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Many of you have heard reports of immigrants being detained by ICE (U.S. Immigration and Customs Enforcement) after attending immigration court. To be clear, these are not people the judges have ordered removed; rather, they are immigrants in the process of applying to stay in the United States. Many have pending asylum applications. It appears they are being detained in order to streamline deportations and to make it harder for immigrants to exercise their rights to apply for protection. The advisory below summarizes what has been happening and explains the consequences of failing to appear for a scheduled hearing in immigration court.
Last Wednesday, May 21st, I witnessed two people apprehended by ICE as they exited an immigration courtroom. Both had active cases and had appeared in court as required, and DHS (the Department of Homeland Security) had previously chosen not to detain them. Approximately 40 people were arrested by ICE at the Chicago immigration courts that day. In the last two weeks, we have heard reports from all over the country of ICE agents waiting to detain immigrants as they leave immigration courtrooms. Many of these immigrants have never been arrested or have been arrested only for minor crimes that resulted in no jail time.
This appears to be a coordinated effort between ICE attorneys in court and ICE officers. ICE attorneys appear to have lists of cases that they are asking the immigration judge to “dismiss,” which is a request to end the deportation case. If a case is dismissed, ICE can then place the noncitizen in “expedited removal” proceedings, a process with fewer protections and rights. Someone in expedited removal proceedings does not have the right to request a bond from an immigration judge; they do not have the same right to appeal, and the cases often result in swift deportations. Once the judge dismisses the case, then ICE officers are present to detain the immigrant and process them for expedited removal. This tactic is clearly intended to strip away the protections provided by the immigration court system.
The consequences of being detained without bond are severe. It is harder to speak with an attorney, because calls with attorneys must be coordinated with the jails, which are not always responsive or cooperative. It is exceedingly difficult to obtain evidence for the case while detained. Many detainees complain about conditions in detention. And of course, detainees are separated from their families indefinitely. The sheer volume of detainees has greatly increased the time spent waiting for a trial date. Detainees are often moved from one detention center (jail) to another with little or no notice, which can further delay the immigration court process. Even if a detainee wins their case, the government can appeal, resulting in many more months of detention. I have had conversations with multiple detainees who prefer to be deported than remain detained indefinitely, even if they have strong cases to remain in the United States. Importantly, DHS has greatly expanded the group of people it believes can be placed in expedited removal proceedings. Previously, only very recent arrivals were placed in expedited removal proceedings; DHS now seems to suggest that nearly anyone who was caught near the border at any time can be placed in expedited removal proceedings and detained without bond. Thus, more people with strong cases will be induced to abandon their applications because the prospect of remaining in detention indefinitely is unimaginable. Again, many of these detainees have never been arrested for any crime, yet are being held without bond.
Because the risks of detention are so great, it is understandable that many people are afraid to come to immigration court. However, if a noncitizen skips an immigration court hearing, the judge almost always orders the person deported in their absence. This means that obtaining legal status from within the United States will be extremely difficult, if not impossible. Furthermore, if you depart the United States, you may be barred from returning to the United States for five years due to failing to appear at a hearing. Because of the consequences of failing to go to court, we recommend that people try to attend court over WebEx, a video platform, instead of appearing in person. Not all judges permit this, but many do. Usually, a request to use WebEx must be approved by the judge in advance.
We understand that this is a scary time, and MMH is here to support you in every way possible. We will continue to post updates as we learn about new developments, and we hope everyone is staying safe.
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