DOJ Looks to Automatically Dismiss Immigration Appeals as Trump Pushes Mass Deportations

The Trump administration’s mass deportation campaign is about to receive a forceful boost, with the Justice Department planning to quickly and automatically dismiss immigration cases on appeal.

This low-profile administrative tweak would give federal agents permission to immediately arrest more immigrants under the pretext that their cases are suddenly deemed “finalized.” And the move comes just as the Department of Homeland Security is buying warehouses across the country to develop a network of mass detention camps that have caused fierce local pushback.

Jennifer Peyton, who was the assistant chief immigration judge in Chicago until last summer, called the plans “yet another deprivation of due process for noncitizens who are already getting the short end of the stick.”

Peyton, now an immigration lawyer in private practice, said the DOJ’s plans are an “extension of the acts of the administration to intentionally destroy the immigration court.”

The DOJ’s plans are laid out in an unpublished entry to the Federal Register that’s scheduled to appear officially on Friday. In it, the DOJ’s quasi-judicial Executive Office for Immigration Review said it is seeking to “streamline administrative appellate review” by changing how the agency’s administrative high court considers appeals.

Currently, people who lose cases in the DOJ’s administrative EOIR court can seek review of judges’ decisions from the Board of Immigration Appeals in Falls Church, Virginia. However, the BIA has been inundated with a flood of appeals — and as those get processed, migrants continue to go about their everyday lives. Government data shows that there are tens of thousands of cases in the backlog at any given moment, with pending appeals reaching 91,973 during the start of fiscal year 2022.

According to the DOJ in this proposed rule, this backlog has grown to 200,000 ongoing immigration cases on appeal. And that’s under the current system, which allows a single BIA board member to make a decision on a case.

However, the DOJ is now looking to upend that system.

The interim final rule, which would kick in 30 days from Friday, states that “the board cannot — and does not need to — adjudicate every case on the merits with the tools at its disposal.” Instead, the DOJ says that the department is going to “provide the board more flexibility in reviewing appeals.”

Under the new proposed rule, cases will be automatically dismissed within 15 days “unless a majority of current board members vote to consider the appeal on the merits.”

EOIR did not respond to questions from NOTUS asking where this idea originated, who authored the proposal or whether the agency would reconsider the proposal if it receives negative feedback from the public.

Two comments in the draft policy seem to suggest that the measures will only apply to fresh, incoming appeals and not the current 200,000 pending cases before the BIA. In one, the DOJ says the proposal will “provide EOIR the flexibility necessary to issue timely decisions on new appeals.”

In another, the DOJ says, “This change in procedure will allow the board to focus its limited resources on adjudicating the more than 200,000 pending appeals and, going forward, on selecting decisions for review that present novel issues warranting the board’s attention.”

Craig Relles, an immigration lawyer in the New York City area, stressed that a change of this kind would make it even more expensive for people to fight through their immigration cases to the end.

Last year, the DOJ jacked up various court fees — prompting former judges and lawyers to cry foul. The cost of an appeal skyrocketed nearly tenfold from $110 to $1,010. Immigration lawyers who spoke to NOTUS on Thursday said this new proposal all but ensures that every appeal becomes a necessary sunk cost on the way to yet another appeal in the federal circuit courts, which costs upwards of $600.

“It’s going to flood the federal courts,” Relles warned.

But in the short term, rapidly closing immigration court appeals will just green light more arrests by Immigration and Customs Enforcement teams, Relles said.

“It’s a mechanism by which you could pick up more people,” he said. “If you eliminate the backlog of appeals, you can then detain more people as having ‘final orders of deportation.’ They’re going to detain the people that have otherwise been pursuing their appellate rights, dismiss their appeals unilaterally without meaningful review, and detain them.”

Peyton, the former immigration judge, urged the American public to more closely examine the government contractors who will profit from a quick and massive flood of jailed migrants at camps.

“It keeps getting worse,” she said. “The whole goal is to detain people. And this just means they’re going to be detained longer. Someone is going to make money off of them staying in beds, the companies selling overpriced goods in the commissary, the people charging $15 for a five-minute phone call, all on the suffering of these noncitizens.”