3,500 hearings show rapid rise in procedural removals in U.S. immigration courts

Procedural removals are accelerating in U.S. immigration courts.

Researchers who observed more than 3,500 asylum hearings over the last year found that a growing number of asylum seekers are being ordered removed before a judge examines the evidence of their claims. The study covered 107 courtrooms across 13 states and Puerto Rico. The authors, Amelia Frank-Vitale and Lauren Heidbrink, published their findings in a book titled Dismantling Due Process: The Rise of Procedural Removal in U.S. Immigration Courts. They describe a pattern where the government dismisses cases through paperwork or early denials before testimony occurs.

The practice of pretermission allows judges to decide from preliminary filings that a person is ineligible for relief. This process bypasses standard procedures. There is no testimony, no physical evidence, and no opportunity for the asylum seeker to respond to the government's argument. The government effectively finds a way around adjudicating the claim. This method has become a primary tool for denying cases before the court weighs the merits of the protection sought.

Third-country agreements illustrate the practical impact of this approach. In a Santa Ana courtroom, a Guatemalan asylum seeker faced a judge who questioned her safety in Ecuador or Uganda. The woman stated she had never been to either country and knew no one there. She asked who would help her. The judge countered that her lack of prior presence did not prove she would be unsafe. The judge noted that Ecuador faces escalating organized crime, a sharp increase in homicides, and a rise in femicide. The judge added that Ecuador's strained asylum system cannot guarantee protection for someone without legal status, income, or local ties. The court ordered her deported to Ecuador before considering why she fled Guatemala.

The researchers documented a similar sequence in Miami. A Nicaraguan man appeared for a preliminary hearing. A Department of Homeland Security attorney moved to dismiss his case. The judge granted the motion. Immigration and Customs Enforcement agents waiting in the hallway arrested him immediately. The researchers did not know the specific basis of his asylum claim. They noted that Nicaragua has recently targeted political dissidents, democracy activists, and Catholics with growing brutality. The man was sent to detention and possibly to a country where he has never been. His claim was never heard.

Judges in these courts have expressed concern about their changing roles. Some are former Department of Homeland Security prosecutors appointed during the first Trump administration. In informal conversations, these judges lamented that people appear before them without understanding the process or having a practical chance to present their cases. The researchers observed judges sighing and grumbling as they administered what they viewed as predetermined removal decisions rather than weighing protection claims independently.

Public access to these proceedings is shrinking. Immigration courts are generally open to the public, allowing researchers and observers to document proceedings. Recently, hearings have moved to unmarked office buildings far from official court sites. These locations are not open to attorneys or observers. The researchers described these as clandestine courts. They represent a strategy to make the legal process harder to access and understand. The shift limits the ability of the public and legal experts to monitor the administration of due process.

Congress holds the authority to change immigration adjudication. It ceded this power to the Department of Justice and can take it back. The researchers suggest Congress establish an independent court and create a public defender program for people facing removal. They also recommend providing a hearing opportunity for those whose cases ended without a full review. The Supreme Court may eventually decide the legality of these practices. Congress can act independently to ensure that individuals challenging deportation have a meaningful opportunity to be heard by an independent decisionmaker.