Groups Sue EOIR Over Access to Justice

Democracy Forward, Jan. 12, 2021

"Unlawful EOIR Rule Makes Sweeping Procedural Changes That Will Deny Due Process, Cause Wrongful Deportations, and Worsen Case Backlog

As Trump Admin Scrambles to Finalize Policies in Waning Days, Coalition of Immigration Justice Orgs File Suit to Block EOIR’s Dramatic Changes

Late Monday, five immigrant justice groups filed suit against the Department of Justice’s (DOJ) Executive Office for Immigration Review (EOIR) — which operates the nation’s immigration courts — for issuing an unlawful rule that severely restricts immigrants’ access to justice. The rule deprives immigrants of access to a full and fair hearing, limits their right to present evidence and to select legal counsel of their choosing, and eliminates essential means of securing immigration relief. EOIR’s sweeping rule violates the Immigration and Nationality Act, the Administrative Procedure Act, and the Constitution’s guarantee of due process, among other things.

The Catholic Legal Immigration Network (CLINIC), Brooklyn Defender Services (BDS), Florence Immigrant & Refugee Rights Project (FIRRP), HIAS (founded as Hebrew Immigrant Aid Society), and the National Immigrant Justice Center (NIJC) brought the suit. NIJC and Democracy Forward represent the plaintiff group.

“In its final weeks, the Trump administration has unlawfully moved to deny immigrants their right to a fair hearing in court,” said Democracy Forward Counsel and Legal Analyst Ben Seel. “Under the guise of ‘efficiency,’ the outgoing administration has made sweeping changes to immigration court procedures that will deny immigrants due process, cause wrongful deportations, and will actually result in less efficient proceedings.”

“With just days left before the end of a historically anti-immigrant presidency, the Trump administration once again jammed through regulations that would change the rules in immigration court to further take away immigrants’ rights and their ability to pursue defenses that by law they are eligible for,” said Andrea Sáenz, Attorney-in-Charge of the New York Immigrant Family Unity Project at Brooklyn Defender Services. “Not only has the administration failed to follow the proper procedure to change the standards, but worse, this regulation will result in more people being unjustly deported and separated from their families.”

“The rule is yet another attempt by the Trump administration to rush devastating changes to EOIR, at the expense of noncitizens’ due process rights and access to the immigration courts,” said NIJC Senior Litigation Attorney Mary Harper. “As surely intended, the rule will drastically undermine Plaintiffs’ ability to represent and serve noncitizens, resulting in the removal of individuals who may otherwise be eligible for protection.”

“This Rule strips important due process rights from noncitizens and will particularly harm the detained pro se litigants that the Florence Project serves,” said FIRRP Legal Director Laura St. John. “For many, a fair day in court can mean the difference between living in safety in the U.S. or being returned to harm or even death. These Rules, like so many others, prize efficiency over fairness, and they are actually counterproductive because undermining the fundamental fairness of the appellate process in the name of efficiency will ultimately increase delays and litigation.”

“HIAS joined this court challenge because the Trump administration failed to respect the rulemaking process as it stripped away due process for asylum seekers,” said Mark Hetfield, president and CEO of HIAS, the international Jewish humanitarian organization that provides vital services to refugees and asylum seekers. “Rushed through by the Trump administration on its way out of power, the challenged regulation would hollow out the right of asylum seekers to appeal denials of their claims, putting the lives of HIAS clients at risk.”

EOIR’s unlawful rule, published on December 16, upends existing procedures within EOIR’s immigration court system, especially those governing EOIR’s Board of Immigration Appeals (BIA).

The rule’s sweeping changes strip immigrants of due process and other statutory protections and create possibly insurmountable barriers to seeking relief that Congress designed, like asylum, protection for victims of trafficking or crime, and special juvenile status for unaccompanied children. The rule imposes excessive hardships on the advocates who serve immigrants in court.

IT DOES SO IN THE FOLLOWING WAYS:

• Slashes the time allowed to file briefs, making it much harder for immigrants to find counsel to represent them in appeals before the BIA and for their counsel to represent them in proceedings;
• Effectively prohibits the BIA from considering evidence that immigrants are newly eligible for protection, such as asylum, based on a change in fact or law;
• Upends procedures for determining voluntary departure, a form of relief that avoids the devastating consequences of a removal order, such as prolonged family separation;
• Allows the BIA to make findings of fact despite its status as an appellate body — and without an adequate opportunity for parties to challenge those facts;
• Eliminates immigration judges’ and the BIA’s authority to administratively close proceedings or reopen them under their “sua sponte” authority to correct manifest injustices, which will prevent individuals from obtaining relief and deprive judges of essential case management tools;
• Politicizes decision-making in immigration proceedings by allowing EOIR’s director — an unconfirmed non-judicial official — to intervene in cases with new adjudicatory powers while imposing timeframes that prioritize speed over fairness.

In issuing the rule, EOIR contradicted protections enshrined in the law, failed to provide a reasoned explanation for its decision, and failed to provide a sufficient notice and comment period in violation of the Administrative Procedure Act. The rule also violates the Fifth Amendment’s guarantee of due process and was unlawfully issued by the EOIR director, who lacks the necessary authority to issue these drastic changes. The plaintiffs have asked the court to vacate the rule in its entirety and prohibit it from taking effect.

The plaintiffs’ complaint for declaratory and injunctive relief was filed on January 11 in the U.S. District Court for the District of Columbia. Read it in full here."