In response to the potential risk of removal to hundreds of vulnerable individuals whose immigration hearings have been rescheduled unexpectedly, the Justice & Diversity Center (JDC) of the Bar Association of San Francisco (BASF), the ACLU of Northern California, AILA Norcal Advocacy Liaisons and the National Lawyers Guild – San Francisco Bay Area Chapter all signed a letter in November respectfully requesting that Elizabeth Young, Assistant Chief Immigration Judge, and the San Francisco Immigration Court reconsider the practice immediately. 

Since the letter was sent, the attention the advocates brought to the issue likely caused the San Francisco Immigration Court to reconsider the practice. There have not been any additional special ‘no returned notice’ dockets scheduled since the letter was sent in November. At a stakeholder meeting in December, the Court stated that they are prioritizing the dedicated docket and have not scheduled any returned notice dockets through January.

Some cases have been moved up more than a year, resulting in unfair in absentia removal orders. These removal orders mean when an individual does not appear for a scheduled hearing, the Immigration Judge may order their deportation in their absence.

“Rescheduling hearings knowing that the person is unlikely to receive any notice of the change in hearing date and time is unfair and violates a person’s due process rights,” explained Milli Atkinson, San Francisco Immigrant Legal Defense Collaborative Legal Director and Immigrant Legal Defense Program Director at JDC. “It is especially bad given the pandemic which has disproportionately impacted immigrants, led to housing instability and made access to legal services much more difficult.” 

Court observers have already witnessed and documented more than 100 individuals ordered removed in absentia at these hearings when they -unsurprisingly- fail to appear. This practice is resulting in the in absentia removal orders of asylees and other vulnerable immigrants who the Court knows are unlikely to receive actual notice of their hearing.

KQED ran a story highlighting the challenges one woman had been facing. Advocacy efforts also drove a piece about the practice in the San Francisco Chronicle.

Making the situation even more dire, in 2020 and most of 2021 the government offices responsible for enforcing our immigration laws have been largely inaccessible, with limited information provided directly to respondents. There has been a great deal of confusion to both respondents and their legal representatives regarding appointments and hearings that have been rescheduled multiple times, often with little notice. 

“It would be a mistake to assume that all respondents who fail to appear at their hearings are deliberately evading our laws,” stated Atkinson. Indeed, studies have shown that those respondents who receive notice of their hearings attend them at exceptionally high rates.

It is therefore extremely problematic for the Court to expend its limited resources to create a special docket that is highly likely to result in an in absentia order of removal during a time when they know respondents are more likely to experience housing instability, more likely to suffer from a deadly illness, less likely to have access to legal services, and less likely to be able to access the court or their ERO officer because of travel and other COVID related restrictions.

In addition to the letter sent to the Court, the advocates have also sent a letter to ICE’s Office of Enforcement and Removal. The letter requests that local ERO officials give special consideration to cases on the ín absentia dockets and halt the execution of the removal order until an individual is able to speak with an attorney.  

To read the full text of the letter, click here.

The letter states: “As attorneys, we understand that the respondent has the responsibility of informing the Court of an address change within five days of moving. However, the consequences to those who fail to meet this requirement in a timely manner is severe, and there are myriad reasons why this responsibility has become more difficult during the COVID-19 pandemic. Many respondents do not fully understand when and how to inform the court of an address change, the process is often confusing to those who are unfamiliar with our legal system, and those who are illiterate and have limited education and do not understand service requirements. It is especially difficult for many because the change of address form is only provided in English and not everyone has access to translation services. Access to free or low cost legal services where pro se respondents would often receive this information and advice has also been more limited during the pandemic. 

We often meet with individuals who have informed ERO of their new address and mistakenly believe that this information will be submitted to the Court. Many of these respondents are under the impression that they have complied with the Court’s address requirements. Since the COVID-19 pandemic began, hundreds of community members have had difficulty contacting ERO and have reported to our organizations that they would often call or send emails and not receive any response. Their regular check-ins were cancelled with no information on how or when they could check in or update their address.

Additionally, those that do not have a secure address often rely on the EOIR Automated Case Information system to obtain information about their hearing date and are not expecting a hearing they believe to be scheduled in 2022 or 2023 to suddenly advance to within a few weeks.  

Another concern is the timing: they were created during a public health crisis when the Court has limited capacity to hear cases and many respondents who are seeking a decision on the merits of their case are having their hearings postponed to 2024 and 2025. Immigration Judge, legal assistant, and OPLA attorney time is being used to schedule and attend these hearings, when such time could go to countless other cases that are being canceled and reset far into the future. In many of the cases on the Returned Notice Docket, the issue related to the returned notice could be easily resolved by a phone call from a clerk to the respondent, without setting the stage of what is inevitably the failure to appear by many of the respondents.