The on again, off again world of bond hearings for asylum seekers

This is the world many of our clients live in.

Asylum seekers with a credible fear of persecution cannot get a bond hearing
On April 16, 2019, the Attorney General issued a decision in Matter of M-S-, 27 I&N Dec. 509 (A.G. 2019), in which he overruled the Board of Immigration Appeals decision in Matter of X-K-, 23 I&N Dec. 731 (BIA 2005), and concluded that all aliens subject to expedited removal (including those encountered between the ports-of-entry and in the interior of the United States), who are referred for full removal proceedings under section 240 of the Immigration and Nationality Act (INA) after being found to have a credible fear are ineligible for release on bond.

Asylum seekers with a credible fear of persecution can get a bond hearing
On July 2, 2019, the U.S. District Court for the Western District of Washington issued a nationwide preliminary injunction in Padilla v. ICE, No. 18-928, 2019 WL 2766720 (W.D. Wash. July 2, 2019), ordering the Department of Justice’s Executive Office of Immigration Review (EOIR) to conduct bond hearings within seven (7) days of a bond hearing request by a class member, and to release such aliens if a bond hearing is not conducted within seven (7) days. The class of aliens to whom the preliminary injunction applies includes: “All detained asylum seekers who entered the United States without inspection, were initially subject to expedited removal proceedings under [INA § 235(b)], were determined to have a credible fear of persecution, but are not provided a bond hearing with a verbatim transcript or recording of the hearing within seven days of requesting a bond hearing.”

Asylum seekers with a credible fear of persecution cannot get a bond hearing
On Friday, July 12, 2019, the U.S. Court of Appeals for the Ninth Circuit granted a temporary stay of the district court’s preliminary injunction.

Asylum seekers with a credible fear of persecution can get a bond hearing
On July 22 a federal appeals court ruled that asylum-seekers must continue to receive bond hearings while the court considers the Trump administration’s appeal to deny bond hearings with procedural protections to asylum seekers.

The Ninth Circuit Court of Appeals rejected the Trump administration’s bid to arbitrarily jail asylum-seekers without a bond hearing while it considers whether to keep in place a court decision by a federal district judge in Seattle. The decision held that the policy of denying bond hearings violated due process. The district judge also previously held that the government is required to provide basic procedural protections during the hearings, but the appeals court declined to require the government to put those protections in place while the appeal is pending.

As the administration does all it can to harm asylum seekers, the Northwest Immigrant Rights Project, American Immigration Council, and the American Civil Liberties Union fight to protect their rights. We thank them.

DHS radically expands Expedited Removal

On July 22, 2019, the Department of Homeland Security (DHS) announced a new policy designed to dramatically expand expedited removal to apply throughout the United States to anyone who has been in the U.S. for less than two years.

The policy will take effect on July 23, 2019, before the public has the opportunity to comment.

Expedited removal gives near-total authority to immigration officers to apprehend, cast judgment upon, and remove someone from this country.

Now DHS seeks to apply that power nationwide, subjecting thousands of people to deportation without a meaningful chance to collect evidence, consult with an attorney, or come before a judge.

Under the new rule, people will be denied a fair day in court even if they might qualify for legal relief.

The administration’s answer to the humanitarian situation at our southern border should be to improve the immigration court system; instead DHS is eliminating the judges from the process altogether.

That is not the kind of due process envisioned in the Constitution.

Thanks to the American Immigration Lawyers (AILA) for this information.

The misinformation campaign continues

The latest case-by-case records from the Immigration Courts indicate that as of the end of May 2019 one or more removal hearings had already been held for nearly 47,000 newly arriving families seeking refuge in this country. Of these, almost six out of every seven families released from custody had shown up for their initial court hearing. Usually multiple hearings are required before a case is decided. For those who are represented, more than 99 percent had appeared at every hearing held. See Figure 1. Thus, court records directly contradict the widely quoted claim that “90 Percent of Recent Asylum Seekers Skipped Their Hearings.[1]
Families who attend immigration court hearingsFigure 1. Attendance at Immigration Court Hearings
by Families After Release
(Click for a graphic)

Under our current system, there is no legal requirement that immigrants actually receive notice, let alone timely notice, of their hearing. Given many problems in court records on attendance and in the system for notifying families of the place and time of their hearings, these appearance rates were remarkably high.

This is an excerpt of a report by TRAC at Syracuse University. The view the full report click here.

Serving our sisters and brothers in the immigrant community

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