Aliens have a due process right to a fair hearing in Immigration Court.  At what point is that due process right violated when the alien (or her attorney) is unable to communicate with the Court or the DHS attorney?

It is a common scenario for the attorney to contact DHS counsel for a pre-trial conference.  The purpose of this communication is to narrow the issues and learn about DHS’s position in the case.  More often than not, messages left for DHS counsel are not returned.  The DHS attorneys usually have an explanation for failing to return calls—they are too busy or they are not responsible for that particular case.  But the inability to speak with government counsel prior to trial often has real-life consequences for aliens in Immigration Court.

For example, I recently had a Nepalese asylum case remanded by the BIA.  The Board found that my client had suffered past persecution based on a protected ground, and remanded the case to determine whether DHS had any evidence to rebut the presumption that my client faces a well-founded fear of future persecution.  It was pretty obvious that DHS would not rebut the presumption, and the IJ could grant asylum (the IJ said as much himself in court).  Unfortunately, several calls to DHS went unreturned, and when we got to Court, the DHS attorney was unable to state the government’s position.  The result: The case is delayed for several months so DHS can decide what to do.

We face similar problems when attempting to communicate with the Immigration Court.  A recent example of this for me was when the Court rescheduled one of my cases to a date when I was unavailable.  I promptly filed a motion to reschedule, but there was no response.  I called the Court numerous times.  Sometimes, the phone just rang with no answer.  Other times, I left messages that were not returned.  A few times, I actually spoke to someone, but those people were unable to help (they told me that the Judge had the motion but had not yet made a decision).  In the end, I had to send the client to Court without me.  The Judge was angry and blamed me.  He threatened that if I was not in Court the next time, the case would go forward without me.  In the end, he rescheduled the case.  But my inability to communicate with the Court almost caused my client to lose her right to an attorney.

The obvious solution is for DHS attorneys and court employees to return our phone calls.  But I know it is not that simple.  Case loads are oppressive, and I imagine the government workers receive many phone calls and messages.  There is very little time to return calls.  (Not to let government workers off too easy—I also receive many phone calls and have a busy schedule, but I return all my calls).

Aside from hiring more employees (not gonna happen), I am not sure how to make this better.  Perhaps there could be a dedicated email address, which we could use to communicate with the Court or DHS.  The email could be screened by an employee and priority issues could be forwarded to the appropriate party.  Or maybe there could be AILA/immigration lawyer volunteers who act as liaisons to DHS or the Court.  For the time being, though, we are left to call repeatedly and hope we reach someone.