On due process and immigration policy

Two recent news stories have described how judges are pushing back against the Trump Administration’s immigration policies on the grounds that they violate due process.

The Wall Street Journal reports that immigration judges in San Diego are dismissing Migrant Protection Protocols (a/k/a Remain in Mexico) cases at a 33% rate, much higher than any other locality. The San Diego judges have repeatedly ruled that asylum seekers waiting in Mexico were not properly informed of their court dated or other due process rights. Among other examples, a San Diego immigration judge terminated the cases against a family from Honduras after concluding that the U.S. government did not properly fill out their notice to appear, leaving the migrants uninformed about the grounds upon which they could fight their case. While the immigration judges’ decisions do not necessarily improve migrants’ chances at asylum, they do assure that the affected migrants cannot be banned from coming the country for ten years, as is required under current protocol for those who generally fail to show up for hearings.

Meanwhile, in Boston, U.S. District Judge Patti Saris likewise ruled that the government had violated due process in its immigration court hearings, by requiring a detainee at a  bond hearing to show that he or she was not a flight risk. Judge Saris concluded that the  government properly bears the burden of showing, by clear and convincing evidence, that the detainee was dangerous or a flight risk. The ruling was part of a putative class action lawsuit filed by the ACLU and others on behalf of immigration detainees in New England.

I am no expert in immigration law or policy, and I want to take care to distinguish between immigration judges, who are technically employees of the Department of Justice, and life-tenured Third Branch officials like Judge Saris. But it is heartening, at least to me, to see judges at both levels insisting on basic due process for all those haled into the justice system.

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