The Executive Office for Immigration Review (EOIR), the agency within the Department of Justice that includes the immigration courts and Board of Immigration Appeals, issued a proposed regulation making dramatic changes to the process through which immigrants can appeal deportation decisions. The proposed rule would dramatically undermine access to appellate review of deportation orders, causing particular harm to those who cannot afford counsel.
Unfortunately, this rule is part of an alarming trend. The president has been explicit in his intent to remove due process protections from immigrants in the United States, stating that “When somebody comes in, we must immediately, with no Judges or Court Cases, bring them back from where they came.” This proposed regulation is yet another in the line of actions taken to achieve this explicit intent. The U.S. government has rendered the immigration court system dysfunctional through numerous unlawful decisions issued by the Board of Immigration Appeals (BIA) and the Attorney General, its refusal to exercise prosecutorial discretion, and policies and practices that short circuit due process. Having intentionally ground the immigration court system to a near halt, the government now claims the answer to the problems it created is more measures that compromise due process, stack the deck against immigrants and asylum seekers, and diminish the impartial and independent role of immigration judges and BIA members.
Specifically, this rule would significantly curtail the due process rights of immigrants and asylum seekers, compromising their access to counsel on appeal by reducing the availability of briefing extensions, their right to present evidence by limiting their ability to reopen and/or remand matters for legitimate bases, and their right to seek relief by disallowing administrative closure of cases. Rather than borrowing best practices from other judicial systems, these regulations will only further increase court backlogs, flood the federal courts of appeals, and diminish the integrity of the immigration court system.
The human toll of due process infringement is hard to understate. For immigrants, curtailing due process all but guarantees summary deportations. Deportation is not just a death sentence for many, including countless asylum seekers; its mere prospect and the endless fight to prevent it causes unimaginable stress and harm to the loved ones of those facing the specter of deportation. Due process operates as a life line for immigrants, asylum seekers, and their families. EOIR’s intentional failure to protect this lifeline aligns it with a callous and racist agenda to purge immigration courts of their main actors: the immigrants and asylum seekers fighting for protection.
The U.S. immigration court system suffers from profound structural problems that have eliminated its capacity to deliver just and fair decisions in a timely manner and public confidence in the system. These the proposed rules will make it more difficult for unrepresented noncitizens to obtain counsel, and more difficult for unrepresented noncitizens to prevail on appeal. NIJC submitted comments opposing these rules and calling on this administration to abide by its responsibility to provide fair and impartial hearings to hundreds of thousands of immigrants and asylum seekers.