Congressman Panetta Leads Coalition Requesting Basic Due Process for Asylum Seekers

Congressman Jimmy Panetta (CA-20) led a coalition of 37 Democratic Members of the House of Representatives urging Attorney General Jeff Sessions to provide basic due process rights to asylum seekers. The request also highlights concerns about the systemic obstacles faced by individuals and families lacking legal counsel during immigration court proceedings and are ordered removed in absentia.

Families seeking asylum in the United States can be removed in absentia after a missed court date due to reasons largely outside their control. This includes families that did not receive sufficient notice of their hearing from the Executive Office for Immigration Review (EOIR), were provided incorrect government information on their hearing notices, had serious medical problems, experienced language barriers, or had severe trauma or disabilities. As a result, thousands of asylum seekers have received removal orders without having their case heard by an immigration judge, even if they had passed a credible fear interview with an asylum officer.

Rather than use in absentia removals, the letter encourages the Justice Department to make administrative changes that ensure asylum seekers get fair hearings and are provided basic due process rights.

"Clearly, there are insurmountable barriers in our nation's current immigration court system for asylum seekers and their families," said Congressman Panetta. "Significant structural problems have enabled the Administration to order thousands of legitimate asylum seekers removed without a fair hearing. The Attorney General has the power to make administrative changes that will increase access to our immigration court system, and ensure a more fair process."

Text of the Letter

Dear Attorney General Sessions:

We write to express our concern and request information regarding structural and bureaucratic obstacles to individuals and families wishing to comply with our immigration laws to attend required hearings and to plead their case before a judge, especially if they are not represented by legal counsel.

In 2014, the United States began to experience an influx of migrants from El Salvador, Guatemala, and Honduras seeking humanitarian assistance and safety. Many women and young children arrived at our southern border to present themselves to border agents with the intent of applying for asylum in compliance with our laws. Many families were unable to obtain legal representation and faced a difficult and complex immigration system riddled with structural and bureaucratic obstacles rigged against them. Ultimately, many were ordered removed in absentia because they unintentionally, and often due to mistakes by the government, missed an immigration court hearing.

Using data obtained through the Freedom of Information Act (FOIA) regarding the representation and removal of 29,808 families from July 2014 to November 2016, a study conducted jointly by the Asylum Seeker Advocacy Project of the Urban Justice Center (ASAP) and the Catholic Legal Immigration Network, Inc.(CLINIC) found that 22,270 asylum applicants, or 75 percent of the 29,808 families who entered the United States between July 2014 and November 2016, did not have legal representation. Additionally, in 24,862 cases, or 83 percent of the 29,808 families, an immigration judge ordered a family removed. Of those ordered removed, in 21,041 cases, or 85 percent, the order was issued in absentia. Moreover, a high percentage of these families ordered removed in absentia had passed a credible fear interview with an asylum officer.

The study found that many families seeking asylum had been ordered removed in absentia after a missed court date due to reasons largely outside their control. This includes families that did not receive sufficient notice of their hearing from the Executive Office for Immigration Review (EOIR),[1] were provided incorrect government information on their hearing notices, had serious medical problems, experienced language barriers, or had severe trauma or disabilities.

What the data reveals is a flawed bureaucratic process for legitimate asylum seekers attempting to comply with the law as set out by statute. Rather than use punitive tactics, such as in absentia removals, we encourage you to make administrative changes that ensure fair hearings and basic due process rights. The Department of Justice, the Department of Homeland Security, and relevant immigration agencies have significant discretion to implement guidance and regulations that would address many of the causes of unintended in absentia removal orders to ensure fairness and due process for legitimate asylum seekers.

Given the serious concerns revealed by the FOIA data, in addition to the recent Supreme Court decision in Pereira v Sessions, we ask that you provide the following information:

• The most up to date data available on the number of asylum-seeking families ordered removed between January 2017 and June 2018, the number of these families ordered removed in absentia, and the percentage of families represented by counsel in each case. (See attachment for specific questions)
• What steps, if any, EOIR is taking to ensure asylum seekers get the information and resources they need to comply with the law?
• What steps, if any, EOIR is taking to address the issue of deficient notices raised in Pereira v. Sessions?

Thank you for your attention to this matter.

Sincerely,

cc: James McHenry, Director of the Executive Office of Immigration Review