Think Immigration: Court Conundrum: Omaha Immigration Court Frequently Compromises Due Process Rights

Author: Kelly Shanahan, Attorney at Immigrant Legal Center + Refugee Empowerment Center, Lincoln.

A few minutes outside of downtown Omaha, across from an airport hotel and a Perkins restaurant, lies the Omaha Immigration Court, tucked inside an unassuming building.

One of the first times I entered this building, there was a family that had gotten in the security line a few people behind me. Mom, Dad, toddler, and infant. The toddler lost patience and started to scream. After around 10 seconds, the security officer who had been previously smiling snapped and yelled at the parents to shut their kid up.

It is safe to say that family did not have a pleasant trip to court that day, and while I don’t believe any trip to immigration court is easy, the behavior of the Omaha Immigration Court has raised concern.

In February of this year, the American Civil Liberties Union (ACLU) of Nebraska released a report titled, “Courting Disaster Rights at Risk in Omaha Immigration Court” which details the results of the organization's five-month long observation of Judges Alexandra R. Larsen and Abby L. Meyer during Master Calendar Hearings (MCHs). 534 MCHs were witnessed, and metrics were recorded. The information collected was then analyzed by the University of Nebraska-Lincoln Legal Decision-Making Lab.

Let’s take a look at the numbers.

3.9

The average MCH lasted just 3.9 minutes.

According to federal law and the Immigration Court Practice Manual, during that 3.9 minutes the judge is supposed to call the case for hearing, ask the respondent to pronounce their name, ask for the respondent’s preferred language, have the respondent name their attorney if they have one, advise them of all of their rights in immigration court, have the Department of Homeland Security (DHS) attorney describe all of the allegations against the respondent, have them deny or admit the allegations, concede or deny the charges, and ask them to designate a country of removability. If the respondent refuses to designate a country, then the DHS attorney names the country. Then the judge should ask if the respondent believes there are legal reasons they should not be deported. Lastly, the judge will set deadlines for evidence/form submission and schedule another MCH as a follow up or schedule an Individual Calendar Hearing to hear the full case.

Seems impossible, right? This is essentially the finding of the ACLU-NE report: given the 3.9-minute duration of the MCHs, it is doubtful that all of the above took place. Therefore, it is likely that due process is being denied.

18

The report found that Judges Larsen and Meyer advised noncitizens of their rights in only 18% of cases, that’s 93 out of the 529 observed hearings. In those 93 instances where noncitizens were informed of their rights, it was as a group rather than individually in 83% of cases. In these instances, the judges read the rights aloud before calling forward individual cases—and many noncitizens may have missed these notices due to language barriers or tardiness.

98

The Omaha Immigration Court did provide almost every one (98%) of the observed hearings with interpretation where the immigrant identified Spanish as their primary language.

However, the Court often failed to provide an interpreter for other languages. The report also revealed that for all of the observed hearings where an interpreter was not available, the judges failed to reschedule the hearing for this reason.

30, 94, 81

As the report emphasizes, attorney representation is one of the most reliable predictors of success in immigration court. At initial MCHs, the report found that only 30% of noncitizens were represented by an attorney. Fortunately, they obtained an attorney for 94% of observed non-initial MCHs.

Nevertheless, for immigrants who were unrepresented in court, 81% of them were seeking an attorney. But there are significant barriers to securing representation: pro-bono representation tends to have long waitlists and retaining a private attorney may be cost-prohibitive.

1 and 2

The report makes one recommendation for Nebraska communities and residents: advocate for and create programs that guarantee representation for immigrants in removal proceedings. Many cities, counties, and states have successfully created publicly funded deportation defense programs; please encourage your congressional delegation to develop a similar program in Nebraska.

The report also makes two recommendations to Congress that readers outside of Nebraska can help on. First, urge Congress to remove immigration courts from under the Department of Justice and establish an independent court under Article I of the Constitution. Second, encourage Congress to pass comprehensive immigration reform legislation to create improved and new pathways to citizenship for undocumented and stateless immigrants living in the United States.

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