Bearing Witness in the Moment: Report from the Immigration Court Observation Project explores how inviting the public inside the workings of the deportation infrastructure can call into question the workings of that system. The deficiencies noted by observers point to fundamental failures of U.S. immigration laws, policies, and practices to meet internationally recognized human rights standards.
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The Immigration Court Observation Project draws on the international human rights practice of trial monitoring to identify and bring visibility to systemic human rights violations arising in the context of civil immigration enforcement. The project began in April 2017 following the first Muslim ban, seeking to harness some of the energy that erupted at airports in protest and direct it toward what was anticipated to be a volatile environment for detained people facing deportation.
The project brings observers from the public into the Fort Snelling Immigration Court in Minnesota to observe and document immigration hearings of people who are currently held in Immigration and Customs Enforcement (ICE) detention. The hope was that observers could provide a bird’s eye view of emerging trends and problems. But when members of the public began observing detained removal hearings, many questioned the everyday practices and assumptions upon which the deportation system rests.
Observers reflected on their notions of justice and due process. They reported a significant disconnect between these concepts and what they observe while monitoring immigration court hearings. Observers questioned the fairness of many of the fundamental premises of the immigration system itself. Many were troubled by the consequences of a technical distinction between “criminal” and “civil” proceedings, which results in significantly more limited procedural protections to people facing deportation than those charged with criminal offenses. They identified serious barriers to justice that undermine the fairness of proceedings which result in the expulsion of hundreds of thousands of people from the United States each year. They noted the overwhelmingly disproportionate impact of immigration enforcement on Black, Latinx, and Asian refugees and immigrants and the way in which racist criminal policing and prosecution practices magnify who ends up detained by ICE. They felt the coercive power of detention on people’s ability to pursue their cases. Observers questioned the legitimacy of a system where laws appeared unable to do justice, even when procedures were followed.
Immigration court observers were clear that immigration policy must meet international human rights standards by doing justice, operating fairly, being free from discrimination, and supporting human dignity. Observers pointed to several areas of particular concern, including: absence of meaningful defenses to deportation or avenues to move into lawful status; lack of access to counsel, failure to ensure understanding of and access to the process, and use of detention to effectively coerce abandonment of legal options; disproportionate consequences of criminal or administrative violations and amplification of the effects of racism in policing on immigrant and refugee communities; and degrading treatment, including use of shackling and prison attire.
The Immigration Court Observation Project is a collaboration between The Advocates for Human Rights, the James H. Binger Center for New Americans at the University of Minnesota Law School, and Robins Kaplan LLP in Minnesota. This report is the result of research conducted and analyzed by The Advocates, which is solely responsible for its contents, conclusions, and any errors.