The Biden administration announced Friday it would seek to fast-track the asylum cases of the few families allowed to remain in the U.S. after crossing the border.
It’s a move advocates fear will speed deportation while limiting due process for the minority not booted under a Trump-era policy allowing for swift expulsion due to covid.
The plan from the Department of Homeland Security and the Department of Justice creates a so-called dedicated docket, urging judges in the nation’s backlogged immigration court system to decide their cases in 300 days, rather than the years typically faced by those with cases already in the system.
The order will apply to anyone who crosses the border outside of a point of entry starting Friday.
“Families arriving at the border who are placed in immigration proceedings should have their cases decided in an orderly, efficient, and fair manner,” Secretary of Homeland Security Alejandro MayorkasAlejandro MayorkasJohns Hopkins to launch degree program in cybersecurity and policy The Hill's Morning Report - Presented by Altria - New front in mandate wars; debt bill heads to Biden DHS to end workplace raids, shift focus to employers over undocumented workers MORE said in a release.
“Families who have recently arrived should not languish in a multi-year backlog.”
But César Cuauhtémoc García Hernández, a law professor at Ohio State University, sees the potential for numerous unintended consequences.
“Legal processing doesn’t happen in a vacuum so I have two concerns. One, are you going to be shortcutting anywhere that is going to have detrimental impact on the claims that people who are on this special docket receive? Because they’re not going to have enough time to find lawyers, to build up their legal cases. It just takes time to do that, and then you’re short changing the quality of justice meted out,” he said.
“And the second part is about the people whose cases get displaced because court resources are being redistributed….Are those people just being pushed to the back of the line and having to wait interminable amounts of time before they find out what their future looks like?”
The policy comes as the Biden administration is grappling with how to handle an immigration court backlog that ballooned under the Trump administration to more than 1.3 million cases.
The “rocket docket” concept has been used by the last two administrations, with varied success.
“Successive admins have attempted to use rocket dockets as a way to deter asylum seekers from coming under the idea that if they can deport people more quickly, people will not be as eager to come to the U.S. But you can't deter people from coming to the U.S. if they’re coming for survival. Expedited hearings are not going to deter those individuals from coming,” said Ashley Huebner, associate director of legal services for the National Immigrant Justice Center.
Under the plan, cases would be heard in 10 cities “with established communities of legal services providers and available judges to handle the cases.”
People in immigration court have no guaranteed right to counsel, however, and advocates also doubt asylum seekers will be able to secure representation quickly enough under the 300 days outlined.
“Legal services providers are stretched beyond capacity and when asylum seekers are restricted in the amount of time to find an attorney that most likely means they're going to proceed without an attorney,” Huebner said.
The lack of counsel can have major impacts on a case. An analysis from the Migration Policy Institute found 81 percent of those entered into a dedicated docket program under the Obama administration failed to appear for their hearing, versus just 8 percent of those who were represented by a lawyer.