It is very true that the immigration laws need a wholesale revision. Congress needs to make substantial changes, regulations need to be re-written, precedent decisions scrapped and new guidance forthcoming. But another change is needed and this change may the hardest of all. It is a change of attitude within the agencies. We have written in this space on multiple occasions about the hostility that elements within ICE have for their political leadership and the “culture of no” within CIS has been well-documented. However, less reported is the blase indifference that many civil servants within the agency take toward the people affected by the way they go about their jobs.
Here is where I am supposed to say that the majority of the people who work for the immigration agencies are hard-working, well-intentioned people laboring under tremendous workloads and inadequate resources. I am supposed to say that those who are indifferent to the human lives in the case before them are far outnumbered by the valiant majority who struggle against the bureaucratic odds to make a difference. Sorry, but I can not say that. I have to say that indifference is the default and care and compassion and vigor are the exception. Such virtues do exist within the immigration agencies, but they are rarely on display. Initiative and “going the extra mile” are snuffed out like weeds in those Round-Up commercials. The overwhelming majority simply have little concern for the people affected by the way they do their jobs. Immigration reform will be incomplete unless it addresses this problem as the power of clerks and administrative staff to harm the interests of immigrants remains immense.
Let’s focus on the Executive Office for Immigration Review (EOIR), the Immigration Court system. Here are just a couple of things that have happened to us in the past few months that show how bureaucrats affect people’s lives by the way they do their jobs:
- Client was detained by ICE. ICE said that he was subject to mandatory detention. We wanted to argue to the Judge that he was not. We filed a request for a bond hearing, which is a matter of right, on October 24. The case was not scheduled until November 27, five weeks after we filed. This meant that our client had to sit in jail for an additional five weeks after we asked for his release before a judge could consider his claim that he should not be detained. Five weeks is a long time to sit in jail when the law says you do not have to sit in jail. The decision on when to give him a hearing was made by the Immigration Judge’s legal assistant. No doubt she was reacting to limits on how many cases a judge can hear on any given day, but the harm of the judge hearing one more case against an individual spending several weeks in jail ought to be considered.
- Client was detained by ICE. When ICE detains an individual that they are placing into removal proceedings, ICE must issue a Notice to Appear (NTA) charging the individual with removability. ICE must file the NTA with the Immigration Court and the Court must schedule the hearing. We requested bond. Although the rules require the Court to schedule a bond hearing for any detained individual regardless of whether an NTA has been filed, the Court’s backlog in recording the filing of NTAs causes the staff to fail to schedule a bond hearing. A hearing was finally scheduled 30 days after the client is taken into custody and the Judge orders release.
- Client was scheduled for hearing on her application for cancellation of removal for 10/31/2012. That hearing was set in December 2011. Hurricane Sandy closed the Immigration Court that day and for several days afterwards. Expecting that the court would reschedule the case once it reopened, we wished to inform the court that we did not need much time for a hearing. In December 2011, the Court scheduled the case for three to four hours of time. However, since then, we negotiated with ICE counsel and agreed that all issues in the case could be resolved in a hearing of an hour or less. On November 15, 2012, we filed a motion letting the court know that we did not need much time, so that the Court could squeeze us in wherever it had time. We made several calls to and left messages with the court’s clerical staff, none of which were returned. We finally spoke with the legal assistant to the judge around December 1, who stated that she had not seen the motion and she would have to look for it, but that she was not going to stop what she was doing to do so. If she found it and the Judge ruled on it, she would give us a courtesy call. On December 4, 2012, we got the call- hearing on December 11! However, on December 5, the rumors started flying- the cap on grants of cancellation of removal had been met and no cancellation grants could be made until October 1, 2013. As these were just rumors, we went ahead with the hearing, traveling to another city to be there on December 11. At the hearing the Judge informed us that, since there were no cancellation numbers, she could not and would not hold a hearing and we could come back in October 2013. So many small acts of initiative could have made a difference here: (1) the clerk could have addressed the motion in a timely manner and we could have gotten on the calendar before numbers ran out; (2) when numbers ran out, the court could have called and rescheduled knowing that we would have to travel to attend the hearing at substantial cost to the client.
- They never call back. Never.
These are problems that are not going to be addressed by legislation. They require a wholesale change in attitude and a lesson in courtesy. This is not simply a problem of
“poor customer service.” I hate the idea of customer service in a government agency. I think they owe us MORE than a business owes its customers. We are citizens, we are a polity and they are our government. They derive their authority from us. A business derives its income from us, which it can choose to accept or not. Citizen vis-a-vis government is entitled to more respect and deference than a Slurpee-buying sap at a Seven-Eleven.
These problems require an understanding that immigration detention is a serious deprivation of liberty that must be limited in duration and for the most serious matters. A culture must grow within the Immigration Court that anything that unnecessarily prolongs detention is to be avoided and that resources will be provided to ensure that immigrants have access to prompt hearings. Employees of the court system must be trained to recognize that they should do all they can to ensure that detained individuals have access to process. A person is charged with murder is put in front of a magistrate judge within 24 hours who sets bail (or not). A person charged with overstaying a visa is often detained for weeks before he gets review of his detention. How does that system make sense?
This post was mostly cathartic. Future posts will explore some of the legal underpinnings of the immigration detention regime. For example, a U.S. Supreme Court decision many years ago said that removal proceedings are civil and not criminal and many criminal procedural protections are, therefore, unavailable in removal proceedings. Given the militarization of the border and the use of detention during removal proceedings, we wonder how much of that flawed doctrine still can stand.