The Trump administration is tearing down due process and it is worrisome.
(Editor’s note: An earlier version of this post had misstated the number of undocumented South Asians in the United States. The post has been updated,)
By Rekha Sharma-Crawford
There is a silent truth in the South Asian community — truth that often gets swept under the rug of green card delays and H-1B visa caps. And it is the truth that there is approximately a million undocumented South Asians in the United States. With an increase in enforcement, many of these individuals are finding themselves faced with having to appear before one of the 425 Immigration Courts across the United States. The threat of deportation is real, and they should be worried.
Immigration Courts are administrative courts. As such, while they are under the Department of Justice, they are susceptible to political influences. Starting with former Attorney General Jeff Sessions, the goal of the current administration has been to try and tackle the nearly 800,000 case backlog which currently exists. To get there, the Attorney General — both Sessions and the current Attorney General William Barr — has mandated that the immigration judges complete 700 cases a year. If they don’t, they are penalized in the place where it hurts them most: their pocketbooks.
By tying their case completion goals with the immigration judge’s performance evaluation, the Department of Justice has made one thing known: due process must take a back seat to case completion. And in fact, that is exactly what is occurring in immigration courts across the nation. Judges are rushing hearings, denying continuances, and stacking cases. This is all being done against a backdrop of one of the most complicated areas of law, which has the power to render decisions that can alter people’s lives, plunge them into life threatening situations or destroy happy and healthy families. This is happening.
It isn’t, however, just the immigration courts which are under attack. This week, Attorney General Barr announced steps to allow even the appeals process within the immigration court system to short cut due process. When a person loses their case before the immigration court, they can appeal to the Board of Immigration Appeals, or as it is often called, the BIA.
This body is supposed to ensure that any mistakes made by the Immigration judge is prevented and the law is properly followed. The rule change that Attorney General Barr proposes, however, will make it easier for the BIA to give these cases a cursory review with little else. A rushed hearing with almost no real appeal process to protect erroneous decisions.
The cornerstone of any democracy is the idea that a person be given a fair and full hearing before everything they hold precious is taken away; a robust appeal process is just one more piece of that foundation. If Attorney General Barr is successful in pushing forward the policy announced, immigration court proceedings will be left as a mere formality before deportation is ordered. For South Asians who normally shy away from the topic of deportations, the aggressive agenda of immigration enforcement may no longer allow for such a passive approach.
(Rekha Sharma Crawford is a well-known immigration attorney. She is a frequent instructor at the American Immigration Law Foundation Litigation Institute and speaker at the American Immigration Lawyers’ Association national conference. In 2018, the Kansas Bar Association honored Rekha with the Courageous Attorney Award.)