For the past two years, researchers have been observing immigration court proceedings to better understand how the asylum process is evolving under the second Trump administration. A new report details their findings, based on more than 1,300 hours of courtroom observation across 107 courtrooms in 13 states and Puerto Rico.
Amelia Frank-Vitale, assistant professor of anthropology and international affairs at Princeton University and the report’s co-author, explains what her team found, why asylum law even matters, and how the system can be improved to ensure it is fair and transparent.
You and your team have spent hundreds of hours monitoring immigration court proceedings around the country and in Puerto Rico over the last two years. What did you learn?
Amelia Frank-Vitale: One of the things we've learned by being in court is just how much we don't know about what happens in immigration court. Unlike other court proceedings, the decisions are often rendered immediately orally, and there's no court reporter. Often the written record doesn't get made, and so there's so much, about how questions have been asked and who has said what in the courtroom to whom, that we really only know by being there.
These proceedings have changed under the Trump administration. What are some of the patterns you observed?
AFV: We've seen a lot of different ways that people are being rerouted or coerced into not having a final hearing on the merits of their claim. We're seeing procedural maneuvers being implemented to get rid of cases before they ever get to a hearing, so that a judge isn't actually hearing the specifics of a person's reasons for why they should not be deported.
One is the rise of “in-absentia” removal orders, people who are being ordered removed after they fail to appear for a hearing. In-absentia rates have historically been low, and they have skyrocketed in the last year and a half in the wake of courthouse arrests and people being scared to show up for their hearings.
Another one is this idea of pretermission. This is a new invention where, before a hearing actually happens, judges look at the paper filing and say this case is likely not to meet the legal threshold of the grounds for asylum. Another form of pretermission happens now because the U.S. has signed agreements with different countries with the idea that people should go there to seek asylum instead. These are countries from which people are also fleeing, often countries with dismal human rights abuses like Guatemala, Ecuador, Honduras, Uganda, and South Sudan.
So, cases are being pretermitted – they're being canceled before a hearing – and people are being sent to places they've never been to, sometimes where they don't speak the language, but most importantly, places where they don't have a real functioning justice system. Congress did make a provision that people's cases don't necessarily have to be heard in the U.S. if they could be heard in another safe third country, but this makes a mockery of that by assigning agreements with countries that, under no independent adjudication, could be considered safe or to have a functioning asylum system.
Why does it matter if the United States provides due process to asylum seekers?
AFV: This is still the country that a lot of people believe to be the place where they are going to find safety and possibility, and that is part of the strength and the beauty of the U.S. The laws that we have about asylum come out of a particular history. They come out of the recognition that we turned people away and sent them back to Hitler during the Holocaust and the Second World War. That is a shame that the U.S. carried with it, despite winning the war, despite all the sacrifice that U.S. servicepeople made to fight fascism in Europe.
The idea of asylum is that there are some people whose security, whose safety, whose needs for protection, supersede the otherwise restrictive nature of immigration laws, and that as a community of democratic nations, we recognize those rights. That is a foundational principle of how the community of democratic nations decides to work with one another, and we enshrined it into U.S. law in 1980. U.S. law says that people have a right to seek asylum in the U.S., and if they show up on U.S. soil, it does not matter how they got there – that we have a process for adjudicating them.
Immigration court proceedings are starting to take place in unmarked office buildings and out of public view. What are the implications of that?
AFV: There are reports in a couple different jurisdictions of people being sent to places that are not within the roster of immigration court, so a different floor in the federal building in New York City or an unmarked office building that you have to go through a fast-food restaurant to get into in Washington D.C. I think it's part of a general attempt to make things happen faster and with less review. It makes it easier to short-circuit the limited but important universe of due process rights that people have in immigration court if no one's there to watch, if no one can access the space to observe.
Although these hearings are traditionally held in a courtroom, they are not actually independent like criminal court, right?
AFV: Immigration proceedings are civil, and immigration judges are technically attorney employees of the Department of Justice. Their conditions of employment are more similar in many aspects to the rest of the civil service than to an independent judiciary, and we can see this as the Trump administration fired one out of every seven judges in its first year. Judges are employees who have to perform in a certain way for their boss, which is the DOJ. They then also have to make sure that their decisions hold up to review. At the appellate level, cases can eventually get appealed to the Circuit Court, and that is where the federal judiciary has some oversight.
But people in immigration court have no right to representation at government expense, and the rules of evidence are different. Judges don't have the power to hold parties in contempt, and in some ways, both the prosecutor and the judge have the same boss. They're both appointed by executive agencies because of the sort of structural choices that Congress made.
What can policymakers do to ensure that the asylum process is fair and transparent?
AFV: Congress decided to give the attorney general a lot of power over immigration court, and that's something that Congress could change. Taking immigration court out from under the DOJ, out from under the executive branch, is essential so that there is independence built into the court. There's precedent for other kinds of administrative law courts under the federal system that immigration court could be modeled after.
It also doesn't have to be a court. We already have a system through U.S. Citizenship and Immigration Services that is less adversarial, where people have their cases reviewed by a trained asylum officer. We could expand that process. There are many other countries that don't have an adversarial court process with a prosecutor present, but instead a review by specialists in the law. Something that allows for independent review, that is less politicized than the current system, would be a really important first step.
Headshot courtesy of Amelia Frank-Vitale. Background image by Shutterstock.
