A new Trump administration policy urges immigration judges to swiftly deny asylum to migrants whose applications they deem unlikely to succeed. The swift denials would circumvent the normal hearing process, which typically takes years to wind through the backlogged courts.
The guidance from the Justice Department, which took effect April 11, states that judges should consider dropping “legally deficient” asylum cases without holding a hearing. Doing that would keep some people who claim to be fleeing persecution in their home countries from having any opportunity to present their case to a judge.
“Adjudicators have the duty to efficiently manage their dockets,” Sirce Owen, acting director of the Executive Office for Immigration Review, which oversees the immigration courts, wrote in the policy memo. “It is clear from the almost four million pending cases on E.O.I.R.’s docket that has not been happening.”
The memo, sent to staff members, says that immigration judges should take “all appropriate action to immediately resolve cases on their dockets that do not have viable legal paths for relief or protection from removal.”
The new policy would inevitably result in judges issuing deportation orders before fully holding what are known as merits hearings, in which asylum applicants can present their claims in detail.
Immigration judges have the authority to decide whether an immigrant can remain in the United States or should be removed. The judges are employees of the Justice Department, not the federal courts, so they are expected to follow policies set by the agency.
The Trump administration took office promising mass deportations of immigrants who are in the country unlawfully. Hundreds of thousands of people who crossed the southern border have applied for asylum and are shielded from removal until their cases have been adjudicated.
Immigration scholars said that the new policy was an attempt to circumvent regulations governing that process and brush aside the complexities of asylum law in favor of swift deportations.
“Immigration judges must use independent judgment, and under the statutes and existing regulations, they must allow a person to submit, supplement and testify to the facts supporting their request for asylum,” said Lenni Benson, a professor of immigration law at New York Law School.
To qualify for asylum, an applicant must persuade a judge that if they returned to their home country, they would be at risk of injury or death because of their race, religion, nationality, political opinion or membership in a particular social group.
The Justice Department memo states that merit hearings should be reserved for asylum cases where there are factual disputes.
“No existing regulation requires a hearing when there are no factual issues in dispute, including when the facts underlying the legal claim for asylum are undisputed, but the claim itself is legally deficient,” it said.
Mary Giovagnoli, an immigration lawyer who served in Democratic and Republican administrations, said judges were essentially being told, “If there is any doubt about the case, you shouldn’t hold a hearing.” Such a policy, she added, “is flipping the notion of due process on its head.”
The backlog in the immigration courts ballooned in recent years as the number of people crossing the border soared. Many migrants who have filed asylum claims did indeed flee persecution and may have strong cases. But others came mainly for economic or personal reasons rather than to escape persecution, and have applied for asylum anyway, knowing that the lengthy court process would allow them to stay in the United States at least for several years, even if their application was ultimately denied.
As of early this year, there were some 700 immigration judges nationwide, each of whom may handle between 500 and 700 cases a year — too few to make much headway against the nearly four million cases now pending in the immigration courts, about two million of them involving asylum claims.
Though President Trump has promised to add more judges to tackle the backlog, his administration has fired at least 20 of them as part of the major staff reductions across the federal government.
The new policy could present special challenges for asylum seekers who do not have lawyers. About half of all asylum applicants have no lawyer, according to a New York Times analysis of immigration court data.
In many of those cases, immigrant advocates say, the applicants have been unable to draft a complete application on their own that lays out the true merits of their asylum claims.
“Navigating a foreign legal system in a foreign language without legal counsel makes it more than likely that applicants may inadvertently submit incomplete asylum petitions,” said Careen Shannon, an immigration lawyer.
“The outcome for an asylum seeker can literally make the difference between life or death,” she said.
Steven Rich contributed reporting.
Miriam Jordan reports from a grass roots perspective on immigrants and their impact on the demographics, society and economy of the United States.
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