Fear of arrest driving some immigrants to skip court, advocates warn

Growing fears of detention at immigration court are driving some undocumented immigrants to consider skipping their hearings, immigration advocates say, raising alarms that confusion and anxiety over stepped-up enforcement are deterring lawful participation in the legal process.

Attorneys warn that unrepresented individuals are especially vulnerable, as concern spreads about arrests at courthouses and how best to respond if detained.

"If I am representing them, I would appear for the hearing on their behalf and if the court insisted that the client appear in person, I would go with them to protect their interests," said David E. Stanley of Reed Smith LLP in Los Angeles. "Those that are not represented by immigration lawyers are the most at risk."

Stanley has a pro bono practice representing undocumented immigrants trying to obtain legal status, most of whom do not speak English, he said in an email on Thursday.

"All of my clients with pending applications have expressed concern and asked for my advice about what to do," he said.

While Stanley doesn't currently have clients with pending court hearings, he said he is advising clients with applications pending before U.S. Citizenship and Immigration Services to keep his information on hand.

"I tell them to keep my business card handy and if they are detained, to ask ICE officers to contact me," he said. "I have some clients who have been advised by USCIS in writing that they meet the standards for approval of status but need to wait because the government has established quotes for how many applications can be approved in a single year. For those clients, I tell them to keep a copy of the USCIS letter and my business card with them."

Edith A. Nazarian, a sole practitioner in Woodland Hills, said more clients are requesting the opportunity to appear remotely due to concerns about potential arrest.

"The problem is, if you don't go to immigration court, you could face a removal order if you are required to go in person," she said in a phone call on Thursday. "Sometimes I have clients asking for a motion, if they have an in-person trial and they may be facing removal, they may ask to request the case be heard via Webex so they don't have to go in person."

Haitham S. Ballout of Ballou Law in San Mateo urged strongly against letting clients miss court hearings, noting that the decision to terminate a case and allow arrest rests with the judge.

"An in-absentia order of removal will be entered for failure to appear," Ballout said in an email on Thursday. "I would not recommend it. Clients who have been in the U.S. less than two years are at most risk, but a few steps must be taken by ICE attorneys to create this risk, i.e. file a motion to terminate with the immigration judge and have the motion approved, and then ICE can detain. Not all judges agree to terminate! That is where the news of detention at immigration courts comes from."

Attempts to postpone may not have a strong chance of succeeding, said Jean L. Reisz, co-director of the USC Gould School of Law's Immigration Clinic.

"It will be very difficult to postpone a hearing because you need to have good cause to continue a hearing and file a motion in advance, and the immigration judge ultimately rules on whether someone can continue a hearing or not," Reisz said in an email on Thursday. "Being afraid of enforcement actions is likely not going to be considered good cause, and the immigration judge will probably deny the request."

"The government is putting noncitizens in between a rock and a hard place," Reisz continued. "They must attend their court dates, but by doing the right thing, they may be detained. If they do not attend their proceedings, they will likely be ordered removed in absentia and have a removal order that can be executed without any further due process."

While Reisz said she has not had any clients fail to show up for court dates, she said she is "aware of immigrants, especially those who are not represented by attorneys, considering or making the decision not to attend court because they are afraid."

"A lot of immigrants are concerned about going to court, whether for their own case or for their loved ones, because of the risk of being arrested," she added.

By not attending court, she said, applicants with a clear view to asylum risk jeopardizing that chance.

"The government's policy of arresting people in immigration court is incentivizing immigrants to try to hide or disappear instead of complying with immigration laws," she said. "Many immigrants may have strong cases or be eligible for asylum or other kinds of protection against harm in their countries.  By not going to court, they will be abandoning their cases and be ordered removed. Ultimately, that makes it easier for the government to remove them."

A spokesperson for U.S.. Immigration and Customs Enforcment could not be reached immediately for comment.