It was unlike any courtroom I had seen before. The Immigration Judge appeared on a video screen a little blurry but larger than life. My client, an eight-year-old girl, sat next to me at a long table. This proceeding in Dilley, Texas was not open to the public but was held behind two locked doors in a trailer secured within a sprawling “family residential center” that despite its friendly name, had all the indicia of a jail.
This was an expedited removal proceeding, and I was appealing an asylum officer’s negative credible fear determination for my young client. Her mother’s appeal already had been denied so this was our last chance to prevent the two from being deported. Especially considering my client’s age, I wanted to marshal the evidence and explain why the legal standard had been met in this case. “May I be heard Your Honor?” I asked. “No, you may not,” he responded. The Judge asked my client a few questions with little follow-up and denied the appeal, wishing my client, “good luck in your home country.”
During a review of a credible fear determination, there is no right to counsel, regardless of the applicant’s age, and no opportunity for counsel who appears, as I did, to play any role in the proceeding. The controlling regulation simply states that “[t]he alien may consult with a person or persons of the alien’s choosing prior to the review.” No further appeal was available at the end of that court appearance, just a motion for reconsideration that even if filed, would not stay deportation.
There has always been a lack of meaningful due process in expedited removal proceedings. This problem has been greatly compounded by recent events. The Attorney General is now taking steps to make it even more difficult for detainees to pass their credible fear interviews by purporting to limit asylum claims as they relate to gang violence and domestic abuse. As I saw for myself, those are the main asylum claims made by people fleeing Central America.
The Attorney General’s change in asylum policy, if implemented in expedited removal proceedings, would be devastating. Before I travelled to Dilley, I expected to see a range of cases. Many people would have a legitimate fear of persecution while others, I thought, probably crossed the border simply for a better life. What I found, however, reshaped my view of immigration on our southern border. Just like people fleeing for their lives from Syria, Afghanistan or South Sudan, I observed a flood of people who had escaped Honduras, El Salvador and Guatemala out of complete desperation and fear. Those three Central American countries are among the most dangerous places in the world.
This humanitarian crisis will not go away — regardless of how tough border regulation becomes — unless conditions in those three Central American countries improve. But the deeper lesson in all of this is how American immigration policy is posing a threat to all of us. As Robert F. Kennedy once wrote, “[o]ur attitude towards immigration reflects our faith in the American ideal.” Through family separation and detention as well as expedited removal without due process, we are putting at risk the very ideals that define us as a nation.