Demonstrators protest outside the US Citizenship and Immigration Service office in Miami, on February 20, 2021, demanding that the administration of US President Joe Biden cease deporting Haitian immigrants back to Haiti.
A suite of new deportation rules issued by the Biden administration’s U.S. Department of Justice (DOJ) has immigration advocates and attorneys outraged due to a decrease in transparency and increase in potential punishment.
On Feb. 24, the DOJ’s Executive Office for Immigration Review (EOIR) issued revised terms and conditions for use of the online EOIR Courts & Appeals System (ECAS). The administration’s issuance of the new rules did not garner a press release or other form of announcement.
The rules contain stringent guidelines on immigration law practitioners aiming to keep their clients from being deported. Simultaneously, however, the government is given broad flexibility, leeway and the ability to punish lawyers for various infractions.
Going forward, all ECAS users must agree to use the system for each and every case where the technology could feasibly be used.
From the new rules:
The user acknowledges the following and agrees to:
Participate in electronic filing through ECAS for all cases that begin after the ECAS rollout date in participating court locations or the [Board of Immigration Appeals]. Selection of only specific cases for electronic filing after the ECAS rollout date in a participating court location or the BIA is prohibited (i.e., use of electronic filing for some cases and continuing to file paper documents for others).
A separate section says that EOIR reserves the right to “remove a particular case from electronic filing” at their leisure. In other words, the government can take a case off the ECAS system without a stated reason. Immigration law practitioners cannot do the same—even if there is an arguable reason for them to do so.
Immigration attorney and legal expert Matthew Hoppock took note of the apparently discordant new rules via Twitter.
“EOIR’s new ECAS terms of service: users have to promise to use e-filing on every case where it’s available, no exceptions,” he noted. “But EOIR reserves the right to ‘remove a particular case from electronic filing’ without explanation. Sounds fair.”
The new terms and conditions also pose potential timeline problems for immigrants facing deportation—due to the plenary power the rules grant to courts at the expense of attorneys.
Also, a clerk determines if the documents are “filed” and added to the eRop, but judges still have discretion *afterward* to “reject” such filings. Oh, and if it’s “rejected” then it’s as if it was never filed to begin with. Sounds cool. pic.twitter.com/1OiX9CjyjG
— Matthew Hoppock (@MatthewHoppock) March 1, 2021
The American Immigration Council is one of the leading pro-immigration policy, litigation and advocacy organizations in the country. The group’s lead Policy Counsel Aaron Reichlin-Melnick slammed EOIR’s new rules as an attack on transparency.
“Ah yes, the hallmarks of a functioning system of due process for deportation; opaque terms and services where the government reserves the right to mess with how you use their systems with no warning,” he sarcastically mused via Twitter.
Hoppock also noted that the new EOIR rules contain provisions that allow the government to ban lawyers from using the system for “filing case-related documents” or for uploading “incorrect or inaccurate information.” Those terms, however, are not defined in the new rules.
Additionally, EOIR says they reserve the right to slap immigration lawyers with “criminal, civil, or administrative penalties” for any violations of the agency’s new rules.
Ooh, criminal penalties for not following the terms of service. This sounds inviting indeed. pic.twitter.com/gM2AfA9LkL
— Matthew Hoppock (@MatthewHoppock) March 1, 2021
Law&Crime reached out to EOIR for comment and clarification on this article. No response was forthcoming at the time of publication.
EOIR has been the subject of scandals in the recent past.
In March 2020, the agency was heavily criticized after ordering immigration judges to remove COVID-19 warning posters from courtrooms. After media reported on those decisions, confirmed via internal EOIR emails obtained by Law&Crime, the DOJ backtracked and stopped telling court staff to remove the posters.
In January of this year, Law&Crime reported that EOIR’s data tracking system had lost files related to over 600 separate asylum cases.
[image via CHANDAN KHANNA/AFP via Getty Images]
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