A Win for Transparency

 

In a Win for Transparency, Court Orders Board of Immigration Appeals to Make Immigration Court Decisions Public

The Second Circuit has found that the Board of Immigration Appeals (BIA) must publish immigration decisions, reversing an earlier federal district court decision.

The case challenged the Department of Justice’s longstanding practice of failing to publish immigration decisions by the BIA—the highest administrative court deciding immigration cases—in any forum that could be easily accessed by the public. The decision in the case, brought by the New York Legal Assistance Group, highlights agencies’ obligations under the Freedom of Information Act (FOIA) to make certain records publicly available without individuals or organizations having to file individual FOIA requests to obtain them.

The provision of FOIA that requires agencies to proactively disclose certain agency records is sometimes called the “reading room provision” because agencies maintain FOIA Reading Rooms on their websites that can be accessed by the public. Documents that must be provided to the public without specific requests include: policies that have been adopted by the agency; agency manuals and instructions to staff; and “final opinions . . . as well as orders, made in the adjudication of cases.”

Under FOIA, documents that fall under the reading room provision cannot be “relied on, used, or cited as precedent by an agency” unless they are publicly available, or the party opposing the agency has “actual and timely notice of the terms thereof.” The fact that the unpublished decisions were cropping up in immigration court and BIA decisions was very problematic.

The Second Circuit reversed a previous ruling, finding courts do have the ability to order the BIA to make documents publicly available, not just available to an individual FOIA requester. In doing so, the court also disagreed with the D.C. Circuit, finding it had wrongly interpreted FOIA to prevent courts from ordering public disclosure.

Plan to Process

 

The Administration Unveils Plan to Process Asylum Seekers Subject to 

the Migrant Protection Protocols

The Trump administration sent over 70,000 people who came to the U.S border seeking asylum back to Mexico to wait for court hearings. This so-called “Migrant Protection Protocols” (“MPP”) program placed people in serious danger and made it nearly impossible for anyone to win protection. Court hearings under MPP were indefinitely suspended in March 2020. This left thousands of people stuck in Mexico in limbo.

One of President Biden’s first actions instructed U.S. Customs and Border Protection (CBP) not to put any new people into the program. Three weeks later, his administration has announced a plan to allow the thousands of people still waiting in Mexico to enter the United States.

Who will be allowed to enter?

Under the Biden administration’s plan, the only people who will be allowed to reenter the United States are the roughly 25,000 individuals who have pending MPP cases.

Importantly, far fewer people are likely still waiting at the U.S.-Mexico border. While exact figures are not available, it is likely that many have already returned to their home countries or left for safer locations in Mexico.

The ENV Program

The Electronic Nationality Verification Program: An Overview

U.S. immigration agencies use a range of programs to deport—or remove—certain noncitizens from the United States. Under the Trump administration, the Department of Homeland Security (DHS) and two of its component agencies, U.S. Customs and Border Protection (CBP) and U.S. Immigration and Customs Enforcement (ICE), expanded their avenues for removal. One method, the Electronic Nationality Verification (ENV) program, was touted as a way to expedite the repatriation of certain Central Americans.

There is little public information about the ENV program—only fleeting references by officials or in obscure reports. Yet since 2019, the government has used ENV to rapidly deport thousands of people. This fact sheet describes the ENV program, whom it affects, and highlights concerns regarding the program.

What is the Electronic Nationality Verification Program?

Under the ENV program, CBP coordinates with ICE’s Enforcement and Removal Operations (ERO) to “remove eligible [individuals] with a final order of removal to their native countries.” As of 2019, the agencies can remove nationals of El Salvador, Guatemala, and Honduras through ENV. It is not clear whether more countries participate as of January 2021.

A pre-existing program with Mexico—called the Interior Repatriation Initiative (IRI)—provided the framework for ENV. ICE ERO piloted IRI with Mexico in 2012 and made it a permanent initiative a year later.

The ENV and IRI programs enable DHS to quicky deport from the United States a person with final removal orders without obtaining travel documents from the foreign national’s government. Prior to ENV, if an individual arrived at the border without a valid passport from their home country, ICE was required to contact the individual’s consulate to verify their nationality, as well as to obtain formal travel documents. ICE could obtain “electronic travel documents” for nationals of El Salvador, Guatemala, Honduras, and the Dominican Republic. Under ENV, not only are travel documents produced electronically but a person’s nationality is verified electronically, sometimes through the use of biometric identifiers. In some instances, people are deported within hours of arrival.

DHS announced in 2019 that it was expanding ENV. CBP has deemed ENV a successful “migration mitigation” strategy and indicated plans to implement ENV and other strategies in full after the COVID-19 pandemic.

Immigrants in Court Hearings

 

Immigrants Appear for Their Court Hearings, New Data Shows

Do most immigrants show up for their immigration court hearings? A new report released by the American Immigration Council reveals that the answer to this question is a clear “Yes.”

As the Biden administration begins its overhaul of the immigration enforcement system, we must ensure that our policies are based on facts. The report makes clear that many of our harsh detention policies relied on flawed data that suggested immigrants “disappear” before court hearings.

The Overwhelming Majority of Immigrants Appear for Their Immigration Court Hearings

The new study—authored by Professor Ingrid Eagly with the UCLA School of Law and Steven Shafer with the Esperanza Immigrant Rights Project—is based on government data of nearly 3,000,000 immigration court hearings spanning more than a decade. The study found that 83% of all nondetained immigrants attended every single one of their court hearings.

15% of those immigrants who did miss a court hearing and were ordered deported were later able to successfully reopen their cases and had their removal orders rescinded. This finding suggests that many of the small number of individuals who fail to appear in court wanted to attend their hearings, but never received a hearing notice or faced some hardship in getting there on time.

Government Statistics are Flawed

The study found that official government statistics significantly overstate the rates at which immigrants are ordered removed for missing court. The government only counts initial decisions by an immigration judge, which are just a subset of all cases.

But when you measure each decision made by a judge as well as pending cases, the picture changes. This complete view reveals that the government’s measurement produces results that suggest immigrants miss court twice as often as they actually do—34% of the time compared to just 17% of the time.