How Overenforcement Robs Asylum Seekers of Their Day in Court
As part of the Make Our Voices Heard campaign granted by the New York Community Trust, Immigrant ARC curated guest blog posts, each written by one of our members. These insightful and informative pieces highlight their insights, learnings, and recommendations around the current issues in immigration and immigration legal services. The posts reflect only the views of the member organization authoring them, and don't necessarily reflect the views of I-ARC, or our coalition as a whole.
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This piece was authored by a staff member of the New York Legal Assistance Group.
What happens when the government, notwithstanding (1) viable alternatives such as longer parole and (2) an abject lack of capacity, insists on an enforcement approach to immigration? Thousands of asylum seekers are ordered removed and exposed to the horrors of detention and deportation—through no fault of their own.
In immigration court, an individual can be ordered removed (essentially deported) simply because they failed to appear at their hearing. That removal order is in absentia because it was issued in their absence. A motion to reopen is the legal mechanism for asking the court to rescind the removal order and thereby “reopen” the case closed by the removal order. In the past year, NYLAG has prepared about 40 motions to reopen and  in absentiaremoval orders. We found that most of the in absentia orders came about because of government errors from overenforcement. In other words, asylum seekers with every intention of attending their immigration court hearings were ordered removed because: government agents prevented them from entering the courthouse; they did not receive notice and therefore did not even know they had a hearing; or they were given erroneous information by Immigration and Customs Enforcement (ICE), the agency charged with immigration enforcement. In this article, we delve into each of these issues in turn.
Government Agents Denying Entry to Court Hearings
Almost one-fifth of NYLAG’s motions to reopen were filed for asylum seekers who were ordered removed solely because the guards outside 26 Federal Plaza did not allow them to enter the building on the day of their hearing.
By way of background, in New York City, the largest immigration court and ICE enforcement and removal operations (ERO) office are both located at 26 Federal Plaza, on the twelfth and ninth floors, respectively. Because the government insists on an enforcement approach and checking everyone in (notwithstanding lack of resources), there have been long lines outside 26 Federal Plaza since last year, with asylum seekers lining up starting the night before. As a result, ICE instructed the Government Services Administration guards outside 26 Federal Plaza to allow the first several hundred individuals in line into the building, and turn away the others for a later time.
However, not everyone in those lines is there for ICE; ICE is merely one of several U.S. Government agencies that share the building and its entrance. Predicably, the guards began to confuse individuals in line for court hearings with those in line for check-ins. They would bar asylum seekers with mandatory court appearances from entering while reassuring them that they could reschedule. These people were subsequently ordered removed because the guards prevented them from appearing at their court hearings on time.
The clients for whom NYLAG filed these motions to reopen had shockingly similar experiences. They all arrived at 26 Federal Plaza early in the morning in time for their hearings. The guards refused to let them enter and told them to come back the next day or send an email to reschedule (it turns out the email address was for rescheduling ICE check-ins). They even tried to reason with the guards by showing their hearing notices or using Google translate to explain that they had a court hearing that day. The clients were ordered removed in absentia while they were just outside the building, pleading with the guards. Despite NYLAG’s efforts to notify the immigration court of this issue, the problems with the guards have persisted since summer of last year and continue to occur.
In summary, hundreds of asylum seekers were likely ordered removed in absentia while they were standing right outside of the courthouse—all because ICE insists on in-person monitoring of asylum seekers that it knows it does not have the capability to monitor. As a consequence, not only have thousands of people stood for hours in the freezing cold (and soon to be sweltering heat) on a daily basis, but hundreds of people have now been flagged for deportation.
EOIR Issuing Erroneous Notices to Appear
In more than one-third of the motions to reopen we filed, asylum seekers did not receive notice of their hearing.
In most of these cases, NYLAG clients were never notified of a date and time for their hearing. Because of overenforcement and the resulting immigration court backlog-- As of December 2022, 1,565,966 individuals were waiting for asylum hearings--very few Notices to Appear (NTAs), which are the charging documents that explain why someone is being put in removal proceedings, contain the date and time of individuals’ first court hearings. Rather, they often state that the hearing will take place at “a date to be set” and “a time to be set.” Then, the immigration court fails to follow up with mailed hearing notices containing the actual hearing date and time. Sometimes, the United States Postal Service returns the mailed hearing notices to the court as undeliverable (and that fact is visible in the record of proceedings), yet the court orders the respondent removed regardless. In other instances, the record indicates that the hearing notice was mailed, but the respondent does not receive anything in the mail.
In one notable case, a fifteen-year-old child who entered the United States alone received not one but two hearing notices, both containing the wrong hearing date and time, both of which were after the actual date of his hearing. Accordingly, another several hundred (or thousand) asylum seekers were likely ordered removed in absentia because EOIR failed to provide accurate notice of their hearing. This again, is because the government insisted on placing recently-arrived asylum seekers in removal proceedings, and thereby created an administrative burden that EOIR was not equipped to handle.
ICE Providing Incorrect Information
Finally, in another one-fifth of the motions to reopen NYLAG filed, asylum seekers were ordered removed in absentia because of ICE’s errors.
In many cases, ICE gave asylum seekers incorrect information about their hearings at their check-ins. Some NYLAG clients received false information about their removal proceedings. For example, one client was told at an ICE check-in not to return to 26 Federal Plaza for a scheduled court hearing the next month because ICE was “flooded.” In other words, the ICE officers at her check-in mistook her court hearing for a subsequent ICE check-in and told her not to come. As a result, the client was ordered removed in absentia for failing to appear at her hearing. Another client was told at an ICE check-in that her immigration court hearing would take place in several weeks. When she went to court on the day that they indicated, she learned that her hearing actually took place several days prior, and that she had been ordered removed in absentia. As the foregoing client experiences show, ICE will confuse ICE check-ins for immigration court hearing dates or provide asylum seekers the wrong hearing date, likely because it is beyond capacity due to overenforcement. Moreover, check-ins—where there is a risk that ICE provides misleading information leading to an in absentia order—could be avoided altogether if ICE would simply grant longer periods of parole rather than requiring check-ins
In addition to incorrect information about their removal proceedings, ICE also creates confusion among asylum seekers. For one, ICE (at worst) misleads asylum seekers about the distinct roles that ICE and EOIR play in removal proceedings, or (at best) fails to clarify the difference. Many asylum seekers who have never encountered legal service providers believe—understandably—that ICE and the immigration courts are the same entity. Moreover, due to the immigration court backlog, individuals now deal exclusively with ICE for longer periods of time, adding to the misunderstanding that ICE and the immigration court are the same entity. Secondly, ICE also misleads asylum seekers about the extent to which it communicates to EOIR about the asylum seeker’s proceedings, sometimes inducing reliance. NYLAG’s clients have reported that ICE officers represent that they will relay change of address information to the immigration court or assist them with proceedings. Finally and relatedly, ICE fails to properly explain the asylum seeker’s responsibilities in removal proceedings. For example, one NYLAG client went to an ICE check-in at 26 Federal Plaza shortly after to New York City from a different state. He thought that he had notified the immigration court of his change in address and successfully changed venue by attending this check-in. This was understandable, since he provided his new address to ICE, and both ICE and the immigration court are located in 26 Federal Plaza. Another client was told by her ICE officer that he could help her with any issues regarding her immigration court hearing. When she contracted COVID several days before her hearing, the client thought that she could simply notify the ICE officer and get a new court date from him. She attempted to contact the ICE officer repeatedly to no avail and received an in absentia order of removal.
Lastly, ICE—likely due to lack of capacity—makes costly administrative errors that lead to in absentia orders. NYLAG filed a motion to reopen on behalf of a family of asylum seekers whom the government mistakenly venued in Atlanta instead of New York City. Although the client explicitly stated that she and her family were on their way to New York City from the Texas border, ICE thought that they were going to Alabama. Because of the misunderstanding, ICE gave the client and her family a check-in date in Birmingham, Alabama, and EOIR subsequently set their immigration court hearing in Atlanta, Georgia. And even though the client’s immigration paperwork attested that she had been informed of all of this in her native language of Spanish, the client told NYLAG that no one had explained anything to her, and that no one she encountered actually spoke Spanish. In another case, ICE incorrectly wrote down a client’s address when releasing him from ORR custody—writing “34th Street” rather than “54th Street.” As a result, the client, an unaccompanied minor, never received notice of his hearing and was ordered removed in absentia.
Hundreds if not thousands of asylum seekers were likely ordered removed in absentia because ICE provided misleading or plainly incorrect information about their removal proceedings. This issue, again, stems from the government’s insistence on placing recently-arrived asylum seekers in removal proceedings.
Conclusion
NYLAG’s motion to reopen practice this past year has shown what happens as a result of overenforcement. Whether it be because of the guards outside 26 Federal Plaza, problems with EOIR’s mailed notices, or issues with ICE, countless asylum seekers were ordered removed without their day in court. Because of the government’s insistence on enforcement, they now face detention and deportation back to countries where they face life-threatening persecution. With the United States currently encountering a historic wave of asylum seekers and the end of Title 42, it is now more important than ever that the government reconsider its approach.
