Immigration Judges Deny Asylum Claims Without Hearings

U.S. immigration courts have long operated under strict rules that make winning asylum difficult. Recent observations suggest a shift in procedure is allowing the government to remove people without a judge ever hearing the merits of their case.

The authors of a new book, Dismantling Due Process: The Rise of Procedural Removal in U.S. Immigration Courts, documented these changes over the past year. They observed more than 3,500 asylum hearings in 107 courtrooms across 13 states and Puerto Rico. The research identifies a pattern of procedural removal, where individuals are ordered deported without a full hearing.

The primary mechanism for this early denial is a process called pretermission. Under this directive, an immigration judge decides from preliminary filings that a person is ineligible for relief. This decision occurs before any testimony, evidence, or opportunity for the respondent to respond. The government effectively adjudicates the claim by finding a procedural way around it rather than weighing the facts.

Third-country agreements represent one stark application of pretermission. In a Santa Ana courtroom, a Guatemalan asylum seeker was questioned about her safety in Ecuador or Uganda. She stated, "I've never been there," and "I don't know anyone there. Who will help me?" The judge replied that because she had never been to those locations, she could not know if 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 also pointed out that the local asylum system cannot guarantee protection for someone without legal status, income, or ties. The woman was ordered deported to Ecuador before the court considered why she fled Guatemala.

In Miami, a Nicaraguan man appeared for a preliminary hearing similar to an arraignment. A Department of Homeland Security attorney moved to dismiss his case, and the judge granted the motion. Immigration and Customs Enforcement agents waiting in the hallway arrested him immediately. The researchers noted that Nicaragua has targeted political dissidents, democracy activists, and Catholics with growing brutality in recent years. The man was sent to detention and possibly to a country he had never visited, without his claim being heard.

The authors observed that judges, including former DHS prosecutors appointed during Trump's first administration, often expressed frustration. In informal conversations, these judges lamented that people appeared before them without understanding what would happen or having a practical chance to present their cases. The judges described being reduced to administering predetermined removal decisions rather than weighing protection claims.

The authors also noted a change in where hearings take place. Immigration courts are generally open to the public, but recently some hearings have moved to unmarked office buildings far from public view. These locations do not allow attorneys or observers to enter. The authors described these clandestine courts as a strategy to make the legal process harder to access and observe.

Amelia Frank-Vitale and Lauren Heidbrink wrote the book based on these observations. They argue that Congress ceded immigration adjudication authority to the Department of Justice and can take it back. They recommend Congress establish an independent court, create a public defender program for people facing removal, and provide opportunities for those whose cases were ended without a full hearing to have their claims heard. The Supreme Court may ultimately decide if these practices are lawful, but Congress does not need to wait for that decision.