The Rule of Law: A Visit to Immigration Court

In many cases, they are making their first appearance after being in the U.S. for years, and with careful pleadings and use of appeals, many know they can stay here for years to come. While headlines on Trump administration immigration tactics such as arrests and deportations dominate the headlines, the situation in court, where most of the final decisions will be made, is another the administration is trying to change.

“A surprising number of the aliens know how to work the system in an attempt to run out the clock on the Trump administration, by requesting serial continuances and filing frivolous or otherwise questionable appeals, and by motions to reopen,” said Andrew Arthur, a former immigration judge now with the Center for Immigration Studies, which opposes wide open immigration. “Some will be successful, but as the recent immigration court arrests indicate, the administration is attempting to limit those efforts.”

Recently, RealClearInvestigations observed days of immigration court proceedings to gain insight into the current state of a system with a backlog of more than 3.6 million people, according to the Transactional Records Access Clearinghouse, which tracks immigration court figures through monthly Freedom of Information Act requests. New Orleans is but one thread in a sprawling web of often obscure courts, stretching from Massachusetts to Washington and from Saipan to Puerto Rico. 

From a first appearance to an asylum hearing, the New Orleans courts seemed busy. This reflects the fact that historically, most immigrants to the U.S. follow their legal schedule, which begins with a “Notice to Appear” being issued to them either when they are apprehended at the border or subsequently after they have been paroled into the 48 contiguous states.

“It’s never been the case that people aren’t showing up en masse,” said Kevin A. Gregg, an immigration attorney in California who hosts the weekly Immigration Review podcast. “The numbers of those who show up has always been very high, especially among people who have been in the U.S. a very long time.”

Paradoxically, however, the Trump administration’s recent vow to push arrests of illegal immigrants to 3,000 a day, along with some changes it has made to how it handles court cases, could serve to make attendance less regular, according to Gregg and others critical of Trump’s push. As attorneys and court officials told RCI, “never underestimate the community,” meaning arrivals know the system from those who have gone through it before them. Now, if conventional wisdom says court appearances could lead to an earlier expulsion from the U.S., those here illegally will shy away.

“With immigration court specifically, ICE has been dismissing court proceedings in order to then immediately detain noncitizens and place them in expedited removal proceedings where they have far less rights and no eligibility for bond,” Gregg said. “Whether correct or not, many noncitizens will likely begin to view this as a trap, and may not show up to immigration court out of fear. I don’t condone not showing up, of course, but I believe it’s a possible foreseeable consequence of what ICE is doing right now.”

Already, the Trump administration’s aggressive approach has sparked litigation and civil disturbances, from a Milwaukee judge allegedly helping “alien respondents” escape criminal proceedings to the current riots in Los Angeles.

Facing the Bar

One late May morning, there were four New Orleans immigration courts operating, with a total of nearly 140 people on the docket, most of them first appearances. On this day, no-shows comprised a very small percentage of those on the “master calendars,” as the morning dockets are known. In Judge Joseph LaRocca’s courtroom, for instance, only five of the more than 30 respondents listed on the master calendar did not appear; they were quickly handled “in absentia” and deemed removable.

That same day, in Judge Alberto A. De Puy’s courtroom, as many as six languages were used. The court has a Spanish translator present at all times, but for other languages, interpreters on the East Coast join by phone. In the hearings RCI witnessed, these involved Arabic, Hindi, Hassaniyya, Turkish, and Konkani, reflecting a large percentage of Middle Eastern or Asian immigrants. Paperwork in the court’s small waiting room is available in seven languages, including Creole and Wolof, an African tongue.

De Puy’s master calendar hearing was a Zoom session with migrants at the federal detention center in Jena, La. There, men in dull gray scrubs sat in rows, while De Puy scrambled to find translators. This proceeding was further complicated by a protest outside the Jena facility, which has gained notoriety by holding the Columbia University graduate and Palestinian activist, Mahmoud Khalil, and other foreign nationals arrested by federal authorities since President Trump took office.

No one knows exactly how many people appear in U.S. immigration court each day – “that would be a great statistic, wouldn’t it?” said Susan Long, director of TRAC – but there are more than 700 U.S. immigration judges, whom the attorney general appoints to the administrative posts under the Justice Department’s Executive Office for Immigration Review. If somehow the New Orleans morning sessions RCI followed could be extended daily to each judge’s courtroom, perhaps a dent could be made in the backlog, which includes more than 2 million pending asylum cases, according to TRAC.

That’s a fanciful assumption, of course, and at first glance, the looming numbers seem daunting to the Trump administration’s goal of sharply reducing or clearing the dockets. Still, some experts see promising signs as the figures for illegal crossings plummet.

“The situation is improving,” Arthur said. “It’s as if Trump patched a hole in the side of a boat, and now he’s bailing out the water the boat took in.”

For all the hue and cry about due process protections that have captivated activists and the federal bench over the past four months, the migrants appearing in New Orleans displayed a savvy understanding of immigration law that allows the adjudication of the proceedings to stretch for years.

The respondents sat quietly in wooden pews, in some cases accompanied by children. Most were neatly dressed and with their hair carefully braided or combed. The children appeared to be something of a prop, as each time they appeared, the judge asked that they attend school instead of court. Even on a first appearance, many of the respondents seemed to have a good idea of what would happen.

Most master calendar cases involved a “notice to appear” (NTA), and few of those were recent. For example, most of the people RCI observed in court the morning of May 22 had received their NTAs a year and a half ago, in 2023, although a handful had received them as recently as last December.

Few of the immigrants had lawyers, which court observers called a wise move. If it was a first appearance, the judge asked if they wanted representation, noting that while the Sixth Amendment does not entitle them to an attorney, the court maintains a list of immigration attorneys that may offer their services at affordable rates or pro bono. Invariably, the person requested time to find a lawyer and thus received another court date – on these May days, that was set for seven months later in December.

For the others not requesting more time to find a lawyer, the judge rapidly read boilerplate language and determined that the person had entered the U.S. illegally and was subject to removal. At that point, the judge asked the respondent if they wanted to “designate a country for removal should removal become necessary.” Here, the respondent or their attorney invariably declined.

This is a well-understood delay tactic that often fails. Despite the lack of response, the judge quickly set a country for removal and moved to do the same for a removal hearing. The judges perused their computer screens, presumably for scheduling purposes, and in some cases then scheduled that hearing for 2029.

In other words, almost all the “alien respondents” were given a lot more time. It was not unusual to see people having six years or more in the U.S. between the day of their arrival and a removal proceeding.

“A Lot More Detention”

The legal process is different for those in detention, and attorneys and court officials told RCI that “there is a lot more detention” now under the Trump administration. Judge De Puy’s master calendar involved the detained men in Jena on one screen, with the occasional immigration lawyer cutting in from a separate office and a government lawyer from Immigration and Customs Enforcement’s Office of the Principal Legal Advisor appearing on yet another video screen.

De Puy gave those making a first appearance months to try to obtain counsel, but he was less forgiving of those who were making a second appearance and asked for more time after failing to obtain representation. Several men – all those appearing were men – requested more time, but De Puy did not grant it in the cases RCI observed. 

Some men requested “voluntary departure.” Arthur said this is a ploy that, in the past, allowed immigrants to melt into the interior, thereby delaying their cases, and the government lawyer seemed to have that in mind as he agreed to “voluntary departure” only “with safeguards,” which meant the men would remain in detention until their travel arrangements were made. Just how that might happen and when, given the migrant is responsible for them, was unclear.

There were other oddities. For example, De Puy twice asked a man from India, who entered the U.S. in December 2023, if he would like to “designate a country of removal.” After not answering the first time, he then replied, “I can’t go back to India.”

“The court is going to designate India as the country of removal,” De Puy said immediately, at which point the man said he would “like to go back to India” and requested “voluntary departure.”

Of those migrants held at Jena who appeared that morning, only those seeking voluntary departure seemed destined to leave the U.S. soon. 

The emphasis on detention is not the only major change the proceedings appeared to have under Trump, compared to when RCI first visited immigration court in 2022. Then, the government attorney would often offer what was dubbed “prosecutorial discretion.” 

This amounted to a “get out of court free” pass. The judge told the person receiving prosecutorial discretion, “You are free to go and live your life, and the government has no interest in removing you from the country.”

Prosecutorial Discretion

It’s not clear how many illegal immigrants benefited from the Biden-era prosecutorial discretion, as the Department of Homeland Security did not respond to questions about it in 2022 or now. Those who received it were in addition to the more than 2.8 million the Biden administration simply paroled into the country immediately, a novel twist to immigration law subsequently ruled illegal by federal judges.

Under Trump, a similar step is taken with a different tone. In some instances, the DHS lawyer announced the government was “dropping charges” as the person is “no longer an enforcement priority.” Doing so does not change the fact that these people have previously been ruled “removable,” and by dropping the charges, the Department of Homeland Security can arrest and deport the illegal immigrant.

That has led to arrests right outside of immigration courts from Boston to New Orleans and elsewhere. While Immigration and Customs Enforcement agents can’t be outside every courtroom every day, this emphatic new move is the very one that could lead immigrants to eschew court as word spreads in the community about what is happening.

Judge LaRocca seemed concerned about this development, which, like some of the novel twists to immigration law under the Biden administration, has sparked federal litigation. At one point, when the government suddenly moved to drop the charges, LaRocca asked the immigrant if they wanted to accept that arrangement, which would leave them “without status” and still eligible for removal, or if they wished to continue to a removal proceeding. The overarching message was that the U.S. may move to deport the person.

LaRocca warned the government to be up front about what this might mean for the respondent, saying he “had heard of cases where he walked out the door and was arrested.”

Although the administration has endured criticism over the lack of due process for migrants deported on planes to El Salvador, judges in New Orleans unfailingly made clear to those in court the options available to them. In nearly every case, when the judge asked a person if they wanted to request asylum, the answer was “yes.”

Seeking Asylum

That requires another future court date, usually years down the road. Asylum proceedings are not open to the public absent approval from the judge and the seeker, but RCI obtained such permission to witness two hearings.

In the first, a couple from Honduras who came to the U.S. in April 2022 had requested asylum on the grounds that they were afraid to return. The woman testified that her brother had been murdered, and that when they tried to bring information about the case to Honduran police, in a town hours away from their hometown, a masked man brandished a gun at them. Suspicious cars then began to lurk around their home.

The government attorney asked why they could not move somewhere else in Honduras, or if they had tried to go anywhere other than the U.S. They had not, they testified. The husband said his sister is associated with drug gangs, and consequently, the couple did not feel safe anywhere in Honduras. The woman testified she never planned to immigrate, but for their family’s welfare, they fled here.

LaRocca considered the case privately for some 90 minutes, then denied the asylum application. He told the couple he believed their testimony, but their case did not meet the asylum requirements, which specify credible evidence that the applicant fears discrimination at home because of race, sex, religion, membership in social groups, or fear of torture.

But that does not end the couple’s immigration court odyssey. LaRocca asked if they wished to appeal his decision to the Board of Immigration Appeals. When they said they did, LaRocca told them they must file that appeal in the next 30 days, which would lead to yet another court appearance.

The second hearing RCI witnessed was before Judge Eric Marsteller. That case involved a 2022 application from an El Salvador woman and her two sons, who have each also filed separate asylum claims.

For unclear reasons, the woman’s attorneys withdrew in February, and she told Marsteller that she had been unable to find a replacement since then. Although she has family in the U.S. – a sister who has been granted asylum, a brother, and her mother – all of the supporting evidence for her claim of horrific abuse from her father came from a letter sent by a former partner in El Salvador.

Marsteller accepted the letter but told her it couldn’t be entered into the record because it was in Spanish. A man in court, identified as her stepfather, stated that the woman and her sons live with him in Louisiana, and he informed the judge that he would be responsible for them.

After more than an hour of the hearing, during which the sons departed the courtroom when the woman described her allegations of abuse, Marsteller asked the government for its position. The government attorney informed the court that the notice the woman had received was for a master calendar appearance, not an asylum hearing. Startled, Marsteller was forced to schedule another hearing. It will be in December 2026.