New Guidance Encourages Judges to Toss Out Asylum Claims Without a Hearing

EOIR Acting Director Sirce Owen is transforming the immigration courts one memo at a time.

If you don’t know the name Sirce Owen—you should. Owen is the Acting Director of the Executive Office of Immigration Review (EOIR), the agency in the Department of Justice that oversees the immigration courts. Owen has worked at the EOIR for several years now.

Whether you agree or disagree with the current administration’s approach to immigration policy, one thing is certain: Owen is in a unique position of power because she can tell hundreds of immigration judges how to do their jobs.

Telling judges what to do is a power that few other people have and the uniqueness of this position comes from the fact that the immigration courts are not an independent judicial body, but are part of a law enforcement agency. The reasons for this are beyond the scope of this post, but I am working with a team of research interns at the moment to help illuminate the fascinating history of the courts and help explain how we got the court system we have today.

Through a barrage of memoranda issued since January, Owen has been quietly yet dramatically remaking the immigration courts to more closely and fully align to President Trump’s objective of mass deportation.

Although I have not done a complete analysis of all of the available policy changes, based on the memos I have read and after talking with people closer to the changes, the memos appear to focus on further undermining the independence of immigration judges, removing judges that are unfavorable to the current administration’s policy position, and removing any barriers to rapid deportations.

For example, in early February, Owen rescinded a previous memo that more strongly directed immigration judges to ensure language access for people in court.

While most of these memoranda have flown under the radar, a recent memo has drawn criticism for its far reaching impact on asylum seekers. The memo titled “Pretermission of Legally Insufficient Applications for Asylum” gives immigration judges the authority (or affirms their purported pre-existing authority) to refuse to even consider asylum applications that the judge considers to be incomplete in some way.

As a quick review, asylum is a form of humanitarian relief that immigrants file in immigration court using an I-589 form. It is difficult, but not impossible, for immigrants to submit complete and well-substantiated asylum applications due to the various legal and procedural issues involved. This is why having an attorney is such a strong predictor of success in court.

Under normal circumstances, once an asylum application is submitted to the court, the court will conduct an individual hearing to evaluate the merits of the asylum case. This is no walk in the park. Between 50 percent and 70 percent of submitted asylum applications have been denied in recent years, and far more people who were qualified to submit an asylum application did not do so because of a lack of legal representation.

What Owen’s memorandum does is further limit the number of people who even get to have their cases heard in court by encouraging judges to treat asylum applications with minor issues as if they had never been filed in the first place.

Based on initial reports from immigration attorneys, it seems like this could include a range of fairly simple omissions or deficiencies—or even questionable claims of minor omissions or technical deficiencies. It’s beyond my expertise to explain the full range of what this could include, since this really gets into the details of administrative law.

But the takeaway is pretty simple: just as no one should be kicked out of an emergency room for forgetting to fill out a box on a form, immigrants shouldn’t lose the opportunity to present an asylum case just because a judge claims they didn’t cross a T or dot an I.

By contrast, ICE regularly issues deficient Notices to Appear with wrong or missing information on it, yet that agency is regularly given the benefit of the doubt, and the courts have allowed ICE to fix those errors at the agency’s convenience.

The practical effects of the memo are that many people who would have had their asylum claims evaluated on substance will never make it to trial. I am aware that reporters are writing articles on the impacts of this memo as I write. But I want to focus for a minute on the opening frame of the memo, because it reflects another subtle but important theme of what is unfolding at the immigration courts right now.

Owen encourages judges to throw out these cases as a docket management strategy in order to address the enormous immigration court backlog, which the memo blames on immigration judges themselves. The memo opens as follows: “EOIR adjudicators have a duty to efficiently manage their dockets. It is clear from the almost 4 million pending cases on EOIR’s docket, that has not been happening.”

It’s true that the number of pending cases has ballooned to nearly 4 million in recent years, and a growing percentage of those are asylum cases. And I do think this backlog presents real challenges to the court. But I also find it absurd to blame this backlog on immigration judges.

Immigration judges do not issue new Notices to Appear: that’s the job of DHS. Judges have no control whatsoever over how many new cases enter the court system.

Additionally, the idea that judges are not managing their dockets responsibly presumes that judges have control over their dockets—which they don’t. Every administration, Republican and Democrat, has imposed new politically-motivated docket control schemes on judges that throw their dockets into chaos and re-order their calendars beyond their control.

Even more absurdly, the EOIR has fired a bunch of immigration judges since January 20 for reasons that appear to have more to do with politics than with professional qualifications. Other judges have felt compelled to retire or step down to avoid the chaotic culture of this administration.

It boggles the mind how one can both complain about the backlog while simultaneously reducing the number of immigration judges who could help address that—unless the new mission of the court is not “fair, expeditious, and uniform adjudication” but rather “deport, deport, deport.”

Maybe I am feeling overly sensitive after spending a day in immigration court this week observing master calendar hearings. I haven’t observed hearings with any regularity since writing my dissertation on the courts a few years ago.

Entrance to the Cleveland immigration court. Author’s photo.

Being back in court reminded me of one of the lessons I have gratefully learned over the years, namely that whatever you might think about immigration politics or about some outlandish immigration judges, an awful lot of immigration judges (as well as court staff, interpreters, and DHS attorneys) take their roles very seriously.

Some people think there should be zero deportations; some people think everyone should be deported. But immigration judges are tasked with making these decisions in the real world—not in the abstract.

That’s an unenviable position to be in, and to the extent that real human beings who have to sleep at night have decided to take on that grave responsibility, I do believe that they deserve a measure of respect—at least from their own agency.

So the idea that the acting director of the EOIR, in this memo and others, would treat their own cadre of immigration judges with such condescension and hostility, while also encouraging judges to pass on this hostility and indifference toward the serious task of evaluating asylum claims, feels counterproductive to say the least.

Just to be clear: I’m not trying to say that judges are the real victims here. Immigration judges chose to be in a position of power inside a broken and unfair system.

But what I’m saying is, after years of research on this topic, I have found that understanding the internal culture of the EOIR and the first-hand accounts of immigration judges themselves is actually crucial to understanding immigrants’ experiences and essential to how we think about improving the system—or at least not making it any worse.

To that end, refusing to give asylum seekers a chance to even present their case and blaming the immigration court backlog on judges are steps backward, not forward.

You can find a copy of the memo below.

Pretermission of Legally Insufficient Applications for Asylum

346KB ∙ PDF file

Download

Download

I want to thank my friends over at Migrant Insider for first alerting me to this new policy in a post earlier this week.

DOJ Gives Judges Green Light to Dump Asylum Cases

Also read Careen Shannon’s excellent post here:

Kangaroo Immigration Courts Become Even More Kangarooish

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