Advocates say Minnesota's immigration proceedings are becoming less transparent

[MUSIC PLAYING] NINA MOINI: It's our top story. More than 200 people living in Minnesota with a case at Fort Snelling immigration court have had their cases dismissed by a judge and then were immediately arrested by ICE agents outside the courtroom this year. Until recently this was an uncommon practice. It was not normally used for people who have settled their families in Minnesota for months or years, but that's what legal observers with the Advocates for Human Rights have seen this year. Michelle Garnett McKenzie is the executive director of that organization. She joins me now to shed light on what's changed in immigration court here in Minnesota. Thanks for your time this afternoon, Michele.

MICHELE GARNETT MCKENZIE: Thanks so much, Nina. Good to be with you.

NINA MOINI: Well, thanks for being here. I wonder if you could take us to what typically happens in cases like this. What does it mean when someone has their case dismissed in court? What usually happens after that?

MICHELE GARNETT MCKENZIE: That's a great question. We tend to think of if we've watched television courtroom dramas that dismissal of a case means you're free to go. Your-- the case is over. But in immigration court, the motion to dismiss is being used by the-- by ICE, by Immigration and Customs Enforcement, to dismiss one particular type of removal from the United States, the removal hearing. It's a specific legal proceeding and give them the opportunity to essentially treat the person as though they are just appearing at the border and use something called expedited removal.

Expedited removal gives authority to deport somebody with really just the say so of the inspecting officer and a sign off by their supervisor. No hearing, no trial. So instead of the cases dismissed and you're free to go, it's the case is dismissed and you're in mandatory detention, facing immediate expulsion with no hearing on whether you have a defense to stay in the US. It's a really different setup than we've ever seen before.

NINA MOINI: And, Michele, I'm curious about your legal observers. What are they doing? Have they always been observing? Have you increased that staff because I'm also curious about this 225 number. I'm guessing that's just the ones that you all have witnessed.

MICHELE GARNETT MCKENZIE: That's right. So our legal observers, the Advocates for Human Rights, started doing trial monitoring of the immigration court system back in 2017. We based this on a standard human rights monitoring methodology, really recognizing that access to court is essential to a fair, humane immigration system and that public hearing isn't public if nobody ever shows up to view that.

So we began monitoring hearings at the Fort Snelling immigration court. Now it's been almost eight years and having volunteers recruited and trained to go out and just be present in the courtroom documenting what's happening, trends that they're seeing. For years, we were able to really have a lot of good practices highlighted for one of the judges to share with their colleagues, really making sure that people have a full and fair hearing as the law permits.

Since January, we have seen a real outpouring of interest, of course, in people wanting to better understand the immigration system, and we also saw more hearings being scheduled at the Fort Snelling immigration court. So we do have people out on site scheduled to be in each courtroom that's operating every day. While the Fort Snelling court has more than 40,000 cases pending, they do only have five judges on staff. So it is a relatively small courtroom or courthouse, and we have people out there using a standard documentation form and keeping track of what's happening, how judges are reviewing cases, trends that are happening. That's increased dramatically as we've also had to be in the waiting rooms, just documenting what's happening there as well.

NINA MOINI: You mentioned the immigration judges in these situations. Have you been in contact with judges? How are they shaping what's happening here?

MICHELE GARNETT MCKENZIE: We for years did have a really robust open dialogue with the immigration court. That was something that allowed us to, like I say, flag when things were going well and let them learn and get improvements. When one judge didn't well explain a complicated legal topic to the people appearing before them, we could point that out and help them improve. And we could also call out systemic problems that to the whole setup.

We have no ability to have that dialogue today. The channels of liaison between the Department of Justice Executive Office for Immigration Review, that's the agency that runs the immigration courts, that those channels have been cut off to public liaison. So we're not in regular communication with the court at this point.

NINA MOINI: For how long has that been?

MICHELE GARNETT MCKENZIE: Since January. So since the new administration took over over--

NINA MOINI: That's right.

MICHELE GARNETT MCKENZIE: President Donald Trump.

NINA MOINI: Tell me how that impacts your ability to advocate on behalf of people

MICHELE GARNETT MCKENZIE: Well, one of the most disturbing things that we found is that the courtrooms are being locked and we are being actually shut out of public court space either because the rooms are just simply locked or because there are positioning of cases as confidential. We're seeing dockets in the-- posted dockets in the courtroom redacted so we don't what's going on. It's really a disturbing trend toward opacity in a system that should be a public hearing.

It's really disturbing in any democracy when you see courts starting to do their work behind locked doors. And that's something that we're deeply concerned about. Fair public hearing is essential to our democracy, and not being able to even get in the door has really-- it raises lots of questions. Why is that door locked? Why do we not want sunshine in a public space?

NINA MOINI: And I understand your legal observers have also noted that more asylum cases are being judged on just the applications alone without court hearings. Are you concerned that about that and then that people will not want to come to court?

MICHELE GARNETT MCKENZIE: Well, absolutely. The asylum application process is so essential to protecting people from being deported to a country where they fear persecution on account of their identity or their beliefs or where they fear torture. We have international and federal legal obligations that prevent the United States from deporting somebody where we know that they will be subject to persecution or torture. And we've seen these two tactics, one that you just mentioned of the judges just looking at a paper application, not asking any questions and not allowing any evidence, and on the basis of just a preliminary filing dismissing the case. They call it pre-termining the case and kicking it out, basically denying their application for asylum.

That's not a hearing on whether you are afraid of persecution on account of your race or your religion or your sexual orientation. These are life and death cases that are being terminated with just a glance at the paperwork.

And we're also, of course, worried about these motions to dismiss. We started with where people are being kicked out of the asylum process, being kicked out of the immigration court hearing by this dismissal of their case then put into mandatory detention where they have to wait-- in some cases, we've seen people waiting now over five months-- for a preliminary interview that if they succeed will just get them back to immigration court. It's simply there to push people out and get them-- as far as we can tell, get them to give up their valid claims for asylum and go away because they face indefinite, prolonged detention.

NINA MOINI: And these asylum cases are civil cases, but I am curious to who-- what types of people are you seeing this happen to. Are these people with criminal records? Are these a specific age group or gender? What are-- who are these people?

MICHELE GARNETT MCKENZIE: As these are people who are eligible for asylum. They have entered the US and filed applications to stay here based on their fear of persecution or torture, and they have no prior immigration record or criminal record. So there's-- these are people who are just trying to have a fair day in court on the case that whether the situation that they picked up and fled sometimes on foot from thousands of miles, have worked so hard to have safety for their family, taken really extraordinary steps to get themselves to protection and safety, having those cases just kicked out.

NINA MOINI: Just lastly, Michele, I know your organization is tracking a lot of things right now such as flights that are leaving to deport people, and I feel like you can only observe so much. Are these types of numbers being tracked anywhere that you know of, and how are you going about trying to wrap your head around all of this?

MICHELE GARNETT MCKENZIE: It is really difficult to document human rights abuses when they're happening. The methodology we use, our approach is really to document what we can see and collect the qualitative real-life data, the stories that are happening, and then we pass that through the lens of publicly available data that organizations around the country are trying to obtain so that we can see how many of those cases did we actually know about. But it takes all of those pieces of data collection to really document what's happening when human rights violations are there and when we're trying to make sure that people have a fair day in court.

NINA MOINI: Michele, thank you so much for coming by and sharing your perspective. I really appreciate it.

MICHELE GARNETT MCKENZIE: Absolutely. Thank you, Nina.

NINA MOINI: Michele Garnett McKenzie is the executive director of the Advocates for Human Rights based in Minneapolis.