The Board of Immigration Appeals issued a precedent decision that violates due process. The Board ruled that an asylum applicant, who misses his hearing because he missed a bus ride, can be removed. The immigrant was placed in the removal proceedings. The government used the procedures under the Migrant Protection Protocols in his case. In this post, I will discuss the Migrant Protection Protocols and discuss the ways this violates due process. The case is Matter of JJ Rodriguez, 27 I&N Dec. 762 (BIA 2020).
The Migrant Protection Protocols are protocols used by the United States government to keep asylum applicants in Mexico while awaiting their removal hearings. Immigrants usually are admitted into the United States to await their hearings. Under the program, these immigrants will remain in Mexico, where they will receive humanitarian aid until their final hearings.
Immigrants who seek admission without proper documentation and apply for asylum are subject to the program. The government will allegedly provide transportation to their hearings.
In this case, the immigrant was placed in removal proceedings. All indications show that he was not provided notice in Spanish. He was asked to appear at a checkpoint to be transported to his hearing. He missed the bus. The immigration judge entered an in absentia order of removal.
The Board of Immigration Appeals affirmed the decision. The Board reasoned that the Department of Homeland Security abided by the law when instituting the policy. The Board reasoned that since Mr. Rodriguez allegedly had notice of the hearing, then his failure to appear was the proper basis to issue the order in absentia.
However, the Board remanded the case to the immigration judge to determine whether the government can prove the charges.
First, I need to explain the reasons for the decision. Yes, I admit that the Board did not have the jurisdiction to rule on constitutional issues. I give them that. In my opinion, the regulations and the statute are ripe for an as-applied and facial challenge based on due process grounds.
Second, there has been litigation surrounding the Protocols. These cases have been put on hold until the Ninth Circuit and potentially the Supreme Court rules on their constitutionality.
Third, and the reason for the title of this post, the Protocols do in fact violate due process and other laws of the United States. the regulations violate the Refugee Convention and the Additional Protocol since they do not admit asylum applicants. This law was adopted by Congress. They also violate the United States Constitution since, as highlighted by amici briefs, they deprive these immigrants of access to counsel.
Lastly, and I would like to highlight this fact: what if the bus driver was sick on that day? What if an ICE officer did not like the way the immigrant looked? would the immigrant be able to argue that he was deprived of due process? Of course not, since they are outside the United States and can not appeal the subsequent in absentia orders.
I know we are living in very stressful times. The government website I liked to above is biased. It says that these immigrants do not show up to their hearings, which is incorrect. It says that they are a security risk, they are not.
The Board’s decision just adopts the government’s position without much analysis. I hope it will be appealed.