Bureaucracy, Helplessness and Hope: A Typical Day in Immigration Court
ICE raids and Border Patrol arrests tend to dominate the headlines, but less attention is paid to what comes next: court hearings where immigrants struggle to understand what’s being asked of them, overworked attorneys try to stay on top of their cases and judges must explain complex laws to immigrants with no legal background or assistance.
Immigration Judge Renee Renner is on the final case on her morning docket.
The Mexican national in front of her is asking for more time to prepare his asylum application. He’s already pushed off the case many times – it’s been pending since Immigration and Customs Enforcement first issued a charging document, or a “Notice to Appear,” in 2013 – as he waited to secure an attorney.
“I haven’t had money before,” the man explains, adding that San Diego’s steep rents have made things even harder. He finally managed to scrounge and save for an immigration lawyer, but he had only reached out to some a few days earlier, and they all told him the deadline for his application was too close.
He ticks off the names of some attorneys who said they’d take his case if the judge agreed to grant an extension.
The attorney for the government – which is seeking to remove the man from the country – opposes the extension request. After all, his case has already been going for five years.
Renner decides to give the man one last chance.
This is “the absolute last time,” she warns. If he can’t get an attorney by his next hearing – a few weeks away – he’ll be expected to turn in an application he filled out himself.
“If you don’t bring it next time, I will have to deem your application abandoned,” she says sternly. “Do you understand?”
The man assures her he does, then he and his girlfriend, who was in the courtroom for the hearing, speed out. They’re worried their parking meter has expired.
A typical morning at the downtown San Diego Immigration Courtroom involves a lot of waiting – waiting in line to go through security, waiting in line at a window to submit documents, waiting for your courtroom to open, waiting for your turn on your judge’s docket.
It’s reflective of the legal processes at work. As Renner goes through her docket, scheduling new hearings, it’s clear that most of her next openings aren’t until 2019.
On a recent Thursday, I sat through roughly a dozen hearings to try to get a better sense of what exactly happens in immigration proceedings. What I saw was a mix of bureaucratic mundanity punctuated by moments of raw anxiety, helplessness and hope as immigrants struggled to understand what was being asked of them, overworked immigration attorneys tried to stay on top of their cases and a judge not only had to adjudicate cases and immigration applications, but often found herself having to explain complex laws to immigrants with no legal background or assistance.
At the downtown courtroom, judges only hear cases of people who are not currently detained – they’re allowed to continue living and working while they await their hearings. That means there are more attorneys, family members and even friends showing up for hearings than for those individuals who await their cases in detention centers. Many cases drag on for years, and while people go through long procedures to fight deportation, gain legal status in the country, apply for green cards or change visas, their day-to-day lives in this country continue.
It’s an entirely different ambiance than the immigration courtrooms at the Otay Mesa Detention Center, where all the hearings are for detainees – most of whom don’t have attorneys or visitors in court. I once witnessed a Brazilian asylum-seeking man there beg an immigration judge to “just deport me” in Portuguese as she read him his rights and gave him a list of low-cost and pro bono attorneys who might help him. He was so convinced of the hopelessness of his plea that he wanted to just get what he saw as an inevitable deportation over with.
Downtown, most of the people who appear in court have been living in the community or are staying with family or friends. It can provide for more hope – and often their cases are more complicated because of their U.S. connections.
Attorneys come in and out, often dealing with multiple cases being heard in different courtrooms. One attorney, Karla Kraus, sits next to me and asks why I’m taking notes.
When I say I’m a reporter trying to learn more about the immigration court system, she says, “Well, it’s an administrative court. Hearsay is admissible.”
Because immigration court is an administrative court, some of the formal rules of evidence are different than they are in criminal cases. Hearsay – the introduction of rumors or information given by people that can’t be substantiated – doesn’t fly in criminal court. In immigration court, judges can choose to give hearsay less weight, but it’s not outright inadmissible.
On this particular morning, Renner is hearing “master calendars,” which are short, preliminary hearings on immigration matters where the individual (and his or her attorney, if they have one), the government attorney and the judge decide how they will proceed with the case. After these initial hearings – of which there are sometimes more than one – come “merit hearings,” where most actual arguments are made relating to the case.
The individuals with attorneys are first up in the docket.
One immigration attorney asks for more time to prepare his client’s materials. His client hasn’t given him the initial charging document from ICE – and he hasn’t received it from the government attorney, either.
This isn’t uncommon. Discovery – the process in which the two sides in the case disclose the documents and evidence they plan to bring up – isn’t entirely unavailable in immigration proceedings, but it’s limited.
But in instances like these, where documents so crucial to the case like a charging document take a while to make it into an immigration attorney’s hands, it can further draw out an already lengthy process.
Another attorney asks that her client’s removal proceedings be terminated. At their last hearing, she had asked that the case be postponed because her client had a Deferred Action for Childhood Arrivals application pending. Her client has since received DACA status, and should no longer be a priority for removal proceedings, she argues.
The government attorney opposes.
Renner agrees with the immigration lawyer, moving to close the proceedings against the young woman, whose young children have come to court with her.
But keep in mind, the judge warns, that if the woman’s DACA status expires or if she commits a crime, “the government can revive the charges.”
Then there’s the case of a Creole-speaking Haitian man, who is also seeking asylum. Renner tells him that she couldn’t get an in-person interpreter because one can only be secured if there are five cases in a certain language – there’s only a Spanish interpreter present.
The man says he can understand a little Spanish and they decide to proceed in Spanish, at least for this preliminary hearing.
The individuals without attorneys go last. Most of them end up asking for more time to try to find attorneys.
Renner warns them to not hire “notarios” – non-attorneys who are allowed to appear in court in some Spanish-speaking countries but who can’t represent clients here. She also advises them on what paperwork they need to bring when meeting with potential attorneys.
For one asylum-seeker, who has submitted medical records from Guatemala with his application, she explains that he needs to find a translator. The court will only accept documents that have been translated into English. She also explains that the translator can’t just be someone he knows, but someone independent of the case.
Renner decides to begin hearing one man’s case without an attorney, as this isn’t his first time before her. She then steps into an unusual role that immigration judges often have to play for those without attorneys.
Renner asks the man a series of questions, essentially off of a script.
How many times have you come to the U.S.?
When was the first time? Was it legally or illegally?
How long did you stay? Why did you leave?
Did you voluntarily leave or were you sent back?
How long were you in Mexico before you crossed back?
How long have you been in the U.S.?
Are you married? Do you have U.S. citizen children? Are either of your parents citizens or residents?
Have you been convicted of a crime?
Do you have any fear of returning to Mexico?
In absence of an immigration attorney, Renner will try to figure out whether the man is eligible for any form of immigration relief. (Individuals aren’t guaranteed representation in immigration court. Only about 37 percent of immigrants have legal representation in their removal cases, according to the American Immigration Council.)
The man tells her he’s been in the United States for more than 10 years and is married to a U.S. citizen, with children and stepchildren.
That makes him eligible to fight for a form of deportation relief and a pathway to legal status, called “cancellation of removal.”
Renner tells him what he’ll need to show: proof he’s been in the United States for at least 10 years, proof he hasn’t been convicted of any crimes that would disqualify him from seeking this form of relief, proof that his deportation would cause his family “exceptional and extremely unusual hardship.” He’ll also have to prove “good moral character.”
If he’s successful, he may be able to get a green card. Renner advises him that he can still find an attorney before his next hearing.