DHS to Open 'Tent Courts' to Public

Likely less exciting than you would be led to believe

By Andrew R. Arthur on January 1, 2020

On December 29, 2019, the Wall Street Journal reported that the Department of Homeland Security (DHS) will be opening the temporary immigration courts in Brownsville and Laredo to the public. It will likely be less exciting than many in the press would have you believe.

The paper reported:

The courts — temporary building structures beneath wedding-style tents — sit at international crossings with Mexico, making it possible for immigrants to attend court hearings without being permitted to enter the U.S. beyond the border.

Unlike regular immigration courts and most others across the country, journalists, advocates and other members of the public weren't permitted to enter, though lawyers representing migrants were allowed access on the dates of their hearings.

Like everyone else (other than the government, lawyers, and the respondents themselves), I have not been able to check out the set-up at these temporary courts (yet), but they are likely a bit sturdier than the canopy that was erected to ensure that your niece's outdoor nuptials were not ruined by a passing shower. The U.S. government has been providing temporary shelters for emergency responders at home and our troops abroad for almost two decades, and they have gotten pretty good at it in my experience.

The courts are being opened at the direction of Acting Homeland Security Secretary Chad Wolf "to ensure consistency, clarity, and transparency", according to a DHS spokeswoman.

Casual observers may ask why DHS, rather than the Executive Office for Immigration Review (EOIR), the Department of Justice component with jurisdiction over the immigration courts, would be making this call. The Journal explains that "access to the tent courts, which were erected on federal property, is controlled primarily by" U.S. Customs and Border Protection (CBP), which is charged with apprehending those foreign nationals who have entered illegally or been deemed inadmissible at the ports of entry. Most of those aliens are in proceedings because they have been found to have credible fear, and are being permitted to apply for asylum.

Although the structures are a bit unique, control of those facilities is not an unusual set-up. When I was an immigration judge at a detained facility in York, Pa., my courtroom and chambers were built and paid for by DHS, which had contracted for detention space at the facility.

There are no actual judges physically present at the two facilities in question. Instead, judges at other courts hear those cases via video teleconference (VTC). Again, VTC is not unusual in the EOIR system. In addition to the alien respondents who were detained at York, I also heard cases from my courtroom via VTC from remote locations, including the Berks Family Shelter near Reading, Pa., and two federal correctional institutions at Allenwood and Moshannon, hours away. Although there were occasional glitches in the system, the VTC set-up in no way affected the proceedings, or the rights the respondents received in those proceedings.

In fact, as the Journal noted: "It is possible to view most proceedings while sitting in a judge's chambers [NB: they likely mean "courtrooms"] miles from where a migrant is located, but members of the public haven't been allowed inside the facilities where migrants' hearings are held." Really, all that the visitors who will now be allowed into the two facilities will see is the other end of the proceedings, from the respondents' side, as opposed to the immigration judge's.

Interestingly, the paper reports:

The unique setup has raised concerns among immigrant advocates and some judges who say it is impossible to know how migrants are treated inside the tent-court facilities.

The immigration judges' union has said judges are concerned migrants are frequently handed court documents containing errors, like inaccurate court dates, that judges can't review.

I never had concerns of this sort concerning the cases that I heard via VTC, and in fact court staff went to great pains to ensure that the record was complete at both ends — a scenario I seriously doubt is any different at the temporary courts in Brownsville and Laredo. That said, however, because mine was a detained court, the respondents were brought to their appearance by the government (with the exception of one detainee out of more than 10,000 who refused to come out of his pod), whereas the respondents who are appearing before those courts are returned to Mexico to await their proceedings under the Migration Protection Protocols (MPP, better known as "Remain in Mexico").

This, however, is simply a matter of logistics, and the government plainly has an interest in ensuring that they get the paperwork right, particularly given the fact that MPP is the subject of ongoing litigation in the Ninth Circuit.

The Journal further reports that:

Judges say it is also impossible to determine a reason when a migrant living in Mexico fails to show up for a hearing — whether it is of their own volition, or because CBP officers didn't see them approach the international bridge in time or turned them away.

The failure of any respondent to allot sufficient time to make it to a hearing is usually not a concern in most immigration-court proceedings. While I would make allowances for attorneys who got stuck in traffic, this was a discretionary determination on my part. I represented the government in proceedings in which respondents or counsel who showed up late received orders of removal and were told to file motions to reopen.

Further, given the aforementioned litigation in the Ninth Circuit, CBP has a vested interest in ensuring that respondents who have court appearances scheduled are able to make it across the port to appear for their hearings. And, as my colleague Todd Bensman has reported, there are likely two other reasons why respondents would not appear for their court cases: they gave up otherwise meritless asylum claims, or they decided to simply enter illegally and evade detection.

While I have not witnessed proceedings at either of these temporary courts, I seriously doubt that they are over in a matter of minutes, and if a respondent without counsel showed up late, I doubt that the immigration judge would not cut them some slack. And those aliens who are represented by counsel would have someone in court to explain their absences.

Speaking of lawyers, according to the Journal:

Advocates have raised other due-process concerns. The few migrants who have found lawyers to represent them are routinely permitted just 15 minutes to speak to their lawyers ahead of a hearing — far less time than even migrants in immigration detention are permitted. And advocates who would like to observe a specific person's hearing often find it impossible, since judges are frequently assigned cases on short notice.

I am guessing that the allusion to "migrants who ... are routinely permitted just 15 minutes to speak to their lawyers ahead of a hearing" refers to respondents who are conferring with their lawyers on this side of the border just before their cases are called.

There is nothing that I am aware of that would prevent those lawyers from travelling to the other side of the border to prepare their cases. It is relatively easy to cross into Mexico (the last time I went, in January, there was not even a Mexican government official present — I just walked in), and lawyers routinely travel to meet with their clients to assess their cases.

In addition, given the widespread availability of cellular and internet communication on both sides of the border, there is no reason why lawyers in the United States could not confer with their clients in Mexico via cellphone, Skype, text, or e-mail.

With respect to "advocates" who want to observe cases, again, there is nothing that prevents them from going to immigration court to scan the judges' posted dockets to see what cases are pending on any given day (assuming that the cases are being heard by different judges from the same courts). An inability to access that information in advance is likely due to the exceedingly restrictive access the immigration courts provide to information about any given alien's case — a policy that EOIR has followed since at least the late 1990s, and which is intended to protect the alien, not to impede the public's ability to find information.

In any event, with DHS's opening of those courts to the public, this should not be an issue in the future.

Under the current administration, any action that DHS takes with respect to immigration is likely to be viewed with skepticism, if not open hostility, from certain quarters. I can certainly understand DHS's interest in closing those proceedings to the public in order to protect the aliens themselves and prevent the proceedings from becoming a zoo.

I will also note, not as an aside but as a salient point, that pursuant to regulation, the fact that any given alien has applied for asylum, or has received a credible fear interview, is protected from disclosure to any third party. Given this, in my opinion, all master calendar hearings (the immigration equivalent to arraignments and motions hearings) involving aliens who have received credible fear determinations, all such hearings that involve the submission of asylum applications, and any hearing on the merits of an asylum application should be closed to the public — "advocates" who are not representing the alien included.

This regulation is, again, intended to protect the alien, and means what it says — I once faced the prospect of being held in contempt by a federal district court judge (and jailed) to protect the confidentiality of such information in the past (my boss advised me to take my toothbrush to the hearing). Given the intense scrutiny of any Trump immigration initiative, however, DHS likely had no choice but to open these proceedings.

Perhaps it is just because I have participated and presided over thousands of hours of immigration-court proceedings, but I find that they are generally fairly ministerial and bland affairs. They are really not that different from spending the day in traffic court. Those who are clamoring to attend these hearings will likely emerge underwhelmed.

But given the public interest, DHS likely made the right call. It is now up to the attendees to comport themselves appropriately.