DOJ To Speed Up Immigration Cases By Skipping Hearings
Law360 (December 1, 2020, 6:00 PM EST) — The U.S. Department of Justice will no longer hold initial scheduling hearings for immigrants facing deportation who are represented in court, according to a new memo, the latest effort to speed up immigration court proceedings and clear out a swelling case backlog.
Beginning Tuesday, the DOJ’s Executive Office for Immigration Review, which houses the U.S. immigration court system, will cancel master calendar hearings — a preliminary hearing where filing dates are typically set — for immigrants who are free from detention and who indicate they have representation at least 15 days before the hearing.
Instead, the immigration court will send a scheduling order to the attorneys, who will then have at least 45 days to file any briefs or requests for immigration relief, such as asylum.
In a memo announcing the change, EOIR Director James R. McHenry said master calendar hearings are unnecessary for immigrants with attorneys, and this change “will save time and expense for both aliens and representatives and will improve docketing efficiency for immigration courts overall.”
“Needlessly requiring parties to appear for brief hearings — even by telephone or video teleconferencing — simply incurs unnecessary costs for respondents and representatives and creates inefficiencies in case processing for immigration courts,” he said.
Sarah Pierce, an immigration lawyer and policy analyst at the Migration Policy Institute, told Law360 the change was a step in the right direction toward improving immigration court efficiency, but she worried the change could come at the expense of due process for immigrants.
Under the policy, the responsibility to manage filing deadlines and communicate with the court would fall on immigration lawyers, paving the way for immigrants with ineffective counsel — a not uncommon problem in immigration court, where respondents may be unfamiliar with the U.S. legal system — to miss key deadlines.
“If you talk to immigration judges, they say that they recognize when counsel is not good, and frequently talk directly to the foreign national,” Pierce said. “This is eliminating the ability of judges to directly communicate with represented respondents.”
It could also encourage attorneys to push off notifying the court when they begin representing a client so that a master calendar hearing will be held, buying more time to work on their client’s case, Pierce said.
McHenry specifically warned against that practice in the memo, saying “efforts to deceive an immigration judge regarding a respondent’s representation may constitute grounds for disciplinary action.”
The change marks the latest effort on the part of the EOIR to speed up immigration court processing, as the immigration cases backlog balloons past 1 million.
According to the DOJ, the department’s immigration court caseload has increased by more than 800% in the last two decades. This staggering caseload is also reflected at the appellate board, which had more than 65,200 pending appeals at the end of fiscal year 2019 — a marked increase from roughly 12,700 appeals just two years prior, according to the department.
In August, the department proposed a policy to require immigration court appeals to be decided faster by giving the Board of Immigration Appeals, the immigration courts’ appellate board, 335 days to decide an appeal before the EOIR director, a political appointee, would take over.
That proposal would also shorten briefing deadlines and limit board members’ ability to review new evidence on appeal or to reopen immigration cases on their own.
The EOIR foreshadowed that proposal with policy guidance last year laying out stringent deadlines for immigration appeals and allowing the appellate board to summarily dismiss appeals before any briefing.
–Editing by Stephen Berg.
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