Originally published on November 16, 2018 11:06 am
The parents sat stiffly; some had clearly been crying. Their children, largely oblivious, scribbled with crayons on the carpeted floor of a Denver immigration court. In a matter of months, the judge before them will make 71 life-changing decisions.
Earlier this year, the Department of Justice instructed ten immigration courts around the country to speed up cases of families seeking asylum on U.S. soil. In Denver, that directive is being carried out in a series of group hearings, designed to decide cases in less than a year.
On one day in late October, dozens of families sat before Judge Alison Kane for an initial hearing that lasted less than a half hour. Sheets of paper outside listed their countries of origin: Guatemala, Honduras, El Salvador.
Proponents of fast-tracking these cases say a surge of asylum claims and a massive backlog has drawn out cases for years. Immigration advocates, however, say that cases decided in a matter of months can't possibly allow the evidence to be fully heard - putting families with valid claims in danger.
For one young mother sitting in the Denver courtroom, this is not what she expected. She came to a port of entry between the U.S. and Mexico with her son this summer to ask for asylum. Today, she regrets it.
"I imagined that once I got here, it would be better than crossing illegally," she said through a translator. "They treat us like prisoners. (…) It's like you're being watched with a magnifying glass."
She said she thought claiming asylum was the law-abiding thing to do. Instead, she said she and her son were detained for two days. She was fitted with an ankle monitor and released to join her family, beginning a four-month struggle to navigate the U.S. immigration system amid a flurry of robotic beeps and check ins.
"Because we are both safe, I mean, that I am not worried that one day they will come to the house and kill us," she said. "But it's difficult. Honestly, it's ugly."
In the runup to the midterm elections, President Donald Trump loudly doubled down on anti-immigrant policies, demanding that military troops deploy to the U.S.-Mexico border and threatening to revoke a constitutional right to citizenship for people born on American soil. A proclamation to suspend asylum rights for people who cross the southern border illegally is being challenged by the American Civil Liberties Union in federal court.
In an address at the White House on Nov. 1, Trump called the asylum process "the biggest loophole" that draws people to the U.S. while they wait for their cases.
"And then they never show up — almost," he claimed. "It's like a level of 3 percent. They never show up for their trial."
This is untrue. 89 percent of asylum seekers showed up for their hearings last year, according to the Justice Department's own statistics. The rate of appearance has dipped slightly since 2013, while the number of applications for asylum that are rejected has risen.
Even in its short tenure, Trump's Justice Department has also taken a hardline approach to the immigration court system that it oversees. In April judges were given quotas of 700 cases per year. Then in May a memo eliminated some avenues for judges to independently delay cases through administrative measures. In June a policy that resulted in the separation of migrant parents from their children was called a "deterrent" by administration officials.
The policy to expedite family cases has not been touted publicly or outlined in a formal memo, said Ashley Tabaddor, president of the National Association of Immigration Judges. Instead, orders have been given by supervisory judges.
"When you introduce these types of artificial deadlines and docket shuffling, that pushes back other cases that have been in the system," Tabbador said. "It not only undermines the integrity of the court, in terms of being used as this type of political messaging, but it also makes the backlog even worse."
Ten courts were directed to fast track new family cases: Atlanta, Baltimore, Chicago, Denver, Houston, Los Angeles, Miami, New Orleans, New York City and San Francisco.
A spokesperson for the branch of the Justice Department that oversees these cases, the Executive Office for Immigration Review, confirmed the new procedure. New family cases must be scheduled for an initial hearing within 30 days.
"The courts are instructed to expedite these cases through to their completion," the spokesperson wrote in a statement.
But requests to explain why families were being pushed to the front of the line went unanswered.
"There hasn't been a lot of information put out about exactly what has motivated this," said Matt O'Brien, director of research for the Federation for American Immigration Reform, a conservative think tank that pushes for strict limits on immigration.
"Our opinion is that we should be handling all immigration cases in a way that's equitable and that sticks to the laws as written by Congress," O'Brien said. "If you've been languishing in a removal proceeding for five or six years, why should the fact that someone has come and made an asylum claim that may or may not be legitimate be a basis for them to be moved to the front of the line?"
O'Brien said he would rather see the administration raise the bar on what constitutes credible fear. In that scenario, fewer people would be able to claim asylum at all.
Previous administrations have also chosen to fast-track immigration hearings for groups of people who migrate to the U.S. in large numbers. Under the Obama administration, unaccompanied minors were placed on highly controversial "rocket dockets."
The idea was to remove an incentive for people to come to the U.S., claim asylum and stay for years while waiting to see a judge, said Sarah Pierce, a policy analyst for the Migration Policy Institute, an independent think tank.
The case backlog for federal immigration courts surpassed 750,000 in the last fiscal year, according to the Transactional Records Access Clearinghouse at Syracuse University.
"The Trump administration really wants to get rid of that perverse incentive to come," Pierce said.
But when the process is expedited, she said it gives asylum seekers less time to prepare. Advocates feared that the timeline would prevent asylum seekers from pulling together a compelling case or raising the funds to hire an attorney.
Unlike criminal cases, respondents are not appointed a lawyer if they cannot afford one. Low-cost and pro-bono options are available, but often have waiting lists.
"I really feel like this is an effort to deny - to further deny - due process rights to Central American asylum seekers going through the immigration courts," said Christina Brown, an immigration attorney who specializes in asylum cases.
Long case processing times are often needed for a family to scrape together the funds to hire an attorney and build their case, Brown said. She says a year is too short.
"People literally are deciding to flee for their lives, to go on this dangerous journey to get here, to ask us for protection," she said. "I don't get why they see that as an assault on the American people. They trust the American people, that's why they're coming here."
Even with a hearing, a relatively small number of these families may be allowed to permanently settle in the United States. In the last five fiscal years, more than 75 percent of asylum cases from Guatemala, Honduras and El Salvador were rejected by an immigration judge, according to TRAC.
Translations were provided by Lily Lizarraga.
Durrie Bouscaren is a freelance journalist who grew up in Fort Collins, Colorado. Previously she reported from Papua New Guinea as NPR's 2018 John Alexander Fellow and covered health care for St. Louis Public Radio.
This story was produced by the Mountain West News Bureau, a collaboration between Wyoming Public Media, Boise State Public Radio in Idaho, Yellowstone Public Radio in Montana, KUER in Salt Lake City and KRCC and KUNC in Colorado.
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