Processing Issues in Immigration Courts Upending New Yorkers’ Cases, Lawyers Say

Attorneys with New York’s Immigrant Family Unity Project (NYIFUP) say they are facing logistical, technical, and communication problems with their cases, which are backlogged across the U.S. Immigration Court system.

This article originally appeared in Spanish. Translated by Daniel Parra. Lea la versión en español aquí.

In recent months, immigration attorneys have had quite a few procedural problems in the New York immigration courts. While they have not begun to collect data on how frequent these problems are, they say they are happening often enough to delay proceedings and impact clients’ cases, leaving them vulnerable to deportation.

The reopening of immigration courts in July 2021 has been chaotic after the pandemic shut them down completely, attorneys say. Recently, court proceedings have been taking place in-person while others are still being held remotely — a determination made by judges’ preferences that are communicated to attorneys through Excel spreadsheets and emails distributed by the public information office at the Executive Office for Immigration Review (EOIR). The system has been prone to miscommunications and mix-ups, according to immigration lawyers, several of whom sent a letter to the immigration court on Dec. 27 asking it to intervene.

“Some of the information in those communications contradict other New York City EOIR Courts’ Standing Orders, which state that an attorney of record can appear via telephone for Master Calendar Hearings (MCHs) without the need for a motion seeking remote appearance, and also state that the respondent’s appearance at remote MCHs is waived,” the letter reads.

In addition to issues with in-person and remote hearings, there have also been delays in obtaining motions for Individual Hearings (IH), a key portion of a deportation case—in which an immigrant applying to remain in the U.S. presents their case for staying—which in some cases have remained unresolved for several months.

Technical problems have not been lacking either, specifically with OpenVoice’s audio conferencing service used in remote hearings, and as a result, attorneys have not been able to hear most or all of the hearings and they have had to be rescheduled for later.

Because of this series of problems, a group of attorneys who are part of the defense program for detained immigrants facing deportation called the New York Immigrant Family Unity Project (NYIFUP) complained to Assistant Chief Immigration Judges Khalilah Taylor, Anna C. Little, and Ubaid ul-Haq.

City Limits contacted EOIR and the spokesperson for the northeast region said that “EOIR responds to official correspondence through appropriate channels, and continues to welcome feedback from practitioners, respondents, and other stakeholders.”

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“These communication problems are extremely frustrating,” the attorneys say in the letter. “Further, it is inefficient and wasteful for our staff to prepare for hearings that end up canceled or rescheduled, and to spend time verifying which hearings are happening and in what format.”

Each of these technical, logistical, or communication problems can permanently change the course of a case and transform the lives of immigrants, who in some cases are left vulnerable to deportation. Claudine-Annick Murphy, a staff attorney at Legal Aid Society, is handling the case of a minor who has Special Immigrant Juveniles (SIJ) status. SIJ protection is created for children who have been abused, abandoned, or neglected by their parents. Under this classification, minors may qualify to become Lawful Permanent Residents (or LPRs) or apply for asylum and obtain a work permit.

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In August 2021, her client’s case was removed from the calendar. “I received the notice to cancel the hearing, but I never received the scheduling order,” she said. Court administrators said they would send a copy of the cancellation notice and scheduling order, but it never arrived, she says. Between August and November, she exchanged emails explaining that she could not respond to a scheduling order she never received.

On Nov. 30, 2021, an individual hearing was scheduled for Jan. 5, yet just two days earlier, on Jan. 3, Murphy received the hearing notice. Attorneys are required to file all case documents more than 30 days before the individual hearing date, so a last-minute notice is almost like missing the filing deadline, jeopardizing their case.

“The post-stamp on the envelope indicates that it was mailed out on Dec. 27, almost a whole month after the hearing notice was generated on Nov. 30, and it was delivered to us on Jan. 3, two days before the individual hearing,” she clarified via email.

“It was very scary to get notice two days before his final deportation hearing that he was going to have this hearing, and we had nothing, no case to present the court,” Murphy explained.

Despite Murphy’s objections asking for the hearing to be vacated as soon as possible, the court did not agree. Instead, the court administrator asked Murphy to be the one to file a motion to continue, a procedure that could have negative consequences in her client’s case since judges view delays and rescheduling as difficulties in arguing a case.

In the letter, the attorneys argue that “the constant last-minute changes in schedule impair our ability to fully represent our clients and to prepare properly for hearings.”

All of these delays and problems have further delayed Murphy’s client’s ability to get into the already long line to apply for asylum, without the possibility of applying for a work permit in the meantime.

The U.S. Immigration Court system is currently staring up the largest number of pending cases in history: 1,596,193. According to data recently released by the Transactional Records Access Clearinghouse (TRAC) at Syracuse University, New York’s immigration courts alone have 167,614 cases pending — the largest backlog in decades. The average wait for pending immigration cases in New York is 1,011 days, according to TRAC.

“Since the start of the Biden administration, the growth of the backlog has been accelerating at a breakneck pace,” TRAC’s report highlights. “These findings suggest that the Immigration Courts are entering a worrying new era of even more crushing caseloads — all the more concerning since no attempt at a solution has yet been able to reverse the avalanche of cases that Immigration Judges now face.”

So far, the EOIR has not responded to the attorneys’ letter. On Friday, Jan. 28, it postponed master and individual hearings for certain respondents through Feb. 7, 2022, due to ongoing COVID-19 rapid spread nationwide.