Motions to Recalendar and Self Deportation Flyers: How the Trump Administration is Streamlining Deportations through the EOIR
The Trump administration has made clear its intent to increase deportations and encourage those in the United States without status to leave. Since President Trump’s inauguration, his administration has deployed multiple tactics to increase immigration enforcement.
During April and May, the Trump administration’s latest tactic is to mobilize various federal agencies to seemingly increase and/or incentivize deportation through the immigration courts. The Executive Office for Immigration Review (“EOIR”), a subagency of the Department of Justice (“DOJ”), currently controls the functions and personnel of immigration courts.
Among these acts are the distribution of self-deportation flyers and potential recalendering of administratively closed removal cases.
Noncitizens, attorneys, and advocates alike should pay close attention to the allegedly incentivizing acts of the Trump administration as they may lead a noncitizen to unknowingly make a detrimental decision. Noncitizens should consult with an attorney before making any decision to self-deport as there may be repercussions on the noncitizens ability to immigrate to the United States in the future. Attorneys should prepare to respond rapidly to a case being recalendared or adequately inform a noncitizen on the consequences of self-deporting.
Administratively Closed Cases in Immigration Court.
Administrative closure is a mechanism by which an immigration judge temporarily removes a case from their active calendar. When deciding whether to administratively close a case, an immigration judge must look to the totality of the circumstances. A case may be administratively closed for various reasons, including:
- A case is a low enforcement priority for Department of Homeland Security (“DHS”)
- The noncitizen has another form of immigration relief that will take time to materialize
- The individual must file an application or petition with another federal agency
Any party can seek to put an administratively closed case back on the judge’s calendar.
While many may refer to DHS’s acts as “reopening” the cases, the proper term is recalendaring as the case was never concluded. To successfully recalendar the case, DHS must present the following to the immigration judge:
- The date and the reason why the case was administratively closed;
- A copy of the order; and
- Reasons for the recalendar.
While an immigration judge can deny a motion to recalendar they must provide the unusual, clearly identified, and supported reasons for the denial. Therefore, a noncitizen opposing a motion to recalendar will have to present compelling reasons for the judge to keep the case administratively closed.
Possible Consequences of Mass Recalendaring
Mass recalendaring of administratively closed cases will have wide-reaching consequences on the immigration court system and the noncitizens in removal proceedings.
If DHS’s attempt to recalendar cases nationwide is successful, this will significantly increase the nearly 3.7 million case backlogs at the immigration courts. Not only will courts have to manage pending cases and new cases, they will now also have to consider the cases DHS wishes to needlessly recalendar. This additional burden on the courts poses a risk to all noncitizens as it could lead to delays in adjudicating their case—possibly making them ineligible for relief in some cases—or could make noncitizens desperate and more likely to seek self-deportation.
A noncitizen whose case is recalendared will have to quickly hire counsel to oppose the recalendaring or assist with the merits of the case. Demonstrating eligibility for immigration relief may be challenging for noncitizens if their applications are still pending with other agencies or if their priority dates are not current.
Finally, a noncitizen is obligated to maintain an updated address with the immigration court and failure to do so could lead to hearing notices being lost or sent to an old address. If a noncitizen misses their hearing date, they could be ordered removed for failing to appear. It is therefore important for noncitizens in removal proceedings to meet the requirements and update their address.
What Are Self-Deportation Flyers?
In alignment with DHS’s nationwide ads instructing noncitizens to self-deport, the EOIR has posted self-deportation flyers in the waiting areas of immigration courts. Further, immigration judges have been reported to provide respondents (immigrants in deportation proceedings) the self-deportation flyers.
Most troubling are the misleading statements in the flyers. The administration has continually stated to noncitizens that self-deportation could allow them to return legally to the United States. Similarly misleading, the flyer states that individuals who do not self-deport will be barred from reentering the United States. Both of these statements are broad generalizations that are inaccurate for many noncitizens.
Further, the flyers attempt to use financial resources as an incentive to self-deport. According to the flyer, a noncitizen may be able to receive a subsidized flight and will be able to keep money earned in the United States. It is unclear who will be subsidizing these flights or how the DOJ will guarantee noncitizens can keep their money.
The English and Spanish flyers include a QR code that when scanned, directs an individual to the CBP Home app, administered by Customs and Border Patrol—a subagency of the Department of Homeland Security. Various sources report that thousands of immigrants have used the CBP Home app to report they were leaving the country as a form of self-deportation.
The use of ads and flyers may lead to an increase in self-deportation and have detrimental consequences on noncitizens and their family’s residence in the United States.
Legal Concerns and Procedural Fairness
Immigration attorneys and immigrant rights groups alike should be concerned with the overly generalized statements in the flyers. The flyers do not provide an entire analysis of immigration laws nor address individual situations. The claims that immigrants who chose to self deport will have future opportunity for legal immigration to the United States is inaccurate as it does not account for factors such as unlawful presence, criminal history, or other possible grounds of inadmissibility.
Additionally, the seeming cooperation between DHS and DOJ can raise due process issues. Immigrants in removal/deportation proceedings have a due process right to receive a full and fair hearing. The self-deportation flyers, bearing the DOJ’s logo but directing noncitizens to the DHS’s CBP Home app, calls into question whether the courts are crossing into a prosecutorial role instead of a neutral adjudicator role.
Further, the self-deportation flyer is currently in English and Spanish only. While English and Spanish are consistently the most spoken languages by immigrants, they certainly do not encompass the myriads of languages spoken by immigrants throughout the United States or in removal proceedings. For noncitizens with limited English capabilities, the self-deportation flyers pose a greater risk for misinformed decision making.
Finally, unrepresented or low-income immigrants are likely much more susceptible to the self-deportation option as without legal counsel available, they might rely solely on the information on the flyer.
How to Respond If You Receive Notice Your Case was Recalendared or Receive a Self-Deportation Flyer
Noncitizens who have either received a notice from the immigration court that their case has been recalendared or are considering self-deportation should immediately seek legal advice from an experienced immigration attorney.
If a case is recalendared, a noncitizen may request the immigration court administratively close their case again or may present an application for relief to the immigration court. What a noncitizen qualifies for depends on their specific facts, making it essential to consult with an attorney and not rely on general information.
Additionally, a noncitizen should be fully aware of the consequences of self-deporting before taking an action towards self-deportation. In some cases, even an individual with no removal order will be barred from returning to the UnitedStates. for a period of 5 years, 10 years, or even permanently. Therefore, a noncitizen should consult with an attorney regarding their specific situation to determine if self-deportation is advisable.
Conclusion
DHS has released nationwide ads encouraging undocumented immigrants to self-deport. Similar “self-deportation” flyers have been posted in immigration courts across the country and even provided by judges to individuals in removal proceedings. Now, there are reports that DHS will start seeking to recalendar cases that were administratively closed before the EOIR. This will increase the number of noncitizens actively at risk for deportation.
Noncitizens should always remember they have a right to an attorney and due process. Noncitizens facing the challenges described in the article should consult with an attorney before making any decisions regarding self-deportation or recalendared immigration proceedings as uninformed actions or missed deadlines may hurt the noncitizen’s ability to immigrate to the United States in the future.
