By Sarah Bronstein
On September 10, 2014 Chief Immigration Judge Brian M. O’Leary issued a memorandum to all Immigration Judges entitled “Docketing Practices Relating to Unaccompanied Children’s Cases in Light of the New Priorities” (hereafter EOIR Docketing Memo). This memorandum was issued in response to concerns raised by CLINIC and other agencies working on unaccompanied children’s issues at a meeting with the Executive Office for Immigration Review (EOIR) on August 18, 2014.
Since July of this year, EOIR has implemented expedited docketing procedures in response to the increased numbers of unaccompanied children apprehended along the southern border. Immigration courts have been instructed to schedule unaccompanied children’s cases for a first master calendar hearing within 21 days of the filing of the Notice to Appear with the immigration court. As these “rocket dockets” were rolled out across the country, advocates became increasingly concerned about due process protections, the large numbers of children appearing unrepresented, and the granting of very short continuances to find counsel and prepare the cases. Advocates raised a number of concerns about the rocket dockets at the August 18th meeting, but the EOIR Docketing Memo focused on three issues: continuances to find counsel; continuances for other reasons as the case proceeds; and appearances by custodians.
Continuances to Find Counsel
The Notice to Appear is the charging document in immigration court. Removal proceedings begin when the Notice to Appear is filed by Immigration and Customs Enforcement (ICE) with the immigration court. The scheduling of the first master calendar hearing within 21 days of the filing of the Notice to Appear makes finding counsel prior to the first hearing very challenging. As a result, many children are appearing at their first master calendar hearing without representation. In the EOIR Docketing Memo, O’Leary clarifies that the expedited scheduling of unaccompanied children’s cases does not prevent the Immigration Judge from exercising his or her discretion to grant a continuance to find counsel. He also states that the length and number of continuances granted to obtain counsel will vary case by case and will depend on factors including the availability of local counsel, both private and pro bono.
Continuances for Other Reasons
Unaccompanied children’s cases are very complicated and time consuming to prepare. Many children seek Special Immigrant Juvenile Status (SIJS) – an immigration benefit available to children who have been abused, abandoned or neglected. Applying for SIJS requires obtaining a court order making certain findings from a state juvenile court. The application for SIJS, the I-360, must then be filed with and adjudicated by U.S. Citizenship and Immigration Services (USCIS). The length of time these cases take to prepare varies, but it is generally at least a several-month-long process before the Immigration Judge even has jurisdiction to act on an SIJS case.
Advocates informed EOIR at the August meeting that there were reports from around the country of instances where Immigration Judges were giving very brief, two-to three-week continuances in cases where SIJS was identified as the form of relief being sought. In response to those concerns, Chief Judge O’Leary states in the EOIR Docketing Memo that in spite of the expedited scheduling of unaccompanied children’s cases, Immigration Judges continue to have discretion to reset the case for good cause. Chief Judge O’Leary specifically gives the example of a child seeking SIJS and indicates that the length of time needed to proceed in state court varies depending on the jurisdiction. He states that several months may be necessary to complete the state court portion of the case in many jurisdictions. He also asserts that appropriate time needs to be given to USCIS to adjudicate the I-360. In light of this, he stresses that several continuances or administrative closure – the mechanism for placing a case on hold while an event outside of the control of the Immigration Court is occurring – may be needed.
Appearances by Custodians
Unaccompanied children in the custody of the Office of Refugee Resettlement are often released to family members or family friends. These individuals, including parents, are called “sponsors” or “custodians.” Advocates reported to EOIR that Immigration Judges were asking children appearing in court without an adult why a parent or other custodian was not present. In response to the children stating that the custodian was fearful to come to court because of their immigration status, some Immigration Judges were ordering the custodian to appear in court at the next hearing and giving assurances to the child that the custodian did not need to fear being taken into custody or placed in removal proceedings if he or she appeared in court. O’Leary stresses that it is not appropriate for Immigration Judges to order the custodian to appear in court and to make assurances that the custodian will not be taken into custody if he or she does so. O’Leary clarifies that such decisions are in the sole purview of ICE and are outside of the Immigration Judge’s control.
CLINIC continues to monitor and engage in advocacy on the implementation of the rocket dockets across the country. If you have concerns about how the rocket dockets are proceeding in your immigration court, please send us an email detailing the issues you are seeing at firstname.lastname@example.org.