The Immigration “Rocket Docket”: Understanding the Due Process Implications
Jayashri Srikantiah, law professor at Stanford and director of the Immigrant Rights’ Clinic at SLS, and Lisa Weissman-Ward, a clinical attorney and lecturer at the Clinic have published a piece The Immigration “Rocket Docket”: Understanding the Due Process Implications in Stanford Lawyer.
These days, the news reports are filled with stories of unaccompanied minors and families being rushed through the federal immigration system. The Stanford Immigrants’ Rights Clinic has witnessed, first hand, how the San Francisco Immigration courtrooms are filling up with children facing deportation. Some of them are appearing in front of an immigration judge by themselves. Others are with their siblings and a parent, usually their mother. The children and families are typically not represented by lawyers. Instead, they must navigate the complexities of immigration law on their own.
As the number of migrants from Mexico and Central America seeking entry into the United States has increased over the last year, the Department of Justice (DOJ) has issued a directive to immigration courts across the country to “fast track” the cases of these more recent arrivals through “rocket dockets.” The so-called “surge” cases involve two categories of migrants: unaccompanied minors (children under the age of 18 who arrived in the United States without an adult) and families, which consist of at least one adult family member and one child.
The DOJ directive appears to be based on the misguided belief that the recently arrived children and families do not have claims to immigration relief, and should therefore simply be returned to their countries of origin. Recent studies show, however, that most of the recent arrivals would qualify for refugee or a type of special status for certain juveniles. A majority of the recent migrants are Central Americans and are seeking refuge in the United States because of gang and drug wars in Guatemala, Honduras, and El Salvador. Because of this, the U.N. High Commissioner on Refugees has advocated for refugee status for arriving Central Americans.
Particularly because so many of the migrants may qualify for refugee or other immigration protections, the rocket docket raises a number of concerns. As a result of the federal directive for immigration courts to prioritize “surge” cases, the courts’ resolution of thousands of other cases that have been pending long before many of these children and families even entered the United States have been delayed. Immigration courts around the country are now removing judges from their regularly scheduled dockets in order to focus almost exclusively on the “surge” cases. The impact is that many of the 375,000 plus cases already pending before immigration judges will have their resolutions delayed many months, if not years. Judge Dana Leigh Marks, President of the National Association of Immigration Judges, and an Immigration Judge in San Francisco, has explained: “We believe it doesn’t make sense to disrupt the rest of the docket to hear these cases quickly because overall these cases will end up needing extra time, rather than less time.”
NMarquez-and-KMcBrideThe rocket docket is particularly troublesome because it substantially hampers recent migrants’ ability to find and retain attorneys. Although the immigration statute does not provide immigrants with appointed counsel, the courts of appeals have repeatedly recognized that an individual facing removal from the United States should be afforded sufficient time to locate and hire an attorney. The rocket docket is likely to interfere with this right. This is because the DOJ directive appears to limit the amount of time individuals are being provided in order to try and obtain counsel. The time currently permitted to locate and hire counsel is only 30 to 45 days. This may be insufficient, resulting in children and families returning to immigration court on a second occasion without the time to locate and hire counsel.
Refugees and others arriving at the border may struggle to find counsel. Immigration nonprofits with the expertise and training to provide low or no-cost services to these children and families are currently at capacity with limited ability to take on new cases at such an accelerated pace.
Migrants, both adults and children, who are forced to navigate the complexities of immigration law on their own fare poorly. Data released by Syracuse University’s Transactional Records Access Clearinghouse (TRAC) show that where an unaccompanied minor is represented by an attorney, the child was allowed to remain in the United States in almost half of the cases. However, where the child was not represented by an attorney, the child was ordered deported over 75% of the time. As a recent class-action lawsuit (filed in the United States District Court- Western District, Washington) has highlighted, children are likely not competent to represent themselves. And a pro se child’s constitutional right to a full and fair hearing may be violated when she must defend against deportation on her own. This is no surprise given that the immigration statute has been ranked by the Ninth Circuit Court of Appeals as “second only to the Internal Revenue Code in complexity.”
Because of what we know about the children and families crossing the border, a “rocket docket” makes no sense. Families and children with legal claims to stay in the United States need time to prepare their cases and find attorney representation, not an expedited process.
For more information about the Immigrants’ Rights Clinic, visit their website at https://www.law.stanford.edu/organizations/clinics/immigrants-rights-clinic.