Undocumented Immigrants May Get Less Time to Make Their Case

When Jonas De La Luz Jeronimo was picked up by the feds in North Carolina, his lawyer knew he needed to get to Jeronimo’s 4-year-old daughter. Jeronimo, an undocumented immigrant from Mexico, had four traffic violations on his record in the United States, where he had lived for more than 10 years. To keep Jeronimo in the country, his defense would need to prove that deporting him would cause his U.S. citizen daughter to suffer “exceptional and extremely unusual hardship.” But Jeronimo was in the middle of a custody battle with the girl’s mother, who wouldn’t allow his lawyer any contact with the child.

“We had no access,” says Jeremy McKinney, head of the law firm representing Jeronimo. “We couldn’t prepare a case.”

Jeffrey Widdison, Jeronimo’s defense attorney at McKinney Immigration Law, had just 39 days to prepare for the hearing. So he made a common request, asking the judge for what’s known as a continuance—a routine delay in the court proceedings. It slows the justice system down a little, but helps ensure both sides can make their best cases in court.

Three days before the August 14 court date, the judge effectively denied the continuance, telling Widdison he needed to appear in court on Monday. (He then officially denied the delay in person on the 14th.) Widdison hurriedly texted McKinney asking how he could prove hardship on a child that he had never met and whose records he had never seen. “Find any material you can on the effect of separation under these circumstances, expert materials out there, frankly on the Internet,” McKinney says he advised his colleague, grimly preparing for the outcome of Jeronimo’s petition to stay in the country. “No doubt it’ll be denied.”

Under new guidance from the Trump Administration, immigration lawyers may be scrambling with less preparation time more often. On July 31, the Justice Department issued a memorandum to all immigration judges in the United States urging them to grant fewer continuances. “The delays caused by granting multiple and lengthy continuances, when multiplied across the entire immigration court system, exacerbate already crowded immigration dockets,” the letter from Chief Immigration Judge MaryBeth Keller reads. “Immigration Judges should not routinely or automatically grant continuances absent a showing of good cause or a clear case law basis.”

The midsummer guidance seeks to address a real problem in immigration courts: a massive backlog of cases. Since 2011, the number of pending immigration cases has doubled to more than 600,000, bogging down lawyers and miring immigrants in an average of nearly two years of uncertainty before their fate is decided, according to TRAC Immigration. The granting of continuances rose 23% between FY 2006 and FY 2015, according to the Justice Department, exacerbating these wait times. “This DOJ is committed to fighting the backlog by increasing productivity without compromising due process,” says Justice spokesman Devin O’Malley. “This guidance protects due process while reminding immigration judges of the effects that inappropriate continuances have on the efficient completion of cases.”

The president and attorney general have vowed to crack down on illegal immigration, and the new directive could help move cases through the system at a faster clip. Most immigration lawyers agree that the overloaded courts are a major issue. But they fear the end result will be more deportations as judges use the wide discretion afforded to them to curtail continuances. The Immigration and Nationality Act doesn’t establish a right to a continuance in immigration proceedings, Keller’s letter notes. They’re largely governed by a federal regulation which says that an “immigration judge may grant a motion for continuance for good cause shown.”

Immigration lawyers often rely heavily on continuances for their prep work because immigration law grants limited formal discovery rights. Unlike in criminal cases, in which the prosecution is generally required to turn over evidence to the defense, immigration lawyers often have to file a Freedom of Information Act request to find out what the government has on their client. These can take months to process.

“If their priority is speed, we all know that sounds really good, to be more efficient, but usually due process takes a hit when your focus is efficiency,” says Andrew Nietor, an immigration attorney based in San Diego. “By the time we are able to connect with our clients, that first court appearance might be the day after we meet somebody, so we haven’t had the opportunity to do the investigation and do the research. And up until several months ago, it was standard to give immigration attorneys at least one continuance for what they call attorney preparation. Now it’s not standard anymore.”

The Justice Department’s guidance says that “the appropriate use of continuances serves to protect due process, which Immigration Judges must safeguard above all,” and notes that “it remains general policy that at least one continuance should be granted” for immigrants to obtain legal counsel.

But the memo is more skeptical about continuances for attorney preparation. “Although continuances to allow recently retained counsel to become familiar with a case prior to the scheduling of an individual merits hearing are common,” it says, “subsequent requests for preparation time should be reviewed carefully.”

It remains to be seen if this careful review will streamline the ponderous system or add another difficulty for the harried lawyers and hundreds of thousands of immigrants trying to work their way through it. For Jeronimo, it may have been decisive. In mid-August, the judge found that the defense didn’t adequately prove Jeronimo’s deportation would harm his young daughter and gave him 45 days to voluntarily leave the United States. Now Jeronimo must decide whether to appeal his case. But he’s been held in a detention center in Georgia since March, and his lawyers worry that he has lost hope. He may soon be headed back to Mexico, five months after he was picked up at a traffic stop in North Carolina.