Biden’s Approach to Immigration Backlog Replicates Mistakes of Trump Administration

Putting families’ cases on an assembly line toward deportation does not address the immigrant backlog.

Biden's Approach to Immigration Backlog Replicates Mistakes of Trump Administration
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A protest against Arizona immigrant law SB 1070 in Minneapolis, Minn., on April 26, 2010. (Fibonacci Blue / Flickr)

Fleeing horrific domestic violence in Central America, Mrs. Garcia* and her three children traveled over 3,000 miles to the United States in early 2019. Whether they could stay depended on thousands of pages of evidence, intensive forensic evaluations, hours of traumatic testimony—and only four months to prepare. 

Four letters—FAMU—put Mrs. Garcia, her children, and thousands of other families on a fast track through the nation’s immigration courts under President Donald Trump. Now President Joe Biden is doing the same thing, triggering more strife than solutions for these bereft families.

On May 27, the Biden administration established its own fast track through the immigration courts in an effort to combat the growing backlog of cases. Biden’s “dedicated dockets” are strikingly similar to Trump’s Family Unit (“FAMU”) dockets. Both require that families’ cases reach a final decision—either deportation or protection in the United States—within an unreasonable period of time. 

Under Trump, cases had to be completed one year after proceedings began. Under Biden, it’s 300 days after the first hearing. In that short time, immigrant families are expected to find an attorney to represent them (or represent themselves), gather and submit hundreds of pages of evidence entirely in English, and prepare for hours of testimony. They must do all of this while processing the impacts of the trauma that many have suffered.

What’s worse: This chaos doesn’t actually address the root causes of the backlog. In fact, it only creates more problems for immigrant families fighting for their lives.

Families facing deportation will not have a fair chance in these dedicated dockets for two primary reasons:

  1. lack of appointed counsel in immigration court, and
  2. the effects of trauma often experienced by these individuals before they ever come into court.

First, noncitizens facing removal in the United States—regardless of age, background, disability, or any other factor—have no right to appointed counsel paid for by the government. There is no such thing as a “public defender” in immigration court. If  immigrants cannot afford an attorney, or cannot find a nonprofit or law school clinic to represent them, they must represent themselves against the Goliath of the federal government. 

Accelerated dockets worsen this problem. Nonprofits and law school clinics have limited resources and limited capacity. When families come with a fast-tracked case, it is less likely that their case will be accepted simply because the cases are too complex with too little time.

Without legal representation, immigrants will be less likely to know even how to apply for protections from removal and less likely to obtain the evidence needed to support their case. Regardless of whether they would win, the fundamental promise of America is that everyone has the chance to try.

Second, the impacts of trauma make it that much more likely that someone will not have the chance to fully present their case. My current and former clients like Mrs. Garcia* and her children have survived unimaginable violence: rape, torture, repeated beatings, constant death threats, stalking by gang members, and so much more. While my clients are incredibly resilient, the effects of trauma are still very real and present. As attorneys who represent asylum seekers, we have to take care to not retraumatize our clients while building their cases. Expecting asylum seekers to testify to the level of detail and specificity required under the law under these rushed conditions sets them up for failure.

Ultimately, and perhaps most fundamentally, putting families’ cases on an assembly line toward deportation does not address the backlog. These “dedicated dockets” direct scarce resources to a small fraction of cases rather than clearing the cases currently in the backlog that could be dismissed or closed.

Biden just needs to give immigration judges permission to manage their own dockets. If  he restores tools like administrative closure, judges can close and remove low-priority cases from the docket. By restoring the courts’ authority to manage their own caseload, the Biden administration can quickly remove cases from the backlog while still ensuring fairness for asylum-seeking families.

*Name changed for confidentiality.

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About

J. Nicole Alanko is an immigration attorney serving as an Immigrant Justice Corps Fellow at William & Mary Law School’s Immigration Clinic. Earlier this year, she published an article in the University of Pennsylvania’s Journal of Law and Social Change about how accelerated dockets violate families’ right to due process in immigration court.