In Immigration Courts, An Ongoing Fight Over Due Process

By Tracy Thompson

Lawyers for immigrants in federal custody are engaged in a legal version of trench warfare with President Trump’s Department of Justice over a key and previously routine element of due process in immigration court: bond hearings.

This month, the 11th U.S. Circuit Court of Appeals in Atlanta joined the fray by ruling that noncitizens living in this country cannot be detained indefinitely by Immigration and Customs Enforcement (ICE). The case involves two south Florida residents detained by ICE after routine traffic stops.

The 2-1 opinion cited the plain reading of federal statutes and 30 years of legal precedent to hold that the government cannot categorically deny bond to immigrants with no criminal record who are detained by ICE, as has been happening under the Trump administration. The question hinges on whether immigrants already living here should be considered “applicants for admission” the same as those stopped at the border, who can in some cases be detained indefinitely.

That was the result of a change last year, when the Department of Homeland Security expanded the meaning of “applicants for admission” who could be held “for the duration of their removal proceedings,” as the law says. Under the government’s new definition, all immigrants, no matter when or where found, can be detained for as long as it takes to get an asylum hearing.

Most of those asylum claims “usually didn’t stand a chance,” says Eszter Bardi Johnston, a Georgia immigration lawyer and chair of the Georgia-Alabama chapter of the American Immigration Lawyers Association. But a chronic shortage of immigration judges to decide cases means the years-long deportation process let bonded immigrants live legally and work in this country indefinitely.

Senior Circuit Judge Stanley Marcus, a President Clinton appointee, wrote the 11th Circuit opinion joined by Judge Robin Rosenbaum, a President Obama appointee. The dissent came from Trump-appointed Judge Barbara Lagoa.

The Atlanta-based court ruling is like those from the 2nd and 6th Circuits, while the 5th and 8th Circuits upheld the new government interpretation, and the 7th Circuit split. The issue seems headed for the U.S. Supreme Court.

The new no-bond policy had created an influx of detainees into ICE detention facilities in Georgia, especially the Stewart County Detention Facility in Lumpkin. Their lawyers began filing hundreds of habeas petitions challenging ICE’s refusal to hold bond hearings. Those petitions wound up with U.S. District Judge Clay Land in Columbus, who described the avalanche as an “administrative judicial emergency” that threatened to disrupt the orderly workings of Middle District courts.

The redefinition of an “applicant for admission” is just one aspect of the Trump administration’s continuing drive to ramp up deportation numbers. It also vastly expanded the number of agents and began rounding up suspected immigrants via street encounters, traffic stops, and workplace raids, even in courthouses.

While cases poured into immigration court dockets, fewer experienced judges were on hand to handle them. The Trump administration fired more than 100 experienced immigration judges beginning last year and has been hiring replacements with less experience—many with backgrounds in prosecution or immigration enforcement. For a while, Johnston, the Atlanta-based immigration lawyer, said, postings on USA Jobs described the open positions as “deportation judges,” an apparent sign of pre-judging and an anti-immigrant bias.

Johnston said that most of her clients are not criminals but economic migrants or people fleeing crime or drug gangs in their native countries. “I have nothing but respect for the family values they have, the work ethic they have…I can’t tell you how many employers I speak with who say, ‘This is my hardest worker. . . I can’t run my landscaping business if I don’t have a work force.’’’ The U.S. Supreme Court ruled last year that agents may consider ethnicity when deciding whom to stop and question about immigration status. In Georgia, Johnston said, this means that anybody who looks Hispanic is vulnerable. Plus, many noncitizens drive with no driver’s license because state law requires immigrants to have a federally issued work permit to apply for one.

If they get arrested, Johnston said, “suddenly ICE slaps a hold on them, and if they plead guilty to their no-license case, they get sent straight to ICE. If the immigrant’s family posts bail on the traffic offense, ICE can still arrest and detain them on immigration charges. So, immigrant families live in fear of going grocery-shopping and picking their kids up from school, Johnston said.

Charles Kuck, another Atlanta-based immigration lawyer and former President of the American Immigration Lawyers Association, said that immigration lawyers responded to blanket bond denials by asking U.S. District Judge Lamb to order Middle District immigration judges to follow the law. “The mere act of filing the motion-to-enforce has made the immigration judges start granting bond again,” Kuck said. “We called their bluff.”

But judges are setting bonds considerably higher than they used to, he said. Before Trump took office, immigration bonds rarely exceeded $1,500, Kuck said. “We saw one [recently] for $90,000, and there are a lot for anywhere between $5,000 and $15,000.”

“For clients, it often boils down to a choice between investing in legal defense in front of a court that has made it much harder to get relief, or holding on to that money to get yourself set up in your home country,” Johnston said. “It’s a tough decision.”

Tracy Thompson is a former journalist with the Atlanta Journal Constitution and the Washington Post. She currently lives in the Washington D.C. area.