Advocating for Due Process

Last week the U.S. Department of Justice issued a memo instructing immigration judges to deny some asylum cases without a hearing if the judge determines that an asylum application is incomplete or “legally deficient.” This means that an immigration judge could deny asylum because they are not satisfied with the thoroughness of the applicant's answer to a question on the application. Or the immigration judge may determine that an unanswered question or unchecked box makes the whole application incomplete, and therefore deny asylum. The new guidance is broad and deeply undermines basic fairness and due process for asylum applicants, and it will harm the most vulnerable and under-resourced asylum-seekers, including children and teens seeking asylum on their own.

One of the first steps asylum-seekers must take is to complete and file their asylum application with the immigration judge assigned to their case. Many asylum-seekers, unable to find or afford legal representation, complete and file their applications on their own. Many don’t speak, write or read English, and so they do the best they can to fill out the 12-page application, maybe using Google translate or with the help of a friend. The result is that an asylum-seeker who is fleeing imminent harm and persecution in her home country will submit an asylum application that doesn’t fully articulate her story and or include the most important details that form the legal basis of her asylum claim.

The hope is that an asylum applicant will eventually find an attorney to help her in advance of her final court hearing, an opportunity to testify before the immigration judge about what happened in her home country and why she is afraid to return. Even if an asylum applicant is not able to find representation, she still has the chance to tell her story to an immigration judge before a decision is made on her case.  

However, the new guidance means asylum applicants may begin to lose this critical opportunity to testify before an immigration judge at a final asylum hearing. Since the memo is guidance and not mandatory, we hope immigration judges will continue to give all asylum applicants the opportunity for their case to be heard in a hearing, especially those who don’t have representation but were obviously doing the very best they could by applying on their own.

Legal representation is more critical than ever for immigrants seeking asylum. RILA continues to advocate for protection and justice for our clients, assisting them both with applying for asylum and representing them in court. And with your support, we will continue to create space and capacity to respond to this need for our most vulnerable immigrant neighbors. Thank you for partnering with us!