Recommendations on Protecting the Due Process Rights Of Low-Income, Pro Se Immigrants Around the Opening of Lowell Immigration Court
Dear Acting EOIR Director Mary Cheng, Chief Immigration Judge Sheila McNulty, and Assistant Chief Immigration Judge David Cheng:
The undersigned 13 New England nonprofit, immigrant-serving organizations write to respectfully raise concerns regarding barriers that low-income pro se immigrants at the new Lowell Immigration Court are facing and offer recommendations to address these concerns. We greatly appreciate the stakeholder engagements held prior to the opening of the new Court. While we understand that the opening of the Court is a significant undertaking and while some issues will naturally take time to sort out, we believe there are some critical issues to be addressed immediately to preserve access to justice and due process for the particularly vulnerable population of pro se and low-income respondents, which often include persons who rely on public transportation. We respectfully outline solution-oriented recommendations in this letter.
As you know, immigration legal needs for low-income applicants in New England far outstretch available legal services capacity. Accordingly, our organizations often work to assist immigrants in navigating the immigration system pro se and we have deep expertise in the barriers they encounter seeking immigration benefits. Immigration cases can have incredibly high stakes including life or death outcomes, loss of freedom, or family separation. Low-income pro se respondents face enormous barriers of language and culture, trauma, and access to transportation, in addition to lacking resources to remedy or reduce these barriers.
Accordingly, we respectfully urge EOIR and the Lowell Court to take all steps possible to help safeguard access to justice and due process for low-income pro se applications.
Recommendations:
1. Completing zip code information should be prioritized to ensure vulnerable applicants have the maximum amount of time to prepare to put their best cases forward.
As of the date of this letter, there are still zip codes missing from the Court website, leaving people and attorneys trying to provide intake and advice uninformed about vital information regarding their upcoming hearings. Without notice of place of a hearing, proper notice is not being given. As our higher courts have noted, if the three words Notice to Appear mean anything at a minimum is that the Government must provide notice of the time and place that would enable a noncitizen to appear at their removal hearing. We urge the Court to take every effort to complete these updates as soon as possible and distribute them strategically in relevant languages and disseminate the information to the impacted communities.
2. Clarify the Court’s address on the EOIR portal.
Some applicants are seeing two different addresses appear on the EOIR portal under “Next Hearing Information” and “Court Contact Information.” The different addresses -- including one address that does not actually exist geographically -- is extremely confusing for pro se respondents to navigate.
3. Adopt a policy of leniency regarding absentia orders for respondents missing their first Master Calendar hearing, and/or allowing applicants to have until the end of the day to appear for their hearings until the Court has been operating for a significant period of time.
Low-income pro se respondents will by and large be navigating public transportation with numerous transfers to arrive at the Court which is not easily accessible to public transportation. For example, public transportation times from Portland, Maine to the Lowell Court are expected to take more than five hours without traffic, construction, or other ordinary occurrences. Newly arrived immigrants who do not speak English will be attempting to navigate multiple buses, the Boston subway system, and traveling on foot to arrive at Court hearings. It is in the interest of justice that pro se respondents not face the dire consequences of being removed in absentia if they are unable to arrive precisely at their hearing time, especially for their first hearing. See point 6, supra, about providing a shuttle from Lowell or other efforts in conjunction with public transportation to expand bus service to the new Court.
4. All judges should make WebEx hearings available in all cases without requiring a motion.
As of this date, 10 out of 14 Immigration Judges at the Lowell Court require pro se respondents to appear in person or to file a motion to appear by WebEx. We urge the Lowell Court judges to all adopt a blanket policy that allows all people to appear by WebEx without requiring a motion. Filing a motion – requiring drafting, including the correct information and arguments, money for postage and printing, and correctly delivering to the Court with a copy to the OPLA attorney – is burdensome and confusing for low-income pro se respondents and can become resource intensive for nonprofit organizations seeking to serve this vulnerable population.
5. Adopt a policy for all judges to have a consistent practice around use of WebEx and clearly communicate that process to pro se respondents and others.
Some judges put all respondents in the virtual WebEx Court room at the beginning of the hearing time while some leave respondents in the waiting room and only call one person at a time. Pro se litigants are experiencing confusion around these different approaches and nonprofit organizations are consistently hearing that people are not clear if they have logged in correctly or if their hearing got canceled as they sit in a waiting room with no indication of whether they are in an active queue. We recommend all respondents be brought into the WebEx room so that they are not waiting for hours with a blank screen. The Court should conduct outreach and work with nonprofit organizations serving pro se litigants to clarify the process.
6. EOIR should engage with local governments and seek appropriate federal funding and strategies to improve access to transportation to the court.
Given the challenging location of the Court for low-income pro se respondents, we encourage EOIR to pursue creative solutions and appropriate funding to help mitigate burdens and promote access to justice. As it is in the public interest of states and communities that immigrant residents successfully navigate their cases and achieve stability and security, we recommend engaging with stakeholders such as state and local governments and transit authorities. Solutions are needed to provide public access to this new Court. Targeting resources to expand current bus routes or provide a direct shuttle is needed.
7. EOIR should continue with stakeholder meetings and provide a quarterly meeting for nonprofit organizations and attorneys to keep abreast of the operation of the new Court and provide a forum to track issues as they arise.
It is critical that EOIR engage with non-profit organizations and community organizations serving low-income respondents to continually identify and address challenges and barriers to justice and due process. Engagement should include distributing critical information in key languages, through multiple channels, with input from immigrant communities.
We thank you for your consideration of these important issues, the rights of vulnerable immigrant communities navigating the immigration system, and our recommendations. We respectfully seek engagement to discuss further and stand ready to partner, advise, and assist.
Please contract Deirdre M. Giblin, Staff Attorney, Massachusetts Law Reform Institute at dgiblin@mlri.org and Lisa Parisio, Policy Director, Immigrant Legal Advocacy Project at lparisio@ilapmaine.org for any questions or to set up engagement.
Sincerely,
Harvard Immigration and Refugee Clinical Program
Immigrant Family Service Institute, Inc.
Immigrant Legal Advocacy Project (ILAP)
Justice Center of Southeast Massachusetts
Kids in Need of Defense (KIND)
Massachusetts Immigrant and Refugee Advocacy Coalition (MIRA)
Massachusetts Law Reform Institute