems there is a simple solution. Call or email attorneys, ask whether they have cases that are ready to go, and offer them the short-notice dates. Or at least contact attorneys in advance to inquire whether a particular case can be ready by a particular date. That way, applicants who are prepared can get sooner court dates, and applicants who are not prepared will not arbitrarily be denied their right to due process of law.

Exhibit C: Changing Covid Protocols

As things open up in the nation's Immigration Courts, litigants and attorneys are being left largely in the dark. Should we prepare for Individual Hearings or will they be postponed? Will the judge send us an order to submit written pleadings in lieu of the Master Calendar Hearing? Will MCHs go forward in person? Who knows? EOIR has a web page to specifically address the impact of the pandemic on court schedules, but it is not very informative. For this reason, we lawyers are left to rely on notices through our liaisons, or information gleaned from fellow attorneys. Noncitizens without lawyers do not have access to this information and cannot easily know how their case will proceed.

As usual, there is a solution. Each court should have its own web page, and information about court openings and closing should be posted there. The web page should be included in all correspondence, so everyone is aware of it. For the time being, the only way to know whether a court case is moving forward is to check the specific case and if that does not work, to call the court and ask.

Perhaps EOIR's current woes are related to the transition from one Administration to another. But while all these issues get sorted out, asylum seekers and other people in Immigration Court are suffering. The Biden Administration needs to cut the chaos, get organized, and ensure that litigants' due process rights are protected.

Originally posted on the Asylumist: www.Asylumist.com