Biden officials promised Boston’s special immigration program would be fast, but fair. Advocates say it fails at both.
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When the Biden administration announced in July 2021 a new immigration court program in Boston, top officials promised it would make asylum cases faster and fairer for migrant families.
Two years later, those promises are far from being fulfilled, according to local advocates and a new report from an immigration clinic at Harvard Law School that provides the first detailed review of the expedited operation, called the “Dedicated Docket.”
Migrants assigned to Boston’s fast-track program are more likely to be ordered deported, less likely to be represented by an attorney, and less likely to prevail in an asylum case compared to those who are funneled into Boston’s regular immigration court, the report found. A key problem, the report concluded, is that migrants assigned to the new program struggle to secure legal representation within an expedited timeline of 300 days to have their cases decided.
What’s more, only a fraction of cases were completed quickly — fewer than 4,000 out of 20,000 cases examined by the Harvard Immigration and Refugee Clinical Program. And the vast majority of those completed cases either ended in a deportation order or were dismissed because prosecutors failed to file necessary paperwork, leaving the migrants in an undocumented limbo, the report said.
“The administration has now had two years to make good on its promise of a Dedicated Docket that delivers both efficient and fair proceedings to families seeking asylum. It has failed to do so,” advocates, including the authors of the Harvard report, wrote in a draft letter to the Biden administration shared with the Globe.
Kathryn Mattingly, a spokesperson for the Department of Justice’s Executive Office for Immigration Review, which oversees the docket, did not say whether the program is achieving the administration’s goals. She noted that the 300-day timeframe is an “internal goal rather than a hard deadline” and that “judges routinely grant continuances for good cause, including for respondents to seek representation.”
The Dedicated Docket in Boston is one of 11 fast-tracked immigration programs set up by the Biden administration in major cities. It is also the country’s biggest, with between 13,000 and 19,000 pending cases as of January (the federal government and the report’s authors, who analyzed federal government data, disagree on the total number).
The docket flips the usual order of immigration court proceedings on its head.
Under regular circumstances, new deportation cases go to the back of the line and are scheduled based on judges’ availability, with cases already in progress getting first priority. But the dedicated docket bypasses that process, prioritizing the newly arriving families with the goal of closing their cases quickly, and sending a signal to would-be migrants that entering the United States without authorization won’t guarantee a long stay in the country as an asylum case wends through the courts.
Migrant advocates have long warned, though, that such a speedy system risks rushing migrants through life-altering legal proceedings before they can find lawyers and prepare their asylum claims.
For years, advocates for migrants decried similar programs implemented by Presidents Barack Obama and Donald Trump, saying they are unfair to asylum-seekers and ineffectual at reducing the country’s huge backlog of immigration cases.
The Harvard report is based on data obtained from the Department of Justice through Freedom of Information Act requests, interviews with local lawyers and aid groups, and dozens of hours of observations of hearings. The data were collected and analyzed by TRAC, a research institute at Syracuse University focused on immigration.
One issue emphasized in the report and by immigration attorneys, is that many migrant families end up on the Dedicated Docket without realizing it. Notices to appear for court hearings were often sent to outdated addresses, or not at all, the report found. Then, when migrants failed to appear for hearings, judges sometimes ordered them removed from the country.
The report documents 1,177 of these in absentia deportation orders during the first year of the expedited process.
One was for the family of Luis Toaquiza, who came to the United States from Ecuador with his pregnant wife and toddler son. After getting confused about his immigration case, Toaquiza said, he hired a lawyer.
When the lawyer, Enrique Mesa, looked up Toaquiza’s case number this spring, he found the family had been transferred to the Dedicated Docket and the notice of the change had been sent to an old address.
By then, Toaquiza had missed his hearing and a judge had ordered him and his family deported.
“I had a piece of paper that said May 22,” Toaquiza said, referring to the first hearing notice the government gave him, before transferring his family’s case to the Dedicated Docket. “I brought that paper to Attorney Mesa and he said my hearing had already happened, in March.”
Mesa managed to reopen the case, he said, and is now pursuing an asylum claim for the family, which he expects will take years.
The Biden administration said it chose Boston for a Dedicated Docket because of the area’s “established communities of legal service providers.”
But in a letter sent to the Justice Department in June 2021 advocates said the plan was based on a “faulty assumption” that legal aid was plentiful in Boston and the other chosen cities — a critique that advocates echo to this day.
“Legal aid nonprofits that provide no-fee representation are extremely overwhelmed,” Annelise Araujo, a Boston immigration attorney, said this week. “They are inundated with requests and they don’t have the funding or manpower to take them all on.”
Dedicated Docket cases are heard at the John F. Kennedy Federal Building, a concrete tower overlooking Boston City Hall.
On Tuesday, the waiting room outside one Dedicated Docket courtroom overflowed into a hallway with migrant families chatting, mostly in Portuguese, many holding small children on their laps. Inside the courtroom, a clerk handed two families from Brazil packets of paper, including a few pages listing, in English, nine legal aid nonprofits.
“This is a list of attorneys that can help you for little or no money,” Judge Michelle C. Kahan told the families through an interpreter.
But if the families called the groups, they would find that Kahan’s advice was perhaps too optimistic. When a reporter called the nine listed phone numbers, six led to recorded messages saying the groups were “not accepting new cases at this time” or “have very limited capacity to accept new clients.”
Another group, the De Novo Center for Justice and Healing in Cambridge, appeared to be more open to new clients: Five spots every two weeks, said Valerie Fisk, the nonprofit’s immigration supervisor.
“But that doesn’t necessarily mean we’re going to represent the people,” Fisk said. “We’re really on a limited basis.”
Mattingly, the government spokesperson, said the legal aid groups had volunteered to appear on the court’s list and that the immigration review office “does not control … to what extent they provide services.”
The Harvard report found that migrants who did not have legal representation fared significantly worse than those who did. During the first year of the Dedicated Docket, a mere 205 applications for asylum were approved. All had a lawyer, the report found. By contrast, 77 percent of migrants ordered deported in absentia did not have lawyers.
The Biden administration announced the expedited dockets in May 2021 as a surge of migrants crossing the US southern border was overwhelming detention facilities and the country’s already-burdened immigration courts.
Immigration experts said the courts’ ever-ballooning backlog — now more than 2 million cases — attracts additional migrants to the US because asylum-seekers are allowed to remain in the country while their cases drag on, often for years.
“That becomes the magnet,” said Muzaffar Chishti, senior fellow at the Migration Policy Institute, a think tank. “The only way to reduce the effect of the magnet is to reduce the backlog.”
Chishti said the Dedicated Docket was an attempt to do just that. But he doubted that its current approach was likely to achieve its goal.
Mesa, the lawyer representing the Toaquiza family, said the Dedicated Docket seems, in some ways, to be self-defeating. The speed does little, he said, to decrease the overall workload. And the inevitable appeals end up proceeding on the courts’ regular timeline, often taking three to five years to reach a conclusion.
One exchange he had with a Department of Homeland Security prosecutor seemed emblematic to him, Mesa said.
A judge had granted his client’s asylum claim, seemingly bringing to a speedy conclusion a case that could have been long and complicated. But then the prosecutor appealed the judge’s decision, Mesa recalled, setting up what is likely to be a years-long legal fight.
“That’s what really irks me,” Mesa said. “On one side you’re trying to get rid of these cases ASAP. But on the other side, it’s, ‘not so fast.’ How does this make any sense?”