By Felipe De La Hoz
March 20, 2019
New York Immigration attorneys are scrambling to adequately represent their detained clients after hearings were abruptly rescheduled or advanced by a factor of weeks without consultation, agreement or timely notice.
Attorneys in both city’s public defender services and the private bar described realizing that individual hearings had been rescheduled and in some cases assigned to an entirely different judge only after checking an online portal known as I3, which has case information. During individual hearings, a respondent and their attorney present evidence to an immigration judge, arguing for relief from deportation, such as granting asylum or cancellation of removal. These hearings typically require intensive preparation.
“There have been at least two dozen clients who, only through checking the portal have we learned that their individual hearings, scheduled mostly for June, have just been unilaterally rescheduled for dates as early as next week, and there has been no notice, no phone call,” said Sarah Deri Oshiro, the managing director of immigration practice at The Bronx Defenders. The Bronx group is one of three public defender organizations that make up the city-financed New York Immigrant Family Unity Project (NYIFUP).
Unlike master calendar hearings, in which an immigrant offers an initial response to the governments’ charges and indicates their preference for relief, individual hearings are complex, multi-hour affairs that involve hundreds of pages of evidence, witness testimony, and examination and cross-examination of the respondent by both their own attorney and the federal government’s Immigration and Customs Enforcement attorney. Given the extent of the preparation required, hearings are usually set weeks or months in advance, with a ‘call-up date’ for evidence to be submitted around fifteen days before the hearing. That’s to ensure all parties have time enough to review.
It takes time to gather evidence
Cases being moved around the calendar by the Executive Office for Immigration Review (EOIR) without warning throws a wrench into the process. Among the evidence that attorneys often present on behalf of their clients are signed letters of support from community members, documentation from past arrests and criminal convictions (which may need to be retrieved individually from courts), and financial and medical documents that attorneys must obtain directly from providers.
Collecting and review that evidence may be impossible if a hearing set for June is suddenly rescheduled to the end of March. Witnesses and the attorneys may also have conflicting commitments that could prevent them from attending the hearings.
“I have [attorneys] with trials advanced that are literally out of the country, people with preexisting conflicts, people on pre-approved leave, and [EOIR] didn’t even bother to tell us,” said Andrea Sáenz, the attorney-in-charge of Brooklyn Defender Services’ NYIFUP practice. “Someone, somewhere, thought ‘we can hear the case anytime, anywhere, it doesn’t matter if you have an attorney or the evidence.’ ”
A private attorney who preferred not to be identified said that he had found cases rescheduled to dates so imminent that their evidence call-up dates had already passed, and it wasn’t clear whether judges would accept it, or have to reschedule the case yet again. “I can’t turn it around that quick. I have 700 active immigration cases, I can’t do it like that,” the attorney said. Other attorneys with lighter immigration caseloads might not bother to check the I3 portal and miss their cases altogether, which could result in clients being ordered deported, this attorney said. Rescheduling had also resulted in multiple hearings occurring at different courts around the state on the same day, the attorney said. “Physically, I can’t do it,” the attorney said.
The date reshuffling may be the result of EOIR’s effort to clear the court backlog, which threatens to break one million cases soon. New courtrooms have opened on the renovated fifth floor of New York’s Varick Street facility, which heard their first detained individual hearings Monday afternoon, overseen by immigration judges Mimi Tsankov and Margaret Kolbe. Both judges were relocated from the federal facility at 26 Federal Plaza. An additional five non-detained courtrooms are slated to open soon. Some attorneys complained that cases not only had been rescheduled, but the presiding judges switched, which they viewed as violation of due process.
EOIR wants cases completed quickly
As attorneys protested to court clerks and the court administrator, some rescheduled cases were scheduled back to their original dates or taken off the calendar entirely, adding to the confusion. Other cases were apparently still being advanced this week, or taken off the calendar from dates in June.
In an email responding to questions about the case rescheduling, EOIR spokesman John Martin wrote, “EOIR prioritizes all detained cases. Please see the January 2018 priorities memo for more information.” The memo written by EOIR Director James McHenry laid out benchmarks for case proceedings, stating that 85 percent of detained cases should be completed within 60 days of the case being started, reopened, remanded from a higher court, or the notification of detention.
Martin declined to comment on the court processing standards referenced in the EOIR memo which state that the “[c]ommencement of trials on the original date scheduled with adequate advance notice,” as “now being implemented by EOIR.” Nor did he comment on the issue raised by attorneys that, if they are forced to show up in court without evidence and witnesses, judges will likely have to issue a continuance for the case, leading to further delays. A clerk at the Varick Street court referred questions to Acting Court Administrator Rachel Newsome, who did not respond to a request for comment.
Federal regulations require that all parties must be informed of the date and time of a hearing in immigration court in advance, but there don’t appear to be clear policies or case law about when such notification must occur. In some cases, attorneys have complained of mailed notices arriving after the scheduled dates of hearings.
“It’s very clear talking with the clerks and the administrative staff that this comes from above somehow,” said Sáenz of Brooklyn Defender Services. Jen Williams, the deputy attorney-in-charge of the Legal Aid Society’s Immigration Law Unit, said that clerks they’d been able to get in touch with had been evasive and insisted that attorneys had to take up the matter of date changes directly with the immigration judges.
In theory, the attorneys are not opposed to speeding up their clients’ cases. The Bronx Defenders joined other groups in suing the federal government over how long clients were held in detention without a first hearing.
However, the risk that hearings can be summarily rescheduled without communication or consultation, makes it impossible to prepare for what can be life-and-death cases. “These are complex cases. These things take time. It’s going to be an easy narrative for the government to say ‘what’s the problem, these people are going to see judges sooner, they’re not languishing in detention.’ It’s such a calculated assault on due process,” said Williams.
On Tuesday, one of Legal Aid’s clients had a hearing that was advanced from June 26. Williams said the attorney was forced to show up without any of the evidence for the case. According to her, Immigration Judge Charles Conroy asked if the parties could move forward with testimony anyway, to which the attorney objected.
When the attorney asked the judge for an explanation of why the case had been moved up, “he got annoyed with us and said, ‘counselor, you know that cases are being advanced to move detained cases along,’ ” and referenced the prioritization issue, said Williams. Conroy then agreed to a 60-day adjournment, rescheduling the case for May 17, over a month prior to the original date.