Hundreds of people stood in line outside immigration courts in cities across the country on Halloween for what appeared to be a trick: the date on their notices said October 31, 2018, but the immigration courts did not know they were coming.
One attorney described the area outside the immigration court in San Francisco as a “mob scene.” The line outside the immigration court in Atlanta hugged the gate around a good portion of the building.
Immigrations and Customs Enforcement appears to be sending notices with fake dates to prevent undocumented immigrants from qualifying for what’s called the “stop-time rule,” which can make them eligible to stay if they can prove they’ve been in the U.S. continually and have a family member with a green card or U.S. citizenship.
Because ICE has long had difficulty scheduling dates with the immigration courts, it used to send notices with “TBD” court dates. But in June, the Supreme Court ruled that a “TBD” notice to appear was invalid, and that’s when ICE started sending notices with fake dates.
“ICE is making up dates and putting them on notices to appear as some sort of empty gesture to a constitutional mandate from the Supreme Court,” said Ben Johnson, executive director of the American Immigration Lawyers Association. ICE did not respond to a request for comment.
The “phantom” court date phenomenon can be traced to a June 21 Supreme Court ruling in a case called Pereira v. Sessions.
Pereira is a native citizen of Brazil who came to the U.S. in 2000, overstayed his visa, and received a notice to appear following a DUI arrest in 2006. Pereira’s notice to appear did not mention a time and date for him to appear in court for his initial removal hearing, so he argued that it didn’t set off the so-called “stop-time rule.”
According to the “stop-time rule,“ if a person accrues 10 years of continuous physical presence in the U.S., they may be eligible for a form of discretionary relief known as cancellation of removal. By the time Pereira appeared before a judge in 2013, he argued that he’d been in the U.S. for over 10 years and that his 2006 notice to appear with a TBD date and time was invalid. The Supreme Court agreed with him.
Following this ruling, ICE started issuing fake dates in a poor attempt to comply with the Supreme Court. Some notices to appear instructed people to show up in court at midnight; others asked them to show up on days of the month that don’t exist like Sept. 31, 2018. “We know for a fact that there isn’t a single court in this country that would have court at 12 a.m.” said Antonio Williams, an immigration attorney from El Paso, told VICE News.
“This shows that they don’t know who is in charge and who is setting policy, they don’t trust anyone to be the designated decision-maker,” said Ben Johnson, executive director of the American Immigration Lawyers Association. The organization has been in touch with Executive Office for Immigration Review in Chicago to address the long wait lines and fake court dates.
Across the country, attorneys routinely call ICE’s hotline to check that their client’s alien registration number matches up with the court date set on their notices to appear. Often, their clients aren’t scheduled for a hearing at all and, in some cases, they aren’t even in the system. People who are unrepresented, on the other hand, find themselves in more uncomfortable situations: they make arrangements and travel long distances to comply with what they believe are court orders. When they finally get there, they are told to come back at another date and time.
“People who live, in most cases, very far away from an immigration court will bear the expense of buying a hotel, flying hundreds of miles, making arrangements to have legal counsel available, only to learn that in fact DHS is inventing dates and they don’t have a time,” Williams said.
Jeffrey Rubin, a Boston-based attorney who defended Pereira in Pereira v. Sessions, isn’t surprised by the lack of coordination between ICE and the courts, but he says these fake dates and times are shocking, and could lead to the termination of thousands of cases.
“Attorneys have never seen anything like this,” Rubin said. “You used to see TBD on notices to appear date and time sections because ICE didn’t have their act together to schedule real dates. Now you can actually see that they can’t coordinate and schedule real dates.”
But there could be a silver lining for anyone who’s been summoned to a fake court date. If courts decide that notices to appear with fake dates and times are the same as notices to appear with TBD dates and times, they could get the chance to stay in the U.S. permanently.