Judges quick to end immigrants’ asylum cases as ICE agents wait outside courtroom

Fabian took a deep breath as he peered down the long hallway leading to the exit of the Whipple Federal Building in Fort Snelling.

Three men in plain clothes were idling along the hallway. He hesitated.

Minutes earlier, Fabian, a man from Venezuela, sat before Immigration Judge Brian Sardelli for a removal hearing. Without an attorney, Fabian watched as a lawyer for the Department of Homeland Security asked Sardelli to dismiss the removal proceedings against Fabian. Sardelli granted it.

In years past, that typically meant Fabian would be free to go and the U.S. government would not be interested in pursuing his removal from the country. But under President Donald Trump’s administration, it meant his arrest was imminent.

In Fort Snelling this year, more than 225 people have watched their immigration case dismissed at the government’s request, only to be arrested by ICE agents after leaving the courtroom. They were then placed in expedited removal, according to the Advocates for Human Rights, which staffs Fort Snelling courtrooms daily with legal observers.

Expedited removal is a process that requires the detention of noncitizens. They can be deported within days or weeks, without a hearing before a judge.

Expedited removal was previously reserved for migrants caught within 100 miles of the border and within two weeks after crossing illegally. Now, the Trump administration is applying it to noncitizens living anywhere who can’t show they have been in the U.S. for at least two years.

“It’s pretty horrific,” said Linus Chan, a professor at the University of Minnesota School of Law. “It subjects people who have been free and living peacefully, many times with their family, including young children, and now forcing them to be separated from their family — doing so in an extraordinarily cruel manner."

The Executive Office for Immigration Review, a part of the Department of Justice, which carries out removal proceedings, declined to comment.

One of the first executive orders Trump issued after returning to office gave immigration officials wide latitude to carry out mass deportation plans. In policy memos, administration lawyers maintain that the way courts are using case dismissals to put people in expedited removal is allowed under the law.

The Minnesota Star Tribune is using only first names of asylum seekers because they fled their home country fearing violence to come to the U.S.

After seeing the men waiting near the building’s exit, Fabian turned around and went back inside a lobby for immigration hearings. He sat next to a woman and spoke to her in Spanish, telling her he was nervous about ICE agents.

Expedited removal was created in 1996 under the Immigration Reform and Immigrant Responsibility Act to immediately remove people shortly after illegally crossing the border.

The process now playing out in Minnesota and across the country — where arrests follow dismissed immigration cases — has mainly targeted young men and people who do not have legal representation, according to the Advocates for Human Rights.

After being put in expedited removal, the only ways an immigrant can stay in the U.S. are to file an appeal or convince immigration officials they have a credible fear of persecution or torture, the first step in filing a claim for asylum.

But asylum claims can take months or years to vet. Some people abandon their claims because they don’t want to be in mandatory detention that long, Chan said.

Since Fabian’s arrest at the courthouse in Fort Snelling in late October, he’s been housed at the Kandiyohi County jail despite not being accused of a crime.

Griffith added that an increasing number of asylum claims are being decided on applications alone, without holding a hearing to take testimony.

Even if immigrants can convince government officials they risk persecution if they return to their native country, it doesn’t guarantee they will stay in the U.S. The Department of Homeland Security is increasingly deporting immigrants with asylum claims to countries that have agreed to accept them, such as El Salvador, Panama, Guatemala, Rwanda and South Sudan.

Amy Lange, who manages the Immigration Court Observation Project for the Advocates for Human Rights, said no immigration laws have changed since Trump returned to office. Instead, the administration is acting on Trump’s executive order, new policies and expanded readings of existing laws in ways that boost its mass deportation efforts.

“It’s fulfilling a campaign promise to deport as many people as possible, rather than funding the courts so that we can have fair adjudication,” Lange said. “The circumstance that has changed is they want to get our detention numbers up. So they are taking away this pathway.”

The government’s actions have prompted legal challenges, along with pushback from lawmakers. In June, 86 members of Congress sent a letter to Secretary of Homeland Security Kristi Noem. They expressed “grave concerns” that the tactic undermines due process and targets people who are unlikely to have criminal backgrounds and are following legal pathways to enter the United States.

“If somebody is going through asylum, we have a system which is supposed to work in which people don’t feel fear and intimidation,” she said. “And the courts are now becoming arresting fields.”

During a hearing at Fort Snelling in October, Immigration Judge Kalin Ivany and a government attorney discussed dismissing removal proceedings against Carlos, a man from Colombia, because the attorney said it was no longer in the government’s interest.

Through a Spanish interpreter, Carlos, who did not have an attorney of his own, objected.

“If they close the case, I can be forced to go back to my country, even though I have a reason not to go back.”

Ivany dismissed the case anyway. She noted that Carlos could be deported without a hearing unless he passed a credible fear interview.

Immigration rights advocates argue judges do have discretion, and by not using it, they are complicit in forcing people into expedited removal and limiting their chances at a fair day in court.

“It’s not like they are arguing every case that comes before them on the merits and one happens to be dismissed. They’ve figured it out in advance that they are going to dismiss these cases,” Lange said. “It is an alarming erosion of due process at every level.”

ICE and Justice Department officials did not respond to requests for comment.

The American Immigration Council, a national research and advocacy group, has asserted that judges generally are violating immigration court procedures by not requiring government lawyers to make motions to dismiss in writing and not allowing noncitizens 10 days to respond.

Chan said judges have “explicit regulatory authority” not to dismiss cases, yet they have been “feeling institutional pressures.”

Earlier this year, Chan said, it was more common for judges to reject a motion to dismiss.

“But unfortunately, what we’re seeing now is fewer and fewer of those judges are doing so,” he said.

Carlos’ objections didn’t convince Ivany, either. As the decision came down, an ICE agent typed on his phone in the back of the windowless courtroom.

The men idling outside in the hallway were waiting for Carlos.