Editor’s Note: Kica Matos is the vice president of initiatives at the Vera Institute of Justice. The views expressed in this commentary are her own. View more opinion on CNN.
On Wednesday, US Attorney General Merrick Garland vacated two Trump-era immigration decisions that had narrowed the range of people who could apply for asylum, and had removed protections for victims of gender-based violence, gang brutality and persecution against families.
My colleagues and I, working at an institute that has helped women, children and families navigate our complex immigration system for almost two decades, know this reversal will likely save thousands of people and families from a lifetime of abuse or death. President Joe Biden’s administration deserves the highest praise for ending these appalling and completely unnecessary restrictions on asylum.
However, if the Biden administration wants to be truly courageous and turn the page completely on former President Donald Trump’s xenophobic immigration agenda, it must go further and rescind its own policies against asylum-seeking families.
Last month, the Biden administration quietly announced it would make more severe a policy most recently used by Trump to fast-track cases for anyone seeking asylum at the border, while subjecting asylum seekers to electronic surveillance as their cases move through immigration court.
These accelerated case proceedings, known by most in the immigration legal community as “rocket dockets,” will urge immigration judges in 10 cities across the country to decide the fate of asylum seekers within 300 days of their initial hearings. This is even harsher than the 365-day deadline set for the majority of cases by Trump.
While the administration insists that these accelerated timelines are not mandatory and will help decide cases in a more “efficient” and “fair manner,” in practice – and despite the two decisions vacated Wednesday – they could give cover to any immigration judge to fast-track asylum-seeking families to deportation.
As a result, even though seeking asylum at the border is perfectly legal, families will have little time to find a lawyer — that is, if they even have the resources for such a search. These adults and unaccompanied children alike will have to navigate a complex legal system, appear before immigration judges and defend themselves against trained US Immigrations and Customs Enforcement prosecutors – alone.
Under the Trump administration, from September 2018 through May 2019, according to government data, more than three-quarters of all families in immigration court did not have legal representation.
Having a lawyer in immigration court makes a staggering difference to the outcome of a case. Studies show that immigrants with attorneys are three and a half times more likely than people who do not have legal representation to be granted bond (meaning released from detention, pending the outcome of their case) and up to 10 times more likely to establish their right to remain in the United States.
Moreover, subjecting these families to electronic surveillance is excessive and serves no clear purpose. The government’s own data show that families not only appear at high rates for all their hearings alone (76% of the time), but with legal representation they appear at even higher rates (99% of the time).
Nothing is gained by instituting this massive invasion of privacy, other than to normalize the idea that the government has the right to surveil massive numbers of mostly Black and brown immigrant families seeking asylum.
If the Biden administration is serious about addressing barriers to legal counsel and resources people face in our immigration system, then it must immediately rescind these accelerated dockets and instead prioritize the funding of legal representation for all families in immigration court.
We are in the middle of a national conversation on the need to address the systemic oppression and overpolicing of people of color and immigrant communities. Biden must send a clear message that his policies will be guided by evidence and based on fundamental principles of ensuring due process and equal access to justice for all.
Anything less is a betrayal of his promise to treat families seeking refuge with dignity and care.