I’ve never found John Oliver to be funny or particularly enlightening, and his recent low-rent attack on Dustin Hoffman reeked of self-righteousness and ignorance about the criminal justice system. But there is a clip from his show about Immigration Courts that merits discussion.
Oliver, and the people (some of whom are former Immigration Judges) in his clip, make the following points about Immigration Court, in the following order:
- Immigration Courts in essence handle “death penalty cases” in a traffic court setting;
- There is a gargantuan backlog of cases, with some courts taking up to 5 years to process cases. This is sometimes detrimental to defendants respondents
- People, including minors, have no right to an attorney at the government’s expense, and this seriously hamstrings their defense. Children are not able to properly defend themselves without the assistance of counsel
- There’s a real possibility that Immigration Judges won’t be impartial because Immigration Courts are headed by the executive branch (the DOJ), and not the judiciary.
- The previous point is exacerbated by the fact that the DOJ is headed by Jeff Sessions, who has made anti-immigrant/pro-Trump remarks in the past, and as Attorney General can “assign” any case to himself whenever he wants.
The first remark was made by IJ Dana Leigh Marks and was seconded by Oliver. For shame, because words matter. To state the obvious, no one gets the death penalty for losing in immigration court.
Those who aren’t detained but lose their case aren’t taken into custody before “sentencing.” They – even those with criminal records as thick as a phone book –get to go home and plot their next move (e.g., appeal). Those who are in ICE custody and lose, then either appeal, ask to leave voluntarily, or wait for the next plane to take them “home.” None of that applies to death penalty defendants, who upon getting a death sentence wait in a dark cage until all appeals and requests for a reprieve are exhausted.
The luckless folks in Oliver’s clip who were deported at least have a possibility of not being killed when sent home. As for the traffic court reference, that’s also way off. There are arraignments status conferences master hearings before an trial individual hearing date is set, and those hearings last several hours and can be continued into a further date if necessary.
Second, there is a considerable backlog, and the years-long delays may prejudice people because evidence may get stale or “witnesses could disappear,” as Oliver said. He’s right, but probably not for the reasons he thinks. Many people defend themselves by filing for a waiver, which usually depends on the hardship a relative (who’s a citizen or resident) may endure should she be deported. Those witnesses are usually in bad shape healthwise, and if it takes years, those people may pass on before the trial date.
During the Obama presidency, the gang crises plaguing Central America drove many unaccompanied children to trek across Mexico and into Texas. If they were caught by CBP, they were placed in ICE custody, eventually released to a relative in the U.S., and placed in deportation.
Obama was a good guy for letting them in, but then his administration made these kids a “top priority” in immigration court, meaning that: (i) their cases were placed in the front of the line, and those who were pending trial (e.g., people with waivers) were sent to the back; (ii) judges from all jurisdictions were sent “on detail” to courts at the border to speed up the machine, thus creating more delays in their home dockets; and (iii) many cases were continued, sometimes for years sua sponte, because the kids’ docket had to be heard first. I’ve seen judges hear 3 or 4 kids’ cases simultaneously, like a multiple defendant plea colloquy in criminal court.
When you add Trump’s executive orders making everyone, including those with pending criminal cases, an enforcement priority, the mess gets multiplied. So yes, Trump has played a hand in this mess for being an incompetent deporter-in-chief, but this stuff has been dragging long before he showed up.
It’s true that these kids are in desperate need of some representation, and that Judge Weil’s claim that he can teach immigration law to 3-year-olds so that they may defend themselves in court is insane. It’s one thing for an appellate court to refuse to extend In re Gault to kids in immigration proceedings, but for an associate chief Immigration Judge to make such a fantastic remark is another.
There are some lawyers, law school clinics and religious organizations that have tried to fill some of the void by providing free representation,* but the problem is still there in spades. Part of the problem is that an argument can be made that unless and until criminal public defenders (whose clients are mostly citizens) are properly funded, no money should go to indigent immigration defense. It’s a complicated issue, with no easy solutions.
As for the notion that Immigration Judges could be less impartial with Sessions at the helm, that remains to be seen. Since Trump, Immigration Judges have not changed much: there are those who fantasize about returning to the government’s table (like before, most immigration judges were prosecutors), those who will give your client a fair shake, and everything in between. As to Sessions deciding to hear some cases, that process has been in place for decades and he has yet to take on a case and cause damage.
The part about the asylum-only hearing lasting less than two minutes, there’s nothing new about that because of Trump. Most importantly, that Judge, however callous he sounded, was likely following the law. People who are caught by CBP like that woman are usually placed in expedited removal proceedings, and usually their only defense is asylum.
A USCIS asylum officer interviewed her to see if she has “credible fear” of returning, and no credible fear is found unless she “has been persecuted or have a well-founded fear of persecution on account of her race, religion, nationality, membership in a particular social group, or political opinion if returned to her country.” Threats or physical harm is not enough.
If the officer finds no “credible fear,” the immigration judge rubber stamps reviews the findings. Attorneys don’t get to say a word, and no additional issues may be presented by the client. Business as usual.
*One need not be a licensed lawyer to be authorized by the Board of Immigration Appeals to represent people in court. Your local church lady, with all the good intentions in the world, can be allowed to do so.