Wednesday, July 5, 2017
SCRUBBING AWAY TRANSPARENCY AND OUR IMMIGRATION RESOURCES By Geoffrey A. Hoffman
The EOIR Benchbook, as well as other resources, such as Asylum Officer Basic Training lesson plans and now parts of the Department of State’s Foreign Affairs Manual, have been scrubbed from official federal websites. It shows a disturbing trend toward lack of transparency and accountability. It begs the question, does it mean the judges are no longer following the Benchbook? If they are not following the Benchbook any longer, then what are they following? If it were just the Benchbook which is still available as a historic document, I would not be so concerned. But it appears that these disappearances are escalating.
It raises an interesting question or set of questions: How come government resources are being scrubbed? Is it legally justifiable or does it represent just an administrative convenience within the agency’s discretion, as will be argued? Should we start saving these resources in archives accessible to legal advocates just in case it is all wiped away one day? Have we come just a bit closer to 1984, where a government shields its reasoning and authorities from public inspection to ensure a façade fully managed by the state?
On the first question, how come they are being scrubbed? I do not know. I would venture a few guesses. As the President tweeted about the states’ response to the election commission: What are they trying to hide? First, there was a lot of good material in the EOIR Benchbook which helped advocates understand the immigration judge’s reasoning process and especially the procedures involved in removal proceedings. For example, the advisals were helpful to have in one place, as well as discussions of burdens and standards of proof and other useful things such as specific discussion of competency and treating vulnerable respondents for example with mental health issues.
Here are some legal arguments which could be made in responding to the “scrubbing” effort. If removing resources represents a change in agency policies can they be attacked as new rulemaking subject to APA review? As part of an appeal or proceeding it becomes clear that authority found in these resources were used incorrectly then this could support an exception to the Chevron doctrine and due process since the agency is violating its own explicit (albeit scrubbed) rules, policies, or procedures. Usually, deference is owed to the agency under Chevron but exceptions exist. Perhaps by negating public accessibility to these resources the goal is to undercut any exception to deference? This could be the administration’s attempt to shore up a possible argument against Chevron deference. From the administration’s perspective can we expect a national security defense like the one utilized in the travel ban case?
On the question whether we should start saving these resources I know that some have begun to do so. AILA and others have safeguarded some of these resources. I am aware that there is a repository of at least the AOBT lesson plans. No one in the press that I am aware of has highlighted this trend. Why? Isn’t it time awareness was raised about these changes? I am concerned that we risk erosion in the rights of our clients if we say nothing about changes taking place silently and with no fanfare or notice. It may be just the Benchbook and other assorted resources today, but tomorrow we could see a pilot program placing bailiffs in our civil immigration courts standing behind immigrants awaiting their asylum trials…but wait, that already happened.
Geoffrey A. Hoffman, University of Houston Law Center, director of the Immigration Clinic (Institution for identification only. The views expressed are the author’s own and not necessarily those of the University’s or any other party.