BALTIMORE—In a stunning courtroom admission, a Justice Department lawyer told a federal judge Monday that the Trump administration has identified 91 cases where asylum seekers were deported despite a court-ordered class action settlement barring them from being removed before their asylum applications were adjudicated.
The dramatic increase in the number of known wrongful deportations in the case from about a dozen to nearly 100 was an astonishing development in a case where the government has insisted that the number of such deportations was relatively small.
“Obviously this is extremely troubling,” U.S. District Court Judge Stephanie Gallagher said in reaction to the update from the Justice Department that she had ordered Friday.
The existence of significantly more wrongful deportations was first revealed in surprise testimony Thursday by asylum officer Kimberly Sicard of U.S. Citizenship and Immigration Services, who said she had first become aware three to four weeks earlier of additional wrongful deportations numbering in the “low 100s.” She testified that the information on the additional deportations was provided to the USCIS general counsel’s office.
DOJ trial counsel Ruth Ann Mueller told Gallagher that USCIS notified DHS and ICE of the new cases on Thursday, March 12
Judge Gallagher was “very concerned” about what she called the “notification issue” — the failure to divulge the discovery of the new cases to either the court or to class counsel. Instead the new information spilled out on class counsel’s cross examination of Sicard.
“At the very least they knew a week ahead of time and didn’t tell you all,” Gallagher told Mueller, before noting that a DHS attorney has been sitting in court at the government’s table throughout the three days of hearings.
“I’m very troubled that it seems to have been siloed for a week,” she said.
On Thursday, the day the hearing began, DOJ had notified class counsel of two new cases. That confounded Gallagher. “Why did they notify you of two if they had 100?” Gallagher asked Mueller. Gallagher suggested that “protocols need to be improved” between agency lawyers and DOJ trial counsel.
Mueller told the court that internal investigations into the matter are ongoing. “The DOJ litigation team agrees this is critical information to provide to your honor and to class counsel,” Mueller said.
Mueller provided an initial analysis of the 91 new cases that divided them into certain subcategories, including people who had voluntarily left the country or withdrew their pending requests for relief, but Gallagher was having none of it. Gallagher said she wanted a full investigation into all 91 cases.
“Voluntary doesn’t necessarily mean they weren’t entitled to relief under the settlement agreement,” Gallagher admonished, pointing to testimony from an ICE official in court today that one asylum seeker had supposedly completed the paperwork to voluntary deport themselves even though their case file said in two different places that as of 2018 they could neither read nor write.
Class counsel Michelle Mendez of the National Immigration Project raised additional concerns beyond Gallagher’s “notification issue.” She pointed out the discrepancy between Sicard’s testimony that the USCIS general counsel’s office was first notified three to four weeks earlier, which would seem to fall sometime in late February, and the DOJ’s representation that USCIS didn’t notify DHS and ICE until March 12. She also questioned how the government got from Sicard’s “low 100s” to the 91 cases DOJ told the judge about.
Gallagher concurred in Mendez’s concerns, telling Mueller that she wants to know who Sicard told at USCIS and an explanation for the discrepancy between Sicard’s and DOJ’s numbers. In short, Gallagher wants an investigation and full details about all 91 cases. Gallagher also ordered DOJ to give class counsel regular status reports every 48 hours starting Wednesday.
