Elizabeth Keyes is an immigration litigator and a professor of immigration law at the University of Baltimore School of Law.
Supporters of President Trump’s draconian immigration policies often say they’re not anti-immigrant; they are just supporting the rule of law.
For example, as The Post reported this week, the administration had sought last year to round up thousands of asylum-seeking families in 10 cities, based mostly on “in absentia” orders of removal — deportation orders for people who did not show up for their court hearing. That sounds like the rule of law, right? People who don’t show up for court need to face the consequences, right?
In 15 years representing immigrants, I have yet to meet someone who wants to skip a court date. My clients anxiously await their court hearing notices, knowing it is critical for them to appear and make their case for asylum. Statistics bear this out: Ninety-six percent of asylum seekers released from detention show up for court. The reasons some don’t appear are misunderstood, and the Trump administration’s own policy fast-tracking the most recent arrivals are making all of these reasons more common. Consider these possibilities:
- Some immigrants do not receive notices at all. Perhaps the mail just doesn’t arrive. Perhaps the immigrant has updated his address with the court, as required by law, but the change never got into the system. Perhaps a Customs and Border Patrol officer simply entered the information incorrectly. Perhaps the court sends notice to a wrong or incomplete address and the overburdened judge hearing her 38th status hearing that morning does not notice. Yes, it is also possible that the immigrant gave the wrong information. Although I have never seen that, it probably happens from time to time. But the overwhelming weight of my experience is the opposite.
- Some immigrants go to court and are turned away. This happens less, but it does happen. In the court where I practice, dozens of people wait in the hallway each morning to check in with a guard who speaks no Spanish. The guards do their best to manage chaos, but often I see someone holding a piece of paper showing they have a court date, and the guard says, no, they’re not on the list.
- Sometimes there is confusion at their Immigration and Customs Enforcement check-in. Most people with a court date also must check in with ICE that same day. A few of my clients have shown me they went to the ICE check-in but then the ICE officer told them they did not have court that day. The check-ins are, again, chaotic and overwhelming. My guess is when this happens, it is an honest error. But an honest error still results in an in-absentia order.
Here is the thing about errors. Anyone in the overstressed border and court systems can make a mistake, from the immigrant, to the officer at the border, to the official sending the court notice, to the security guards, to the ICE officer at check-in. But only one person bears the cost of the mistake: the immigrant who fails to show up in court.
Since November 2018, the Trump administration has expedited the cases of recently arrived “family units” — people highly likely to be seeking asylum. By increasing speed in a system already stretched to its breaking point, the administration makes errors more likely. The prioritization of only the most recent arrivals sharply reduces the chance of preventing the consequential errors described above. Yes, if they can find a lawyer, and prove somehow that they never received the notice or have some other exceptional circumstance, they can reopen their case. But finding a lawyer takes time and, often, money, and newly arrived immigrants often lack both and may be deported before they are able to fight the in-absentia orders. Meanwhile, adjudicating motions to reopen diverts valuable time from judges who would rather be advancing litigation, not undoing past mistakes.
More profound rule-of-law problems exist, from the border, where the administration restricts how many people can apply lawfully for asylum on any given day, to the interior, where applicants struggle to find the legal representation vital to proving their asylum cases. But this roundup of thousands based upon orders generated by a system rife with mistakes also offends the rule of law. Then-Homeland Security Secretary Kirstjen Nielsen and immigration official Ronald Vitiello apparently resisted the Trump roundup plan, but only because of the optics and a lack of detention bed space, not because they cared about the rule of law.
I do care. We need to put resources into the system so that mistakes are fewer, and we need to ensure that immigrants do not pay the steepest of prices for errors that are not of their making.
What we have now is not the rule of law. It is chaos. And asylum seekers pay the price.