My neighbors are getting married. At least, I assume they are. Every now and then a package from a wedding planning website shows on my stoop addressed to them, and I walk it over to their house. Correctly addressed, this mis-delivery is a benign error easily remedied by a willing neighbor.
But what do you do when you receive mail correctly delivered to your address, but with someone else’s name? What if this mail has life changing documents in it and you have never met this person before and do not know how to reach them?
This is something nonprofits are increasingly grappling with across the United States: receiving federal immigration notices for individuals the nonprofit has never met and even worse has no way to contact.
When an asylum seeker is processed at the southern border, a border patrol agent puts down an address. If the asylum seeker does not have a set destination, the address of a local shelter or nonprofit that has an informal agreement with the local Border Patrol is sometimes used. The hope is that the migrant will be sent there, and the nonprofit will help them change their address once they are settled. This initial process of asylum seeking is inherently transient and yet requires a physical address at its earliest stages. A migrant here to save their lives and that of their families does not necessarily have family or friends in the country they are fleeing to, and it will take some time to find a stable enough residence for a mailing address.
Reports from nonprofits and practitioners show that at some point in the past year, border patrol agents began putting down addresses, not just for a local nonprofit, but randomly for nonprofits around the country. Nonprofits in New York City were especially hard hit, with one Catholic Charities location receiving over 300 summons for migrants that they have no relationship with and no way to contact. Sometimes these documents arrive alone, and the nonprofit who has no prior or current contacts with the migrant, is left to notify the immigration court that the notice never reached its intended recipient, and the migrant has no idea when they are required to appear for court proceedings.
But sometimes these documents arrive with the migrant, which creates different issues. Some migrants report that they were told by a government official they could find help at that address. Even when that is not the case, an agent is entering an institutional address, not a residential one, without an agreement with the institution in place. The impacted nonprofits often do not have established shelter or reception services and must scramble to support the migrants.
The potential impact of an incorrect address is extremely dire for the migrant. A migrant that does not show up to their immigration court proceedings could be ordered removed in absentia. And while lack of notice is grounds for a motion to re-open, filing a motion to re-open is a nearly impossible task for someone without access to counsel and English fluency. It is also possible for a migrant to be picked up by Immigration Customs and Enforcement (ICE) and removed from the United States prior to even having the opportunity to file a motion to re-open. The migrant might not even know that a motion to reopen is a possibility without proper screening from an attorney or legal services provider, something that is difficult to reach when in detention. Additionally, the migrant could potentially face charges of inadmissibility due to the in absentia order. There would be legal arguments in their favor, but this is not something that can be navigated without an attorney. The implications of an incorrect address are true regardless of the age of the migrant – a toddler could face this cascading series of problems as easily as an adult.
In short, an asylum seeker could never have a chance to present their case at all, and be removed without a hearing, all because of a wrong address.
Additionally, this creates a series of issues for government agencies down the road. In addition to having no way to contact and effectively serve the migrant, it adds to the delays and backlogs in the immigration courts as cases pile up. In the coming months, we may see a rise in the numbers of migrants not showing up to court hearings due to these erroneous addresses. Ensuring migrants show up to immigration court is often used as an argument to detain migrants, when in fact, the vast majority of migrants do show up to immigration court. But they need to receive actual notice at an address they can access to do so. Asylum seekers should not be penalized for not showing up when they never received notice in the first place.
Most immediately and on a granular level, federal agents need to not put nonprofit addresses down as a migrant’s residence without both the nonprofits and the migrant’s express permission. ICE attorneys and the immigration courts need to screen for incorrect addresses prior to issuing in absentia orders. Immigration attorneys and legal service organizations need to screen for the addresses of nonprofits in their client’s paperwork. All are key to ensuring due process for asylum seekers.
Systematically, the inherent initial transient nature of asylum seekers needs to be part of the consideration of how the government communicates with them. Instead of an initial residential address, combining a city and state with forms of communication beyond the postal service – including an electronic form of service. Ensuring an accessible and electronic way to change an address for ICE and communicating that to the migrant at the earliest stage will also help. Long term, a widespread case management program like what was piloted under the Obama administration could also help address this issue, but only once it is done right and on a national level. The Department of Homeland Security recently solicited applications for a grant to fund a similar pilot program.
These documents are not part of a neighbor’s wedding planning and walking the package next door is not feasible. Rather, they are at the very least key to effective due process and at the worst, a matter of life and death. Change is needed in how the government handles the addresses of migrants, and it is needed immediately.
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If you are an attorney or nonprofit who has seen these erroneous addresses, please file a report here. You can also see more information about this issue in AILA’s recent practice alert.