NOI 16: Why Are There Tent Immigration Courts?

Today in Nation of Immigrants we discuss why the Trump Administration has set up tent immigration courts at the U.S.-Mexico border, and what that means for asylum seekers and their lawyers.

Jacob Tingen: Exciting always to be talking to you. Today, we’re going to talk about tent immigration courts that have been going up at the US-Mexico border. We’re going to talk about why they’re going up, what’s going on, and just raise some concerns. So thank you for listening. And again, welcome to Nation of Immigrants.

Announcer: You’re listening to Nation of Immigrants.

President Obama: America is a nation of immigrants.

Announcer: A podcast about US immigration law with your host, Jacob Tingen.

Jacob Tingen: All right, well, thank you once again for tuning in. Like I said, this is a Nation of Immigrants. And we have actually a growing subscriber list on YouTube and more and more people are listening on iTunes. So I just want to say thank you for listening. For those who are so inclined, please support the podcast. What we’re doing is we’re collecting donations at jacobtingen.com. You can visit my podcast page there and then there’s a link to donate. We are setting up a 501(c)(3) and donations to support the podcast. We plan to gear towards immigrants legal bills. So that’s an option for you. If you hear something about some of these issues and you say, “Hey, I want to support, I want to do something,” there is an option for you.

Jacob Tingen: Okay, so tent immigration courts, what’s actually happening? What’s going on? Why does this matter? Is it a good thing? Is it a bad thing? Here’s the rundown. So the Trump administration knows that there’s a massive court backlog. And it’s fine that we want to do things to work through that backlog as quickly and as efficiently as possible. However, it’s also important to protect everyone’s right to due process in a court of law. That’s just the standard for court procedures in a nation like ours, where we believe that things should be fair. And so when people approach our borders and say, “Hey, I’m afraid to return to my home country,” we already have a process. And we’ve talked about this a bit in the past, where they get a credible fear interview. If they pass, they’re then admitted to the country and they get the opportunity to present a full asylum case in a court of law.

Jacob Tingen: Well, with the advent of some of these policies that came out over the summer, the whole Remain in Mexico policy. There’s a body of several tens of thousands of immigrants waiting in Mexico for immigration court hearings that are happening in the US. And so what the Trump administration has done they’ve been getting some of these immigrants and arranging their court dates and the immigrants have to then come up to the US border, and they’ve been going, I believe either to the San Diego Immigration Court or the El Paso, Texas Immigration Court. And they’ve literally been picking up these immigrants at the border in official government vehicles, taking them over to the court hearing and then returning them back to Mexico because that is very efficient. Obviously, that’s why we’re doing this.

Jacob Tingen: So anyway, that’s what’s been happening. And there’s a recognition here that there’s a lot more that needs to be done if we’re going to go through these cases quickly and efficiently. So they’ve set up tent courts somewhere on the Texas border. And the idea is that immigrants will come to the border, be carted across, taken to their hearing, and then returned back to Mexico. Again, because presumably this is the most efficient way to do this instead of, of course, honoring our international agreements and our notions of due process and fairness, allowing people to have a credible fear interview and be admitted to the US and do it that way. But this is what we’re doing.

Jacob Tingen: So tent immigration courts, some of the issues, of course, are going to be just fairness of the proceedings. So if I’m a Remain in Mexico immigrant and I am afraid of returning to my home country in Central America and I have to wait in Mexico during my hearing, I have a right to an attorney that I pay for by myself. But it’s going to be awfully hard for me to find a US immigration attorney while I Remain in Mexico. So that’s probably one of the biggest concerns that I think should be brought up when we talk about tent immigration courts. But then the second issue you have is that a lot of these immigrants, of course, can’t find an attorney. But then if they go to this tent immigration court… and what’s interesting is that there hasn’t been a lot of information released about what’s going on in this. And we’ll touch on that in a bit. But if the government attorney is present in the tent with you and you’re an immigrant and you don’t have your attorney present with you, you’re at a disadvantage in these court proceedings.

Jacob Tingen: Now, I’m under the impression that you’re pretty much in the tent alone, that you’re appearing by video teleconference. That’s my understanding is that people are brought into these tents and then they teleconference to an immigration court somewhere else and talk to a judge through a TV. And my assumption is that a government attorney is in the courtroom with the judge. And my assumption is also that if you have an attorney, they’re probably in that teleconference courtroom with the judge as well. But I’m not sure. And one of the reasons that I’m not sure is, one, I don’t practice at the border. I’m in Virginia. But two, there are no observers allowed in the tent courts. So that’s something that to me is alarming. Anytime the government doesn’t want to let people in or doesn’t want to let people see things and not even allow any kind of observation to occur, it raises this idea, well, is there something to hide? Is there a reason that we don’t want observers there? Is it perhaps because it would be evident that we’re not protecting procedural fairness and due process for immigrants?

Jacob Tingen: And so that’s the conclusion that I have to draw as an attorney and an advocate for immigrants. That’s the conclusion I have to draw because otherwise there’s no reason… if there’s nothing to hide, why not let people in. I understand that there are logistical concerns. You’ve got to bring immigrants, the Remain in Mexico immigrants across the border and into the court in an orderly fashion and have them exit. But to not allow maybe US present family members to be part of the proceedings, to not allow attorneys, or other kinds of reporters, or other observers into the tent courts seems to me like a failure of our standard here in the US of what you would expect of a court process. So that is perhaps one of the biggest reasons that I take issue with it.

Jacob Tingen: The other thing is that it is my sense that a judge is going to give a fair shake, and this is just anecdotal. I’ve no evidence to back this up, but I think it makes sense that you’re going to get a fair shake when the judge is present in the courtroom with you. I think it is actually documented that people who are detained have lower approval rates than people who are not detained. People who are detained generally, which means they’re detained means they’re in jail. So people in removal proceedings who are in jail for whatever reason typically have lower approval rates. And part of that is probably due to the fact that they appear by TV, they can’t be in the courtroom, the judge isn’t able to observe and analyze the behavior of that person during testimony or other issues that come up in a court proceeding as well as they might have somebody there live.

Jacob Tingen: And so I just feel that any tent court process where I’m transported across the border and then beamed across the country through a TV probably doesn’t quite pass what I would call fairness in these proceedings, especially for these people who aren’t detained or aren’t in jail for any reason. And they have a right to a fair hearing, they have a right to an attorney that they pay for by themselves. Well, so I am a little sympathetic because it is an effort to get rid of the immigration court backlog. We do need more courts. I just imagine that they shouldn’t be tent courts, they should be buildings staffed with judges and government attorneys and staff. And that immigrants should be allowed to go to them with their attorney. I just think that there should be more immigration courts, there should be more immigration judges. I’m totally fine with that. But there should also be protections on procedural fairness and due process.

Jacob Tingen: So let me just share with you some of the things that I’ve been reading about that strike me as inappropriate in all of this process. Now, remember, most of the purpose behind these tent courts is because we’ve got these Remain in Mexico immigrants, which I’ve read some estimates it’s about 40,000 people that are currently waiting in Mexico for a US immigration hearing. They are claiming asylum in the US. Now, when I have an immigrant client, I absolutely encourage them to attend every single hearing. Now, one of the reasons that that’s important is if you don’t show up to your hearing, then the judge automatically enters what’s known as an in absentia order of removal. In absentia, meaning in your absence, since you didn’t show up, you didn’t come to defend yourself. I’m just going to go ahead and enter this order of removal.

Jacob Tingen: Now, there are reasons that immigrants maybe don’t show up to their removal proceedings ranging from, well, I just didn’t go to, ah, frankly, I didn’t hear about it or wasn’t aware that it was happening to what I’m about to tell you about. So one of the news articles that I read indicated that this woman had her scheduled hearing in the San Diego Immigration Court. Approaches the US border, where she’s told she needs to wait at 7:30 AM, is asked to wait for an hour by border officials. She’s there with a group of other immigrants. She keeps expecting to be transported up to the court so that she can talk to the judge. She has US-based family who have paid for an attorney and hired an attorney. So she’s in a pretty decent spot. Unfortunately, the entire morning passes and she is never permitted to go across and into the immigration court. At one point, the border officials say, “Okay, well that’s it for the day,” and turns them around.

Jacob Tingen: Now, upon arriving back at her home, she gets furious and frantic phone calls from family members saying, “Where were you?” The judge entered an in absentia order of removal because you failed to appear for removal proceedings. Okay, so do you see the problem? It’s, of course permitted to enter an in absentia order of removal if somebody doesn’t show up for an immigration proceeding. However, if they’re not even allowed to go at all, that exceedingly improper and incorrect and does not stand up to our notions of procedural fairness and due process. Now, this particular immigrant, she had an attorney in the US who was able to reverse that decision. But I imagine that others in her group maybe we’re not as benefited from council as they needed to be to protect their interests. Now, what’s interesting is in absentia order of removal, we talked about this with my partners and some of them laughed and said, “Well, great. Now, we’re entering orders of removal from a country they’ve never entered.” And so that’s the sad state of affairs that we’re in.

Jacob Tingen: Does this happen with every case? Probably not. Does it happen more than it needs to? It happened this time, so the chances that it’s not happening other times in my view is relatively low. So this is obviously cause for concern. How are we treating immigrants? Are we giving them due process that is due. And I would posit that with these tent immigration courts, it’s just another opportunity for the Trump administration to say, “Hey, we’re trying to eliminate the court backlog,” or “Hey, we like legal immigration,” and say, “Look at all these things we’re doing to support legal immigration.” But in the end, it’s not really supporting anything. As we’ve seen Trump administration officials and the John Oliver sketch we talked about in the last time, have said, “Yeah, we support legal immigration,” but then they turn around and enact policies like the public charge policy that actually limits legal immigration.

Jacob Tingen: And so we see that here, “Oh, well, legitimate asylum seekers, sure they should come on in.” But we’re not even giving people the chance to adequately make an asylum claim at all. And that’s troubling. So that’s what we’re talking about today in Nation of Immigrants. I hope that you understand a little bit better about what’s happening with the tent courts, why it’s happening, and then some of the problems that may come as a result. We have an existing asylum process where again we used to give credible fear interviews and then admit people into the country while they waited on their hearing to occur. And now, given the US Supreme Court decision from last week, Mexico is considered a safe third country for US immigration policies currently. And like I said, there is a court case winding its way through that may change that decision.

Jacob Tingen: But that’s kind of where we’re at. Thank you again for listening. You can always donate and support immigrants by donating to support the podcast at jacobtingen.com. Don’t forget to subscribe here on YouTube, follow us on Facebook and Twitter. And thank you for listening and for learning more about what immigrants in our nation are going through. I think if you know an immigrant, or you have an immigrant friend, or you know maybe a family member, or a friend who’s getting married to an immigrant and he’s going through this process, need to understand it’s a stressful time for them. Do what you can to support them. Thank you again for listening and have a good day.

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President Obama: America is a nation of immigrants.

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