Clerical Errors and their associated due process violations on expedited review

By Zoe Henderson, Kayla Hofmann and Maria Ventura

On 28 May 2021, the Departments of Homeland Security and Justice announced a new Dedicated Docket of asylum cases for expedited review. Under this policy, families that have been apprehended between ports of entry, placed in removal proceedings, and enrolled in the Alternatives to Detention (ATD) program are to have their cases decided within 300 days of their original master calendar hearing, vastly quicker than the several years it takes an average case to be heard and decided. As we will discover, this is not nearly enough time for a person to prepare their case or access legal representation. The time constraints also make it so that clerical errors are exacerbated. To evaluate the impact of the Dedicated Docket on due process for asylum seekers as a part of the Korbel School’s Qualitative Research Methods course in partnership with the Colorado Asylum Center, our group interviewed seven immigration attorneys and advocates about their experience with expedited review. Our analysis revealed that the expedited review process and the Dedicated Docket are inherently violations of due process and a farce of justice because of the very limited time frame of the cases, the variability in approval rates by judges and court districts, and because of issues with paperwork and clerical errors. Furthermore, these three fundamental issues are rooted in the arbitrary and deterrent nature of the asylum system. The immigration review process in the United States is designed to arbitrarily and systematically deny asylum at all possible points. Though the asylum process has many flaws that prevent due process, we will specifically be addressing the clerical errors and bureaucratic red tape that create a more complicated system for asylum seekers and are exacerbated by the rapid timeline of the Dedicated Docket.  

The Dedicated Docket, in conjunction with COVID-19, caused court dates to change continuously and rapidly, and asylees were not always being notified properly. As the entire process is expected to occur within 300 days of the master calendar hearing, there is no room for error on the part of the courts. Yet, clerical errors are one of the most significant barriers to due process. Notifications to Appear (NTAs) are typically issued to people to notify them of their court dates and also hold an expectation that one will comply with these orders and appear in court. There have been problems where court dates will change or someone will be summoned to court, but they will never receive their summons and will either show up to court when they do not need to or will miss a court appearance. If someone misses a court appearance, they can be ordered removed in absentia. Because these NTAs were not being sent to correct and most up-to-date addresses, there is a clear lack of access to justice. On this topic, one practicing immigration attorney explained, 

The Court was sending out notices for people and for master calendar hearings and so when they were sending off these hearing notices. However, the Court got a return notice saying, like, this person is not available in their current address, then they would send another hearing notice knowing really well that they won't appear because you've got a return notice so within like a span of three weeks, they will send another hearing notice and they will actually, um, knowing that they won't show up, they will give an in absentia order which just means, you know, they didn't show up so they're going to report it. (Participant 8)

This clearly shows that the courts are sending NTAs to people with the knowledge that these notices are not being received, and in some cases will try resending the NTAs to the same addresses that they were returned from (the Return Docket). There have also been instances where the courts were aware that NTAs were blatantly not being delivered to people: “A whole slew of people live in a place that USPS doesn’t deliver to and the court knows it and can’t send them any notices. [...] we see a lot of people, again, being ordered removed in absentia even though they had no idea that they had court.” (Participant 8). The changes to court dates are most harmful to those who have no representation: “we see a lot of last-minute cancellations of these court hearings due to COVID, and of course, people who are unrepresented don’t get those notices either. So, they’re just showing up to court thinking they have a hearing and then not knowing how to find out when their hearing has been rescheduled for” (Participant 6). Last minute changes, cancellations, and other time-related issues do not allow the person to adequately prepare for their cases. The expedited speed of these cases also cause an overburdening of the court system, so adequate time is not given to each case to ensure that asylees get NTAs sent to them at their correct and most updated addresses. Overall, it has been reported that “the adjudication of cases at the administrative level has fallen below the minimum standard of legal justice” (Salyer 2020). By administrative level, Salyer means both errors in the cases and court proceedings and the behavior of judges towards lawyers and others in court. Whether NTAs are sent to incorrect or undeliverable addresses by accident or because of ill intent, it is a violation of due process in that the asylum seeker is not getting the chance to be heard and have a fair case.

There are also multiple language barriers that impede asylum seekers’ due process rights. One large barrier is a lack of access to asylum applications in languages other than English. In order to fill out the paperwork, and in particular, the expansive I-589 form in which an individual makes their asylum claim, applicants must have the ability to read and write in English, as the application is only available in English. As many asylum seekers do not have that level of English proficiency, the asylum application represents a barrier to accessing justice. Moreover, the ways in which the form is filled out has large impacts on the outcomes of cases, as two of our researchers experienced while assisting asylum seekers to fill out and file their applications for asylum at a clinic hosted by the Colorado Asylum Center. Prior to beginning the I-589 forms, local immigration attorneys walked through the form and told them how to phrase their stories, where to put them, and which boxes to check to potentially allow better outcomes in court, despite that this should be a simple, objective form. A layman would not have this information, so without the aid of a professional, they would not be able to fill their forms out in ways that ensure the best outcomes. Translators are also necessary to ensure that all applicants have the ability to understand and fill out forms. Finding or being able to afford their own translator or lawyer that can help the client fill out paperwork is difficult, creating a lack of access to necessary services when filing asylum paperwork. The limitations in ability to find a translator or lawyer are only exacerbated by the time constraints of expedited review. 

Translation and interpretation have long posed an issue in immigration courts, especially when translations are needed for uncommon native languages (Trujillo 2021). This issue is further exacerbated by the speed of the Dedicated Docket, the inability to find available interpreters because of the ongoing pandemic, and by having to hold court over WebEx when courts are open. Especially in Master Calendar hearings, there can be many translators translating at the same time in different languages, which can lead to confusion in the simplest of times, and chaos when internet or technological issues arise (Participant 10).

The COVID-19 pandemic led to the temporary closure of immigration courts across the United States. Since courts have reopened, the use of WebEx video conferencing in lieu of in-person court has also created violations of due process. As the expedited docket backlog is so large, Judges will be pressured to get through cases as quickly as they can, which causes each case to be rushed. While the judge and Department of Homeland Security attorney may appear via WebEx, the asylum seeker must physically appear in court. Not only does this place the asylee’s health at unnecessary risk, but it also leads to due process violations because of both technological issues and because of the added pressure of navigating court online:

Technological things get in the way - I mean there's definitely times, where like ‘Oh it's raining like in San Antonio, we can't hear anyone,’ and they would blame it on the rain, but it was, like, probably other things, you know. So basically like, you know, you have a judge that’s appearing in San Antonio, you have a translator that you can't see, and you're in a tent court in front of other people [...] it's like it's just a weird intimidation. (Participant 10)

The complications of holding court online with the added stressors of technological issues create further due process violations. Moreover, in online court, “you're not even in the same room as the judge and you don't you don't get to see the DHS attorney because they're appearing telephonically” (Participant 11). This visual disconnect has been proven to create an inability to empathize with others because they are not face-to-face in the real world (Morgan 2018). As many times the outcomes of asylum cases depend on the empathy of the judge, this format of court may lead to worse outcomes for asylum seekers. The fact that every asylum case is rushed also makes it so that each asylee does not have ample time to tell their story and ellicit empathy from the judge. Furthermore, despite the fact that the online court is supposed to be equally accessible, an observer must go through a much more complicated process to access a hearing on WebEx instead of simply walking into a courtroom. This leads one to believe that online court decreases the ability of a court accompanier to notice and report state violence and due process violations (Yarris 2021).

An immense, inexcusable number of clerical issues and errors occur throughout the United States asylum system and throughout an application’s progress. These issues, such as NTAs sent to incorrect locations, inadequate translation and interpretation, overwhelming paperwork, and hybrid virtual and in-person court, have all been exacerbated by the Dedicated Docket’s expedited timeline. Ending the Dedicated Docket and moving its cases back to the regular docket and timeline would mark a crucial first step in increasing access to due process for asylum seekers under expedited review, as well as Colorado’s public funding of immigration legal defense (Martinez 2021), so more asylum seekers can have an attorney’s assistance and advocacy navigating the system. However, ending the Dedicated Docket will not be enough to restore due process to asylum seekers. The asylum review process in the United States must be completely overhauled to eliminate the underlying violations of due process inherent in the current system.

Works Cited

Martinez, A. (2021, June 11). Colorado Becomes First State to Publicly Fund Immigration Legal Defense. Law Week Colorado. https://www.lawweekcolorado.com/article/colorado-becomes-first-state-to-publicly-fund-immigration-legal-defense/

Morgan, N. (2018). Can you hear me?: how to connect with people in a virtual world. Harvard Business Press.

Trujillo, J. (2021). The US Immigration Court System and the Illusion of Justice.

Salyer, J. C. (2020). Court of injustice: Law without recognition in U.S. immigration. Stanford University Press.

Yarris, K. E. (2021). ICE Offices and Immigration Courts: Accompaniment in Zones of Illegality. Human Organization, 80(3), 214–223. https://doi.org/10.17730/1938-3525-80.3.214