A System Designed for Failure: Due Process Errors in Denver’s EOIR Court

By Ella Iveslatt

As a student observer on DU’s Courtwatch project, I’ve seen over 500 cases through a combination of first-hand observation and behind-the-scenes data analysis. However, there is one case I will never forget. It was October 10, 2023 and I exchanged smiles with a little girl from Guatemala who was at a hearing with her mother. She hid behind the wall of the courtroom benches facing the aisle and popped back out with a giggle, starting a silent game of hide and seek in the middle of the courtroom. She didn’t know what I knew – that the odds were stacked against her and her mother. Only 19.5% of Guatemalan respondents had successful asylum applications in FY 2023 at the Denver Immigration Court. Her and her mother’s future was in the hands of an immigration system that does not guarantee immigrants’ due process rights. 

The Denver Immigration Court: Our Research Findings  

DU’s Courtwatch project is one part of a national-level initiative focusing on the impact of President Biden’s 2021 “dedicated docket”. These dockets have a shorter timeline of 300 days from a respondent’s initial hearing. Rents have limited time to navigate the complex immigration system, and in Colorado, 86% do so without the help of an attorney.  

At immigration courts across the U.S., migrants attend multiple hearings throughout their case. In the first few hearings, respondents receive a “Know Your Rights” brief and the judge determines their removability. In the final hearing, the immigration judge will decide if the respondents will be removed or if relief will be granted. Through observing cases, reviewing research, and interviewing local stakeholders, I have been able to uncover several sources of systemic problems that may result in an unfair case outcome: 

These structural problems and inadequacies add unnecessary added difficulties to a process that is already confusing and disorienting to many migrants. “Asking them to navigate our entire system in a language that is not theirs, with technology they’ve never had before, with a lot of people with third, fourth grade education ... is really hard for them and doesn’t quite seem fair,” one of the attorneys that I interviewed said. Most migrants want to do the right thing and follow the rules, but sometimes the immigration system makes it difficult to do so.  

Address Errors in EOIR Court 

Throughout my court observations and further research, one aspect of the modern court system that often leads to inadequate justice in immigrants’ cases is the implications of errors in the address a migrant has on file with the court. The immigration system still mostly relies on paper mail to communicate with migrants about the date, time, and location of their hearing, and to provide them with information or inform them of scheduling changes. These address errors seemed poignant and preventable, and I decided to do a deep dive into research.  

I noticed that there were inefficiencies, gaps, and errors originating in the immigration itself, as well as government departments (ICE, CBP, etc.) who may make errors due to limited staffing, language barriers, or negligence. Moreover, the immigration system is highly complex and unfamiliar for many migrants who often think the immigration system is one entity, when it is a coalescence of separate agencies. As migrants proceed through their cases, they must check in with the Department of Homeland Security (DHS), the court, and other programs that do not share information about address changes.  

Primary language translation may be inaccessible due to incorrect interpretations and limited interpreters for indigenous languages, and the online systems that allow respondents to check their hearing information are outdated and erroneous. Moreover, migrants in dedicated docket proceedings may face difficulties finding an attorney given the short case timelines, while immigration attorneys may be unwilling to take on these unpredictable cases. In cases with drawn-out timelines, migrants may move multiple times, increasing the likelihood that they have an incorrect address on file.  

Some respondents are confused by an unfamiliar, complex, and disorienting system. The change-of-address form is only provided in English and Spanish (only recently added) and uses complex terminology, making it difficult for migrants speaking other languages to understand. Many migrants have never used an address system like the one in the U.S., particularly those coming from smaller villages in their countries of origin. These complexities and windows for confusion are even more pronounced given the difficulty of accessing affordable attorney representation.  

Finally, many migrants do not have access to affordable, safe, and secure housing. According to one report, the rent of an average one-bedroom apartment in Denver is $1,760 – an 8% increase from 2022 to 2023. For most migrants who are unable to afford the rent in Denver and surrounding metro areas, they are forced to live far away from court, adding additional barriers for migrants without transportation access. Some migrants may also have unstable housing access given disputes with family members or sponsors, abusive situations, or undesirable living conditions.  

A Concluding Discussion  

A migrant who has an incorrect address on file may be ordered removed in absentia by an immigration judge. While judges are advised to warn respondents that showing up late or missing a hearing can result in an in absentia order, a respondent may not be aware they had a scheduled hearing due to an incorrect address on file with the court. Judges are advised to not remove a migrant on their first missed case, but these decisions are discretionary, and some judges may choose to do so anyways. Moreover, migrants may be able to re-open their cases on the grounds of an address error. However, the success of this process largely hinges on attorney representation; 84% of cases that were successfully reopened after an in absentia order were represented by an attorney. The structural inadequacies and problems revealed through my research highlight that these removals may be reflective of insufficient due process in the immigration system. Scholars note that the immigration system essentially sets migrants up to fail, in part due to the pervasive lack of due process. Address errors and the potential consequence of absentia removals is just one of the ways the immigration system sets migrants up to fail even when they try to follow the rules of immigration court.  

Calling attention to this is essential for promoting future change. Immigration court hearings, except for final hearings, are open to the public, making the research happening at Denver Immigration Court and across the nation an important tool for court transparency and accountability. Systemic inadequacies can forever change the lives of migrants – many of whom have come to the U.S. to escape violence and desperate socio-economic conditions. It is easy to forget that people face real consequences behind each court observation and every data point.  

I am always reminded of the little Guatemalan girl from the docket I observed on October 10, 2023. We must demand substantive systemic change for her, for her mother, and for every person who comes to the United States in search of a better life – only to be met with a system that appears to be designed to make them fail. 

Ella Iveslatt is a senior (BA ‘24) at the University of Denver studying international studies and economics with a minor in leadership. Her involvement in the Courtwatch program led her to pursue a student-lead research project on the prevalence, sources, and consequences of address errors in Denver’s EOIR court. After graduating from DU, she hopes to attend law school and eventually practice international human rights law.