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ACLU accuses Omaha court of violating immigrants’ due process in Nebraska, Iowa

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ACLU accuses Omaha court of violating immigrants’ due process in Nebraska, Iowa

Feb 09, 2024 | 7:42 pm ET
By Zach Wendling
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ACLU accuses Omaha court of violating immigrants’ due process in Nebraska, Iowa
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A migrant family wades through the Rio Grande while crossing from Mexico into the United States on Sept. 30, 2023, in Eagle Pass, Texas. (John Moore/Getty Images)

LINCOLN — A new report from the ACLU of Nebraska accuses the U.S. Department of Justice immigration court in Omaha of routinely violating due process rights in immigrants’ removal proceedings.

Read the report

The ACLU of Nebraska’s full report is available here.

The new report, unveiled Friday, is based on more than 500 pretrial hearings that researchers watched between April and August 2023. A team recorded the process and outcome of each hearing, including its length, whether immigrants were advised of their rights, the language they spoke and whether they had an interpreter or attorney.

The court oversees cases for people living in Nebraska and Iowa.

Dylan Severino, legal fellow for the Nebraska ACLU and the report’s lead author, said federal law guarantees that immigrants receive a full and fair removal hearing.

“What we saw is a far cry from that guarantee,” he said in a statement.

The U.S. Department of Justice’s Executive Office for Immigration Review, which oversees such immigration courts, did not immediately respond to a request for comment Friday.

Rights called an ‘unmovable object’

About 40% of removal proceedings for the Omaha court include people living in Iowa, according to the ACLU of Iowa. It also said more than 2,600 new proceedings were filed against people living in Iowa in the current fiscal year. Comparable figures were not provided for Nebraska.

Severino said pressures on courts, including growing caseloads and backlogs, should not affect constitutional rights.

“That’s an unmovable object that simply cannot be fringed upon for the sake of expediency,” Severino said at a Friday news conference.

The Nebraska ACLU’s report, produced in partnership with the University of Nebraska-Lincoln Legal Decision-Making Lab, presents four takeaways from 534 observed hearings:

  1. The duration of each procedural pretrial hearing was 3.9 minutes.
  2. Judges read immigrants their rights in 18% of observed hearings, often in group settings.
  3. For 32 immigrants whose preferred language was a Central American Indigenous language, such as Mam, Q’anjob’al and K’iche’, 81% did not have an interpreter.
  4. An attorney did not represent an immigrant in 19% of observed hearings.

The ACLU primarily observed non-detained cases before two of the three judges — U.S. Judges Alexandra Larsen and Abby Meyer. Judge Matthew Morrissey primarily presides over cases of detained immigrants, the ACLU said.

The report says 387 hearings before Judge Larsen were observed. They lasted an average of 3.8 minutes, and Larsen didn’t advise 79% of the immigrants of their rights. Of 147 hearings before Judge Meyer, she did not advise 92% of immigrants of their rights, and the hearings lasted an average of 3 minutes.

ACLU’s recommendations

Rose Godinez, Nebraska ACLU legal director, said the report indicates that the immigration system “is not working for anyone” and she hopes federal and state leaders pay attention.

“It is a problem that is shared by all of us, and the solution also depends on all of us,” she said.

Among the ACLU’s recommendations are for the court to advise immigrants of their rights individually before each hearing and provide adequate interpretation services. It also recommends that local or state governments create a program for guaranteed representation.

The ACLU also argues that the immigration courts should be federally restructured as an independent court system from the executive branch, with more immigration judges, who should come from diverse work experiences. Most of the system’s judges are former Immigrations and Customs Enforcement attorneys, including all three in Omaha.

In the meantime, the ACLU states, this “onus of depoliticization” falls on the DOJ.

“In a system that pits immigrants against the government, that bias can be determinative in life-or-death asylum cases,” the ACLU report states.

Severino said the Omaha court isn’t reaching the bar set by constitutional rights. He argued that reforms would help the court become more efficient by preventing retrials and appeals.

“The bottom line is that there needs to be action to address the problems we found and help more people stay in Nebraska and Iowa, put down roots, and continue to strengthen our communities,” Severino said.

Steps during a typical pretrial proceeding

A typical pretrial removal hearing for immigrants, or “Master Calendar Hearing,” is an important step that the attorneys with the ACLU of Nebraska and an immigration attorney said are some of the most important.

The following actions must occur during each immigrant’s pretrial hearing:

  • The immigrant’s case is called for hearing.
  • The judge asks the immigrant to pronounce their name.
  • The judge requests that the immigrant name their attorney, if they have one.
  • The judge advises the immigrant of their rights in the court.
  • An ICE attorney describes allegations against the immigrant.
  • The judge asks the immigrant to deny or admit to each allegation.
  • The judge asks the immigrant to choose a country for deportation. If the immigrant refuses, the country is chosen for them.
  • The judge asks if there are legal reasons the immigrant should not be deported.
  • The judge sets deadlines for the submission of various forms, applications, statements and more.
  • The judge schedules the next pretrial hearing or a final evidentiary hearing (known as a trial or “Individual Calendar Hearing”) to decide the case.

“There is no possible way to do all of that in four minutes.” — Rose Godinez, Nebraska ACLU legal director.