With Trump’s promise to take an aggressive approach to immigration, the Justice Department recently issued new guidance to immigration courts to grant fewer continuances to lawyers so that they can prepare. This may result in far more deportations because of the inability to properly prepare for deportation and removal hearings. While the court process has been bogged down, speeding it up by denying continuances may have due process implications. A Chicago immigration lawyer must have time to properly investigate cases and prepare for these hearings to better represent the interests of clients.
The Guidance to Immigration Judges
The Department of Justice sent a memorandum on July 31 to all immigration courts in the nation. It urged immigration judges to grant fewer continuances in order to try to clear the huge backlog of immigration cases. There are currently more than 600,000 pending cases in the immigration court system, a number that has doubled since 2011. While this backlog is an acknowledged problem, denying attorney requests for continuances so that they can have time to prepare may violate the due process rights of the immigrants.
Why Denying Continuances Is Problematic
In the criminal justice system, the government must turn over all of the evidence it has gathered against defendants to the defense. This is done so that defense lawyers are able to prepare their clients’ cases. The U.S. Constitution guarantees that defendants in the criminal justice system have the right to present a defense. They also have the right to receive the discovery in their cases so that they can see the evidence that the state has against them before accepting pleas or going to trials.
In the immigration system, the government does not have to turn over the evidence that it has gathered against immigrants. Instead, the immigration attorneys often have to file Freedom of Information Act requests in order to get the evidence that will be used against their clients. FOIA requests can take months to be processed by the government, necessitating attorney continuances so that they can prepare. In many cases, attorneys are retained shortly before their clients’ scheduled appearances and need to request continuances in order to adequately represent them. If these continuances are routinely denied, it will make it far more difficult for Chicago immigration lawyers to secure the evidence that they need before their clients’ deportation and removal hearings.