Biden's Plan To Speed Up Asylum Cases Fairly Hasn't Worked Out, Study Says

The Biden administration’s plan to speed up the resolution of asylum cases has caused serious due process problems, according to a new UCLA report.

The administration’s year-old ”Dedicated Docket” plan was designed to decide cases more quickly without compromising fairness. Among other things, the government said families would be referred to pro bono legal services “for possible representation.”

But according to the report by the UCLA School of Law, due process remains a problem: 70% of those on the L.A. expedited docket lacked legal representation, researchers found; 99% of the cases on the L.A. expedited docket completed as of Feb. 1 resulted in deportation orders, 72% of these issued in absentia; and 48% of those in-absentia deportation orders were issued to children, the majority of them young kids 6 and under.

The report noted, in contrast, that only 33% of those on the L.A. immigration court’s non-expedited docket lacked legal counsel.

The Biden administration’s dedicated docket plan “tried to distinguish itself from prior so-called rocket dockets from the Obama and Trump administration,” said Talia Inlender, deputy director of the Center for Immigration Law and Policy at the UCLA School of Law. Deportation was a primary goal under the Trump administration’s plan.

“But in practice, what we're seeing with the results of our report is that it is functioning essentially in the same way,” she said. “It's on track to result in the same low levels of legal representation and in a similar if not greater proportion of removal orders for families.”

Similar Problems Across The Country

Similar due process issues have been reported nationwide. In January, Syracuse University’s Transactional Records Access Clearinghouse reported that just under 5% of asylum seekers who were ordered deported on the dedicated docket had legal representation.

The L.A. dedicated docket is made up of asylum seeker families who entered the U.S. at the southern border on or after May 28 of last year, according to the UCLA report, and included some 2,410 families as of Feb. 1, 2022. Most families on this docket in L.A. are from Guatemala, El Salvador, Nicaragua, Honduras, and Colombia, the report said. Nearly half of those on the docket are children.

Poor communication between immigration officials and asylum seekers also continues to be a problem, Inlender said. The report cites as an example a 42-year-old father named William, who was given a notice to appear by immigration officials the first time he checked in with them.

Mistaking this notice for another order to check in, he and his 6-year-old son reported to U.S. Immigration and Customs Enforcement at the L.A. Federal Building on the stated date, not realizing they were supposed to report to the courtroom in the same building. According to the report, officials directed him to wait in the lobby, which he and his son did for seven hours — until someone came to tell them they had missed their court hearing upstairs, and had been ordered deported in absentia.

'Leading To...A Dead End'

Inlender said the Biden administration has families on the docket under surveillance, including with ankle monitors, so the problem is not people skipping out on hearings, but rather a lack of support and representation.

“If what they really want is a fair and efficient docket, they need to be ensuring that everyone has access to quality legal representation,” Inlender said. “People need representation if they're going to proceed in court and without it, they really can't get a fair hearing.”

The Executive Office of Immigration Review, which administers the immigration courts, told LAist that it could not comment on the report. It provided a link to a Nov. 2021 memo from EOIR Director David Neal that encouraged immigration judges and court staff to “accommodate and facilitate pro bono representation as much as practicable.”

The EOIR memo doesn’t provide a road map for acquiring pro-bono help, but Judge Mimi Tsankov, president of the National Association of Immigration Judges, said she welcomes it because it signals to judges that it’s okay to take a step back and grant immigrants more time to get legal help.

“Our system, given the complexity of the immigration system, really needs to give respondents time to get representation,” said Tsankov, who is also a practicing judge in New York.

Inlender said while some people have been referred to pro-bono counsel, there simply aren’t enough pro-bono providers to accommodate them — and that the federal government should invest in funding for more of these services.

“If the legal service providers who are being referred to don't have capacity or additional funding to take on cases,” she said, “then what that ends up being leading to is a dead end.”