Due Process for Immigrants

Under attack long before Trump's administrations

Credit: Salvreuters

US citizens are rightfully concerned about the lack of due process for detainees being sent to El Salvador’s notoriously brutal prisons. In this article, I argue that denial of due process is part and parcel of the U.S.’s treatment of migrants and has been for decades.

Due Process refers specifically to a person’s constitutional rights. The Due Process clause of the U.S. Constitution’s Fifth Amendment provides that “no person” shall be deprived of “life, liberty, or property, without due process of law.” It limits what the government can do to a person.

My short overview will show that withholding due process for undocumented people has been going on for decades — under the Clinton, Bush, Obama, and Biden administrations as well as during the Trump years. My article is not intended to be comprehensive. It focuses on the fracturing of due process for people in law enforcement custody and/or in court proceedings.

I seek only to make the point that depriving human beings of their constitutional due process rights in the U.S. is not a novelty with Trump. As such, I won’t go into the very real and important denials of due process by Trump in his two administrations.

Denials of due process from Bill Clinton on have included limiting the right of habeus corpus petitions, erecting barriers in applying for asylum, transferring detained migrants to far-away prisons, en masse court hearings, indefinite detention, “rocket dockets,” and ordering immigration judges to speed up hearings. The deliberate abuses of children has included unsanitary and unsafe jails for unaccompanied children, depriving toddlers and other children of legal representation in deportation proceedings, and sexual torture and other abuses of children in Border Patrol custody.

Bill Clinton (1993-2001)

1. The Flores Case (1993)
Reno v. Flores
Beginning in 1985, activist groups for child migrants began a series of lawsuits against the U.S. federal government over its mistreatment of unaccompanied alien minors in detention facilities. Most notable among the minors was a 15-year-old Salvadoran girl named Jenny Flores. Lawsuits culminated in a settlement. In 1993, the United States Supreme Court ruled in the case of Reno v. Flores regarding the treatment of these unaccompanied minors.

The specific issues were the detention, treatment, and release of minor immigrant children in federal custody. The settlement provided for corrections to their mis-treatments. However, neither detention centers nor federal judges in all the subsequent administrations complied with the settlement. Federal detention centers continued to face law suits. Initial failures to comply with Flores provided a foretaste of the egregious due process violations that were to become a hallmark of the treatment of undocumented migrants.

Jenny Lisette Flores was an unaccompanied 15-year-old girl from El Salvador apprehended by the Immigration and Naturalization Service (INS) after illegally attempting to cross the Mexico/U.S. border. The INS was a precursor of the Department of Homeland Security. She was taken to a detention facility and held among both male and female adults, had to use the same showers and toilet as the male detainees, was strip searched daily, and was told she would only be released to the custody of her parents, who, INS suspected, were illegal immigrants. The implication was that by naming them in order to be released, she in essence would be turning them in to the immigration authorities. Deportation likely would follow.

The Center for Human Rights and Constitutional Law and two other organizations filed a class action lawsuit on behalf of Flores and "all minors apprehended by the INS in the Western Region of the United States." They alleged that the "defendants' policies, practices and regulations violated the Equal Protection Clause and the Due Process Clause” of the U.S. Constitution. The regulation in question was that a detained immigrant minor "could only be released to a parent or legal guardian." As a result, minors like Flores were being detained in poor conditions for "lengthy or indefinite" periods of time.

In 1988, California District Judge Robert J. Kelleher had rejected limitations regarding which adults could receive the minors arguing limitations violated procedural due process. He also held that all minors have the right to a hearing before an immigration judge immediately after their arrest even if they did not request it.

A settlement was reached in 1997 requiring minor children to be released to licensed care programs within 20 days. With limited exceptions, the Flores settlement requires the government to place unaccompanied children in non-secure facilities that are state-licensed to care for dependent children. In other words, unaccompanied children were not to be placed in facilities resembling prisons. Flores affirmed that children are to be given a safe and sanitary environment where they could thrive. However, according to The National Center for Youth Law, during the decades following the settlement, egregious harm to children in federal immigration custody continued. Violations of Flores included such things as no soap or showers, hiding children in motels before expelling them without due process, holding them for long periods of time in overcrowded tent facilities, and other egregious violations of their rights.

In fact, a number of immigrant advocacy lawyers believe conditions worsened after Flores rather than improving.¹

2. Death As a Deterrence, (from 1994)
The Border Patrol Strategic Plan 1994 and Beyond: National Strategy
Technically, the plan did not involve due process. The plan by-passed the basics of due process: charge, legal counsel, judge, court-proceeding, or penalty derived through due process. The Plan was signed by Bill Clinton’s Commissioner of the Immigration and Naturalization Service (INS), Doris Meissner, and implemented by Clinton. It was dubbed “prevention through deterrence” and meant that instead of allowing any “uninspected”, i.e. undocumented, migrant from having a day in court, it by-passed due process altogether. It closed off the safest places for people to cross, i.e. at the urban ports of entry like Nogales, Arizona, instead funneling them into the harshest areas along the U.S./Mexico border. In 1994, that deadly area was the vast and harsh Sonoran Desert but as time passed the area expanded. The intention was to make crossing “so deadly and costly” that undocumented border crossers would die, necessarily depriving them of their life, liberty, and property which is what due process seeks to protect.

The theory was that deaths would act as a deterrence to others seeking to come north. The plan failed, yet the strategic plan continued, expanding to funneling migrants into the border areas adjacent to the Pacific Ocean in California and the Rio Grande in Texas where migrants sometimes drowned. In 2023, Human Rights Watch estimated the death toll was around 10,000. Border watchers believe the actual death toll, including the remains of migrants which have never been recovered, is closer to 30,000.²

2. Anti-Terrorism and Effective Death Penalty Act, (from 1996)
Reducing the Constitutional Right of Habeus Corpus
In the US system, according to Cornell Law School’s Legal Information Institute (LII), “federal courts can use the writ of habeas corpus to determine if a state's detention of a prisoner is valid.” It is used to bring a prisoner or other detainee before the court to determine if the person's imprisonment is lawful. Writs, i.e. petitions, are filed when a detainee or his/her agent, such as a lawyer, believes there was a serious legal error during trial. It commonly is filed when the detainee alleges he/she had ineffective counsel or that the conditions of his/her confinement were unconstitutional, among other reasons. It is an “extraordinary remedy,” according to criminal appeals lawyer, Pat Ford, and is a last resort among detainees who have already tried and failed to overturn their conviction on appeal.

The Anti-Terrorism and Effective Death Penalty Act (AEDPA) amended the Federal judicial code to establish a one-year statute of limitations for habeas corpus actions brought by prisoners. It specified there would be no right of appeal from a final order in a habeas corpus proceeding. In other words, it limited the ability for judicial review for those with deportation orders.³

3. Illegal Immigration and Immigrant Responsibility Act, from 1996
Imposing Barriers to Seeking Asylum
Seeking asylum is a human right according to the Declaration of Human Rights of 1948. It also prohibits countries from returning asylum seekers to persecution. The Illegal Immigration and Immigrant Responsibility Act (IIRIRA) created a “barrage” of barriers to seeking asylum in the U. S., according to Eleanor Acer and Olga Byrne. Among them, they wrote, were a filing deadline on asylum applications, the establishing of summary deportation procedures, and imposition of mandatory detention on certain immigrants.

These were significant changes. A filing deadline prevents refugees from receiving asylum if they cannot prove they filed the application within one year of arriving in the U.S. Summary deportation procedures, including “expedited removal” and “reinstatement of removal,” block asylum seekers from even applying for asylum or accessing an immigration court removal hearing, unless they first pass through a screening process. Finally, “mandatory detention” includes asylum seekers who were placed in expedited removal proceedings upon their arrival at a U.S. port of entry.

IIRIRA also provided for the imposition of three and ten-year bars to re-entry for deported migrants. Substantively, the bars mean a severe difficulty or impossibility of families being reunited after a deportation.⁴

4. Transferral of Immigrant Detainees, from 1999
Purposefully Removing Immigrant Detainees Away From Their Attorney
According to Human Rights Watch (HRW) in 2008, there was a “vast network of more than 300 detention facilities, located in nearly every state in the country.” For example, a detainee might have been arrested in Los Angeles but then transferred to Louisiana. According to HRW, “transfers erect often insurmountable obstacles to detainees’ access to counsel, the merits of their cases notwithstanding. Transfers impede detainees’ rights to challenge their detention, lead to unfair midstream changes in the interpretation of laws applied to their cases, and can ultimately lead to wrongful deportations.” They also take a huge toll on detainees and their families, including their children.

Non-U.S. citizens, including immigrant detainees, despite the U.S. Constitution’s emphasis that they have constitutional rights to due process, do not have some rights citizens enjoy. Among them are the right to be held in the district in which they were arrested. Nevertheless, all immigrant detainees have the right, protected under U.S. due process law as well as human rights law, to be represented in deportation and related hearings by the attorney of their choice. For various immigration and/or criminal issue reasons, immigrant detainees sometimes have a relationship with a lawyer. Transfers of immigrant detainees severely disrupt the attorney-client relationship they have established and is a clear violation of due process.⁵

George W. Bush (2001-2009)

5. The Uniting and Strengthening America By Providing Appropriate Tools Required To Intercept and Obstruct Terrorism Act (from 2001)
The Patriot Act
For unauthorized migrants, September 11, 2001 was the turning point at which they were no longer understood to be violators of simple civil offenses. After that date, Bush and subsequent presidents treated them as dangerous criminals. Specifically, they were redefined as terrorists or potential terrorists. Redefining unauthorized migrants as terrorists or potential terrorists slid effortlessly into due process violations including criminalizing them without cause, indefinite detention without a trial, and en masse trials.

Immigrants who are found not to be deportable for terrorism, but have an immigration status violation, such as overstaying a visa, could face what amounts to a life sentence of imprisonment if their country refuses to accept them. Or, indefinite detention would be allowed if the Attorney General found "reasonable grounds to believe" involvement in terrorism or activity that poses a danger to national security.

In 2001, the American Civil Liberties Union (ACLU) noted,

But there is no requirement that indefinite detainees ever be given a trial or a hearing in which the government would have to prove that they are, in fact, terrorists. Nor would other important procedural protections apply, such as the requirement of proof beyond a reasonable doubt (in criminal proceedings) or proof by "clear, convincing and unequivocal evidence" (in deportation proceedings). Instead, indefinite detention would apply merely on the basis of vague and unspecified allegations of threats to national security.⁶

6. Operation Streamline, from 2005
The Criminalization of Migrants and En Masse Trials
In 2002, Bush created the Department of Homeland Security by combining 22 different federal departments and agencies into a unified, integrated Cabinet agency. Its mission was steered away from customs issues and into national security issues. Its language changed from the relatively neutral “our country” or “the United States” to the more aggressive and defensive, “the homeland”. Whether intentional or not, the word was reminiscent of Hitler’s language for Germany. Among the DHS’s new missions were “Countering Terrorism and Homeland Security Threats” and “Securing U.S. Borders and Approaches.” It is now the third largest department in the U.S. government and the re-structure led to a dramatic increase in criminal prosecutions for illegal entry and illegal re-entry. By 2015, they had become the most prosecuted crimes in the U.S.

Operation Streamline operated by trying arrested immigrants en masse. This means that as many as 80 arrested migrants were tried together in a single trial, often without legal counsel, and sentenced by a judge after only a few seconds or minutes deliberation. For immigration lawyers, trying people en masse, without their understanding what they were agreeing to and without meaningful counsel posed serious and obvious due process concerns.

Almost half of all federal prosecutions and imprisonment stem from Operation Streamline’s unlawful immigration entry and re-entry prosecutions, which are heard in a criminal court rather than a civil immigration court. Those prosecuted face serious consequences. A first-time violation, which on paper is roughly the equivalent of a misdemeanor offense, can lead to six months in prison. Those caught re-entering illegally face up to twenty years in prison. We have to keep in mind that disproportionate numbers of violators re-enter after deportation in order to reunite with their families — their spouses, children, siblings, and/or parents and that many are their families’ primary bread winners. They also may have property here. Others are fleeing persecution or violence in their home countries and have little choice other than to try to return to the U.S.⁷

Barack Obama (2009-2016)

6. Secure Communities (from 2009)/Priority Enforcement Program (from 2014)
Secure Communities (SC) and the Priority Enforcement Program are names without meaningful distinctions for data sharing among local, state, and federal agencies. Its goal is to "check the immigration status of every single person arrested by local police anywhere in the country."

Fingerprints are taken upon arrest, forwarded to the FBI, then forwarded to the Department of Homeland Security (DHS). If the prints match the DHS's Automated Biometric Identification System (IDENT), then ICE may issue a detainer request to the county in which the prisoner is being held. ICE requests that the person be detained for up to 48 hours beyond his/her time served or notify ICE upon their release. These are requests and are not compulsory. Detaining a person amounts to a second arrest and second imprisonment without warrant, charge, or conviction and often leads to prolonged detention well beyond 48 hours. The purpose of the request is so that ICE could pick up the prisoner and initiate deportation proceedings against him/her.

In 2009, according to Julia Preston for the New York Times, ICE officials reported that problems with the database system resulted in the detainment of 5,880 people who turned out to be U.S. citizens. Through March, 2011 alone, Secure Communities resulted in 72,445 deportations. The authors of a 2011 study released by the Chief Justice Earl Warren Institute on Law and Social Policy at the University of California Berkeley School of Law found significant additional violations of due process, i.e. that only 52% of arrestees were scheduled to have a hearing before a judge and only 24% had an attorney. Obama rescinded SC, Trump reinstated it, Biden rescinded it again. Whether it continues to operate is unclear. According to ICE’s website, it has been mothballed.⁸

7. Border Patrol’s Mental, Physical, and Sexual Abuses of Children
ACLU Obtains Documents Showing Widespread Abuse of Child Immigrants in U.S. Custody: New Report Is Based on Thousands of Government Documents Obtained Through the Freedom of Information Act That Detail Horrific Stories (2009-2014)
In 2018, the American Civil Liberties Union (ACLU) and the International Human Rights Clinic at the University of Chicago Law School published a report based on 30,000 pages of documents detailing the horrendous abuses of children in the custody of Border Patrol. The documents had been obtained as the result of a successful Freedom of Information Act (FOIA) lawsuit and covered Barack Obama’s from administration, i.e. 2009-2014. Mitra Ebadolahi, ACLU Border Litigation Project staff attorney, wrote “The misconduct demonstrated in these records is breathtaking, as is the government’s complete failure to hold officials who abuse their power accountable.”

The documents reveal shocking violence and abuse against migrant children, many of whom were fleeing violence in their home countries. They show the denial of clean drinking water and adequate food, failure to provide necessary medical care, detention in freezing, unsanitary facilities, and other violations of federal law and policy and international law. They provide evidence that U.S. officials were aware of these abuses as they occurred, but failed to properly investigate and remedy them.

Here is a sampling of what U.S. agents did to children in their custody:

• Punched a child’s head three times

• Kicked a child in the ribs

• Used a stun gun on a boy, causing him to fall to the ground, shaking, with his eyes rolling back in his head

• Ran over a 17-year-old with a patrol vehicle and then punched him several times

• Verbally abused detained children, calling them dogs and other abusive names

• Denied detained children permission to stand or move freely for days and threatened children who stood up with transfer to solitary confinement in a small, freezing room

• Denied a pregnant minor medical attention when she reported pain, which preceded a stillbirth

• Subjected a 16-year-old girl to a search in which they “forcefully spread her legs and touched her private parts so hard that she screamed”

• Left a 4-pound premature baby and her minor mother in an overcrowded and dirty cell full of sick people, against medical advice

• Threw out a child’s birth certificate and threatened him with sexual abuse by an adult male detainee

The documents showed evidence of BP agents holding migrant children in excess of the 72-hour maximum period permitted by law and of officials’ efforts to deport children using coercion and without due process.⁹

8. Indefinite Detention (from 2011)
The National Defense Authorization Act
The National Defense Authorization Act (NDAA) expanded on Bush’s Patriot Act, providing for indefinite detention without trial of suspected foreign terrorists. As a practical matter, indefinite detention became routine for undocumented migrants who were often held for months or years before having any sort of hearing.

Anthony Romero, then Director of the ACLU, said, “President Obama's action today is a blight on his legacy because he will forever be known as the president who signed indefinite detention without charge or trial into law.” He continued,“The statute is particularly dangerous because it has no temporal or geographic limitations . . . .”¹⁰

9. Massive Expansions of Incarcerations of Central American Mothers and Children (from 2014)
Prisons Falsely Labeled Child Care Facilities
Beginning in the summer of 2014, thousands of asylum-seeking children and mothers fleeing rape, kidnapping, torture, and other acts of extreme violence in the Central American countries of Guatemala, Honduras, and El Salvador were incarcerated. The Obama administration entered into contracts with private, for-profit prisons to build massive detention centers to contain the mothers and children. All during his administration, he fulfilled quotas of 34,000 for-profit prison beds filled with immigrant detainees per day and 400,000 deportations per year.

Outrage over the construction of these massive prisons came from the American Immigration Lawyers Association (AILA), the American Immigration Council (AIC), the Catholic Legal Immigration Network (CLINIC), the Refugee and Immigrant Center for Education and Legal Services (RAICES), Human Rights First (HRF), and the ACLU. Their outrage focused on those built in the remote towns of Dilley, Texas and Karnes, Texas, in Artesia, New Mexico, and in Berks County, Pennsylvania but there were others.

According to the ACLU, the compounds in TX “resemble internment camps.” There the children endured freezing, overcrowded holding cells with inadequate facilities, nutrition, and medical care. They suffered from poor health, weight loss, diarrhea, bed-wetting, and nightmares as a result. The mothers went on hunger strikes in protest. Despite their credible fear that deportation was tantamount to a death sentence for them and their children, they were denied attorneys.

Judge Dolly M. Gee, a federal district court judge, ruled that the Obama administration and DHS were circumventing and thus violating the Flores Settlement Agreement. In August, 2015, she ordered DHS to comply with Flores by October, 2015.

According to AILA, AIC, CLINIC, RAICES, and HRF, in a letter to USCIS and ICE, that deadline, passed without any hint of compliance. Advocates in the three family detention facilities in Texas and Pennsylvania instead witnessed the implementation of a rapid deportation strategy that short-circuited Flores and due process.

They castigated the departments for flawed negative fear determinations. They found the prisons were adjudicating requests for reconsideration of negative fear determinations based on a heightened standard. That led to the removal of families with viable claims for protection, depriving parents and children of their statutory right to an immigration judge’s review of a second negative fear determination. In turn, that deprived certain children of the opportunity to assert their claims for asylum by refusing to fully consider the child’s claims independently of his/her parents’ claims. They found that the prisons deported represented parents and children while their cases were still in progress, disregarding pending and scheduled requests for reconsideration by an asylum officer, pending civil rights complaints, and pending petitions for review to the federal courts, in the process transferring represented mothers and children away from counsel sometimes without meaningful or any notice.

The London newspaper, The Guardian, reported that it had confirmed more than eighty cases in which Central Americans deported from the U.S. were killed upon return. The time frame was between January, 2014 and October, 2015. You can read affidavits of the brutal treatment of other returned children in the countries from which they had fled here.

Adding insult to injury, in October, 2014, Obama argued that the horrendous prisons for mothers and children were “licensed day-care centers” and thus complied with the Flores settlement. To be clear, these internment camps were not “licensed day-care centers.”¹¹

10. Toddlers Deemed Capable of Representing Themselves in Immigration Court, (from 2014)
In October, 2014,Beth Werlin and Kristen MacLeod Ball, lawyers with the ACLU, asked this rhetorical question: “How Can a 3-Year Old Represent Himself in Court?” It was rhetorical because the answer is obvious: he cannot. Yet, Werlin and Ball wrote, every week, “in immigration courts across the United States, hundreds of
children, some as young as a few months old, come before immigration judges and are called upon to defend themselves against deportation.” They noted that fewer than a “third of children with immigration cases pending in June 2014 had legal representation.”

Incredibly, an immigration judge notoriously claimed toddlers were capable of representing themselves in immigration court. Virginia based federal immigration judge, Jack Weil, trained lawyers in how to judge immigration cases. In an interview, he said, “I’ve taught immigration law literally to 3-year-olds and 4-year-olds. It takes a lot of time. It takes a lot of patience. . . . but it can be done.” Judge Weil’s claims were preposterous, but they aptly reflected the general federal opinion.

Attorneys and court observers around the country reported that children were receiving less time to find attorneys, including pro bono attorneys, a problem made worse by the increasing numbers of children needing counsel. Court observers reported that immigration judges were asking children to complete complex asylum applications, which had to be completed in English, not their native language. Often there were no translators who could help them especially if they spoke an indigenous language like Mam or K’iche.¹²

11.“Rocket Dockets” in Immigration Court, (from 2014)
The problem of “rocket dockets” in Obama’s immigration proceedings magnified the problem of lack of meaningful representation and other immigration due process issues. Rocket dockets refer to a priority for speed and strict adherence to deadlines in court proceedings.

Between 2014 and 2015, some 40,000 cases were closed by “rocket docket” courts, which aim to expeditiously push immigration proceedings involving families with childrenthrough the legal pipeline. This was according to a report by Syracuse University’s Transactional Records Access Clearinghouse (TRAC).

The report found that in 70 percent of those cases detained migrant families were processed through immigration courts without legal representation. The processing often took only a few weeks or even fewer.

On paper, “rocket docket” cases are civil, not criminal, so individuals are not afforded sixth amendment rights to an appointed attorney. Nevertheless, there are still constitutional ramifications, said Stephen Yale-Loehr, a professor of Immigration Law Practice at Cornell Law School. “Basic due process applies to everyone,” he said. These families have “an international right” to seek protection under the U.N refugee Convention signed by the U.S., but those rights are being denied due process if they don’t have enough time to seek a lawyer, he said. Moreoever, rocket docker speed inherently disenfranchises those that are most vulnerable, i.e. mothers and children, many who have merit based asylum cases.”¹³

Joe Biden (2021-2025)
12. Re-vamped Rocket Dockets with a Dedicated Docket for Families (on or after May 28, 2021)
Mary Meg McCarthy, Executive Director of the National Immigrant Justice Center, issued this statement on Biden’s re-vamped rocket docket for families. “The National Immigrant Justice Center (NIJC) condemns the Biden administration’s plan to force families who arrive in the United States seeking asylum to go through expedited court proceedings that will rob them of basic due process protections, including the opportunity to obtain adequate legal counsel or to fully prepare their cases.

Prior administrations’ reliance on so-called ‘dedicated dockets’ has resulted in thousands of families navigating the asylum system alone, without a fair opportunity to present their stories to immigration judges who will decide whether to allow them to remain in the United States or deport them to the violence or persecution they fled.”

The Immigrants’ Rights Policy Clinic of the Center for Immigration Law and Policy UCLA School of Law in a lengthier report zeroed in on those in the rocket docket in Los Angeles. They reported on families, children, nationalities, and languages. They found that As of February 1, 2022, approximately 2,410 families were assigned to the Docket. Most of the families are charged with entry without inspection (EWI). Twenty-five percent were 6 years old or younger. As of February 2022, 2, 2968 children were assigned to the Docket, all as part of family units.

The five most represented nationalities in the Los Angeles docket were Guatemala, El Salvador, Nicaragua, Honduras, and Colombia. Families from these countries made up 82.4% of cases. Legal service providers explained that the nationalities differ from those typically represented in past administrations’ accelerated dockets. There were fewer families from Mexico than in previous rocket dockets. The Center noted that certain countries would not accept families who had been expelled under Trump’s Title 42.

The primary language for 88.7% of individuals was listed by the Docket as Spanish. The Center suggested that this percentage may be misleading. For instance, Guatemalan individuals make up around 20% of the Docket. However, Guatemala, has a population of fifteen million people, of whom 40% are indigenous and speak indigenous languages, not Spanish.¹⁴

13. Thousands of children deported without legal representation, (from 2022)
The Center for Immigration Law and Policy (CILP) at the UCLA School of Law found that the Biden administration had failed children in immigration court under its watch. The Center’s damning report on Biden’s policies led to grave injustices for children facing immigration court proceedings and resulted in tens of thousands of children ordered deported, most without legal representation or a “fair day in court”.

In the first five months of Fiscal Year 2022, almost one third of all new cases in immigration court involved children, including tens of thousands of children under the age of five. Some of these children are “unaccompanied” because they arrived alone. Others are in proceedings with their families, including on his fast-track “Dedicated Docket” for families seeking asylum.

Biden’s “failure to ensure legal representation has produced a massive due process crisis,” said Talia Inlender, Deputy Director of the Center. “It should be obvious that immigration court proceedings are far too complex for children to navigate without legal representation, especially when the consequences are so dire.”

She continues, “Under the Biden administration (as in past administrations), children are ordered to appear in immigration court against trained government prosecutors, even if they have no lawyer to represent them. This is true despite the fact that the legal avenues most often available for children to remain safely in the United States - asylum and Special Immigrant Juvenile (SIJ) status - are among the most complex in the immigration system. And, if children fail to appear, they are ordered removed in absentia, even if they have no control over whether they are able to come to court.

“There is no other legal context in which children are held legally responsible for circumstances over which they have no control,” said Ahilan Arulanantham, Faculty Co-Director for the Center. “Yet the Biden administration has punished tens of thousands of children who fail to appear in immigration court by entering deportation orders that will follow them for the rest of their lives. This practice is unlawful, and it must end.”

The report’s key findings included:

• in a five-month period in FY 2022 alone, almost one third of immigration court cases initiated by the Biden administration –more than 80,000 in all – were against children, over 30,000 of whom were under the age of 5, according to the Transactional Records Access Clearinghouse (TRAC)

• unrepresented unaccompanied children are at least five times more likely to be ordered removed than children with access to counsel

• by the government’s own account, 44% of unaccompanied children and 51% of families on the Dedicated Docket lack legal representation

• the vast majority of removal orders entered against children are for failure to appear: approximately 72% of removal orders against families on the Los Angeles and Boston Dedicated Dockets were issued in absentia, with over 48% against children, many under the age of six. 86% of removal orders issued against unaccompanied children were for failure to appear

• immigration courts under the Biden administration ordered more than 13,000 unaccompanied children removed in absentia between Fiscal Years 2022 and 2023

The report details how the Biden administration’s treatment of children in immigration court was unlawful and called on the Biden administration to prohibit in absentia removal orders against unrepresented children, terminate the dedicated docket, and ensure legal representation for all unrepresented children in removal proceedings.¹⁵

Final Words
I had planned to post my experiences with each of these denials of due process, but it is now overly long. I may do that in a future post.

Thanks so much for reading this and all my posts! I appreciate y’all so much!

1. National Center for Youth Law, “Enforce the Flores Settlement Agreement,” https://youthlaw.org/initiatives/enforce-flores-settlement-agreement, accessed April 27, 2025, Wikipedia, “Reno v. Flores,” https://en.wikipedia.org/wiki/Reno_v._Flores, accessed April 27, 2025, National Center for Youth Law, “Goverment Detention of Children in Motels Violates Flores Settlement,” https://youthlaw.org/news/governments-detention-children-motels-violates-flores-settlement-agreement, accessed April 26, 2025.

2. U. S. Border Patrol, "Border Patrol Strategic Plan 1994 and Beyond: National Strategy"; Human Rights Watch, July 26, 2023. https://www.hrw.org/news/2023/07/26/statement-human-rights-watch-human-cost-harsh-us-immigration-deterrence-policies, accessed April 22, 2025.

3. Colombo Hurd Law, “Anti-Terrorism and Effective Death Penalty Act of 1995,” https://www.colombohurdlaw.com/anti-terrorism-effective-death-penalty-act-of-1996/, accessed April 22, 2025; Pat Ford Appeals, Writ of Habeus Corpus, https://patfordappeals.com/faq-items/what-are-the-grounds-for-a-writ-of-habeas-corpus/, accessed April 22, 2025; 104th Congress, S.735, https://www.congress.gov/bill/104th-congress/senate-bill/735, accessed April 22, 2025.

4. Eleanor Acer, Olga Byrne, “How the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 Has Undermined US Refugee Protection Obligations and Wasted Government Resources,” Center for Migration Studies, 2017, https://cmsny.org/publications/illegal-immigration-reform-immigrant-responsibility-act-1996-undermined-us-refugee-protection-obligations-wasted-government-resources/, accessed April 22, 2025, Cornell Law School,”Illegal Immigration Reform and Immigration Responsibility Act,” https://www.law.cornell.edu/wex/illegal_immigration_reform_and_immigration_responsibility_act, accessed April 22, 2025,

5. Human Rights Watch, “Locked Up Far Away: The Transfer of Immigrants to Remote Detention Centers in the United States, December 2, 2009, https://www.hrw.org/report/2009/12/02/locked-far-away/transfer-immigrants-remote-detention-centers-united-states, accessed April 23, 2025.

6. Wikipedia, “Indefinite Detention,” https://en.wikipedia.org/wiki/Indefinite_detention, accessed April 26, 2025, American Civil Liberties Union, “How the Anti-Terrorism Bill Permits Indefinite Detention of Immigrants,” October 23, 2001, https://www.aclu.org/documents/how-anti-terrorism-bill-permits-indefinite-detention-immigrants, accessed April 26, 2025.

7. Department of Homeland Security, “Mission,” updated February 26, 2023, https://www.dhs.gov/mission, accessed April 26, 2025, Wikipedia, “United States Department of Homeland Security,” https://en.wikipedia.org/wiki/United_States_Department_of_Homeland_Security, accessed April 26, 2025, American Civil Liberties Union (ACLU), “Coalition Letter to Attorney General from 171 Organizations to End Streamline Prosecutions, July 28, 2015, https://www.aclu.org/documents/coalition-letter-attorney-general-171-organizations-end-streamline-prosecutions, accessed April 25, 2025, Joshua Breisblatt, Immigration Impact, “Operation Streamline: Ten Years of Criminalizing Immigrants,” December 15, 2015, https://immigrationimpact.com/2015/12/15/operation-streamline-immigration/, accessed April 26, 2025, National Network for Immigrant and Refugee Rights, https://nnirr.org/downloads/operation_streamline_fact_sheet_draft3.pdf,accessed April 25, 2025.

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14. National Immigrant Justice Center, “Biden’s Return to the Failed Immigration Court ‘Rocket Docket’ Will Deprive Asylum Seekers of Justice & Endanger Lives,” May 28, 2021, https://immigrantjustice.org/press-releases/bidens-return-failed-immigration-court-rocket-docket-will-deprive-asylum-seekers, accessed April 25, 2025, Immigrants’ Rights Policy Clinic, “THE BIDEN ADMINISTRATION’S DEDICATED DOCKET Inside Los Angeles’ Accelerated Court Hearings for Families Seeking Asylum,” May, 2022, https://law.ucla.edu/sites/default/files/PDFs/Center_for_Immigration_Law_and_Policy/Dedicated_Docket_in_LA_Report_FINAL_05.22.pdf, accessed April 25, 2025.

15. UCLA Center for Immigration Law and Policy, “No Fair Day in Court: Damning New Report Reveals the Biden Administration’s Unlawful Treatment of Children in Immigration Courts,” December 13, 2023, http://law.ucla.edu/news/no-fair-day-damning-new-report-reveals-biden-administrations-unlawful-treatment-children-immigration-courts, accessed April 29, 2025.