Politics & Policy

Illegal-Alien No-Shows

Illegal immigrants released from ICE custody in McAllen, Texas. (John Moore/Getty Images)
By the time ICE files court cases, the unaccompanied minors have settled elsewhere.

The Department of Justice has begun ushering unaccompanied alien children to the front of the line for immigration court proceedings — but the children still fail to appear in court.

In one day at a Los Angeles immigration court last week, Judge Ashley Tabaddor heard the cases of nearly 40 illegal immigrant minors, but none of the children appeared in court, according to the Los Angeles Times. In each case, the illegal immigrant minor was thought to have settled elsewhere, and the judge reportedly decided not to deport the children in absentia. Instead, Tabaddor — who declined to speak with National Review Online, citing Justice Department policy — reportedly issued change-of-venue orders in each case.

As a response to the large number of change-of-venue orders, the Immigration and Customs Enforcement agency implemented a new process in June whereby officials wait to file cases on unaccompanied alien children and send all unaccompanied-juvenile case files to a central location, according to an ICE spokesperson.

Only after the Department of Health and Human Services notifies ICE that the unaccompanied juvenile has been placed with a sponsor, or 60 days elapse, will ICE attorneys file immigration-court proceedings for unaccompanied alien children, an ICE spokeswoman tells National Review Online. “We want these youths, these children, to have access to due process, but we’re also encountering issues where when we were filing the cases immediately, most of the children were being relocated or placed in locations outside of the jurisdiction where they were originally sheltered,” says Virginia Kice, a spokeswoman for ICE. “So it was resulting in a significant number of venue changes.”

ICE claims this process will free up the court docket by removing change-of-venue hearings, but the nearly 40 cases that required such changes heard by Tabaddor in one day last week came after the ICE policy was implemented in June. Kice says the new policy applies to all cases from May 1 going forward. But she says she expects that a significant number of the venue changes will continue to be necessary, as many of the cases have already begun or are pending.

Judge Tue Phan, a former immigration judge in San Francisco who retired in 2012 and is running for Congress as a Republican, says the venue changes allow the unaccompanied alien children the opportunity to avoid detection. “If you transfer a case to New York, and it’s China, people from China, then they disappear forever,” Phan says. “Then you will see a notice to appear, the children will not appear. There will be a motion to reopen [a] few years down the road.” Phan says the motion to reopen will be granted because the children will claim to lack control over their fate and seek to attach themselves to an “uncle,” who will often not be related by blood. This process contributes to the large immigration-court backlog, he says.

Phan says he is skeptical of how the government determines that the unaccompanied alien children are, in fact, “unaccompanied.” He notes that the government identifies unaccompanied alien children as unaccompanied at the time of entry, and he says he has questions about how the government determines the age of the minors. “I don’t envy my colleagues [in the courts] here in San Francisco,” he says. “I don’t know how they deal with the problem.”

The DOJ’s Executive Office for Immigration Review has made docket adjustments, reprioritized certain cases, and refocused EOIR’s immigration-court resources, according to a DOJ spokesperson. The spokesperson told NRO the realignment of the docket will mean each unaccompanied juvenile respondent will have a first master-calendar hearing — equivalent to an arraignment proceeding — within 21 days, and EOIR has deployed seven immigration judges to immigration court sites in Texas.

An ICE statement provided by Kice includes the following discussion related to this matter:

“What happens to children who arrived before the end of May and are now subject to EOIR’s 21-day expedited hearings — will their cases be delayed 60 days instead?

The new process applies to the cases of all unaccompanied minors encountered since May 1. The cases of juveniles who were encountered prior to that date were typically filed in the venue where they were initially sheltered. ICE is committed to ensuring these youths have access to due process and the agency is working closely with the courts to obtain changes of venue in instances where the youths have now been placed with sponsors in other jurisdictions.”

The statement goes on to explain that if an EOIR judge enters an in-absentia deportation order for an unaccompanied juvenile, “ICE will be guided by its enforcement priorities, including public safety and domestic security threats, in determining appropriate next steps.”

If ICE officials choose not to file immigration-court proceedings related to the unaccompanied alien children until the children settle with a sponsor away from the border, or 60 days pass, it appears unlikely that the federal government’s efforts will have much of a positive impact, especially given the pre-existing immigration court backlog.

— Ryan Lovelace is a William F. Buckley Fellow at the National Review Institute.

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