Federal office pushes back on Nebraska ACLU report on Omaha immigration court

By: - February 12, 2024 6:04 pm

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LINCOLN — Days after an ACLU of Nebraska report alleged due process violations for immigrants at the Omaha immigration court, a federal office that oversees the court has pushed back.

Kathryn Mattingly, press secretary for the Executive Office for Immigration Review, in the U.S. Department of Justice, said her agency had “several issues” with the ACLU report, which was published Friday. 

Dylan Severino, legal fellow for the Nebraska ACLU and the report’s lead author, indicated in a statement last week that based on observations at more than 500 pretrial hearings over five months, immigrants at the court often didn’t receive a full and fair removal hearing, as guaranteed by federal law. 

Such hearings are required when an immigrant is suspected to have violated immigration laws, such as entering the country without inspection, remaining past their visa or committing a crime.

‘Several issues with report’

“At the outset,” Mattingly noted as an issue, the report is based on five months of observations of just two of the four judges who work at the Omaha Immigration Court. The ACLU has said courtroom access requirements made it infeasible to observe cases for a third judge.

A fourth judge, Assistant Chief Immigration Judge Eric L. Dillow, is assigned to the Kansas City immigration court and did not oversee enough cases to include in the report, an ACLU spokesperson said.

Length of hearings and advisement of rights: The ACLU alleges that the average length of the observed pretrial hearings, or a “Master Calendar Hearing,” was less than four minutes. The report said this was not enough time for a slew of actions or advisals.

However, Mattingly said, not every action listed in the ACLU’s report occurs at the first hearing. Many are provided at a later hearing, especially if the immigrant is unrepresented at the first hearing and requests an opportunity to seek an attorney.

Mattingly said judges will advise immigrants of their right to counsel at the initial hearing and wait if they request time to obtain an attorney. She said represented immigrants may choose to waive a reading of their rights and obligations, as counsel are familiar with these advisals, “in the interest of time.”

“The ACLU indicates that the vast majority of observed hearings were comprised of represented immigrants, but the ACLU does not indicate whether any of the represented immigrants chose to waive a reading of their rights,” Mattingly said.

Interpretation services: The ACLU alleges that for 32 immigrants who preferred to speak in an Central American Indigenous language, 19% had an interpreter in their preferred language.

Mattingly said the ACLU does not indicate whether these immigrants had counsel and, if so, whether their counsel waived interpretation. The report doesn’t indicate whether an immigrant without such an interpreter was provided one at a subsequent hearing.

Attorney representation: The ACLU alleges that immigrants were represented by an attorney in 81% of observed hearings, increasing to 94% in subsequent hearings.

Mattingly said many immigrants do not obtain an attorney until their first hearing or later, which is why a second initial hearing may be scheduled.

“EOIR recognizes the immense value of legal representation in immigration proceedings, both to the individuals that come before our courts and to the efficiency of our hearings,” Mattingly said.

The court has self-help materials; Immigration Court Helpdesks, where unrepresented immigrants can seek assistance; and the Immigration Court Online Resource, which provides general information on what will happen during a hearing and how immigrants can prepare for the hearing.

“Limited appearance” regulations, Mattingly said, also allow practitioners to assist immigrants in preparing legal documents, including asylum applications, without appearing in court. She said these regulations can lead to free or low-cost help.

‘We stand by our work’

Sam Petto, spokesperson for the ACLU, said Monday the ACLU reached out to the court and extended an invitation to discuss its findings prior to launching the report.

“That invitation is still open, both to the court and the EOIR (Executive Office for Immigration Review),” Petto said in an email. “We stand by our work and our concerns about due process.”


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Zach Wendling
Zach Wendling

Zach rejoins the Nebraska Examiner after studying abroad in Antigua, Guatemala, following a yearlong Examiner internship. His coverage focus areas have included politics and government, health and well-being and higher education.