At the Bishop Henry Whipple Federal Building at Fort Snelling, judges determine whether immigrants from Minnesota, South Dakota, and North Dakota with asylum claims, removal orders or other immigration claims will be legally allowed to remain in the country.
Since President Donald Trump took office in January, Immigration and Customs Enforcement (ICE) agents now wait in the hallways, too, ready to detain individuals whose cases are increasingly being dismissed in a spate of motions from government attorneys.
There are other, more welcoming, faces as well, including a group of individuals who for eight years have been coming to Fort Snelling to sit in on immigration court hearings and monitor them. They are court observers, belonging to Minnesota organization The Advocates for Human Rights.
These observers have been a constant presence in courtrooms, meticulously documenting immigration hearings to maintain accountability in the immigration system. But in October, a change occurred at Fort Snelling. Clerks told court observers and others that hearings were closed, and doors to publicly available courtrooms were locked. Now, in Fort Snelling and immigration courts across the country, observers say they are increasingly being shut out and unable to observe the proceedings.
Closing the courts
The Advocates for Human Rights began their court observation project in 2017, during Trump’s first term, to track immigration court hearings and monitor individual cases. Since then, trained court observers have been a daily presence at Fort Snelling, taking systematic notes on immigration cases and tracking defendants as they progress through the system. For Madeline Lohman, advocacy and outreach director at The Advocates, the project is a tool for upholding democracy.
“Authoritarianism thrives in secrecy,” Lohman said. “The way governments consolidate power at the expense of the people is that they make their decisions in places that you can’t evaluate whether what they’re saying is true or not.”
The Advocates have consistently had volunteers at Fort Snelling Immigration Court since the project began in 2017, though Lohman says the total number increased significantly after Trump was elected for a second term.
Immigration court hearings generally fall into one of three categories: bond hearings, which determine whether a person will remain in detention during their case; master calendar hearings, procedural hearings to establish immigration charges against defendants; and individual hearings, often referred to as merits hearings, where the final decision on an immigration case is made.
Since October, court observers have frequently shown up to court only to be told that hearings of all types are closed to the public. Doors are now locked by default, unless a judge specifically asks for them to be opened.
Immigration court hearings are open to the public, though they can be closed in cases where confidentiality is an issue. Judges also have discretion to close hearings to protect any party in the case, witnesses, or the public interest, even if the hearing would otherwise be public. Judges were slow to exercise this power in the past however, with the public generally allowed access to the majority of hearings.
Amy Lange, head of The Advocates’ court observation project, said it was rare for the public to be shut out of master calendar hearings in particular.
“We would see one of those every three months, and now this is on a daily basis,” Lange said. “There are times now when an observer will show up to court and they will say a judge is closing a courtroom for the entire day.”
Lange identified four instances since October where master calendar hearings were closed for at least the entire morning case docket, with hearings being closed the entire day of Oct. 27. She said staff from the Executive Office for Immigration Review (EOIR), which manages the nation’s immigration courts, has cited confidentiality as the reason for closing master calendar hearings, which overwhelmingly deal with pleadings, scheduling, and other matters not specific to an individual’s case.
“I don’t understand why a master calendar hearing would be closed to the public,” she said. “By their definition, they’re procedural.”
Merits hearings have also been increasingly closed to the public. While these individual hearings have historically been more likely to be closed to the public for confidentiality purposes, Lange says it was typically done at the behest of the defendant. She identified at least three instances since October that merits hearings were closed off to the public without individual consideration, including one in which the client’s attorney had granted permission in advance for court observers to be present.
For Lange, this increase in closed hearings raises alarm over court accountability.
“You have to operate consistently, transparently and accountably,” she said. “We have to wonder if that’s happening when closures are unexplained and indiscriminate.”
In addition to closing hearings, case dockets have increasingly been stripped of identifying details, making them difficult to track. Names are frequently removed, making it harder for both the public and respondents to get updates on cases. In the past, these details would be removed only for confidential cases, but this is now happening daily, court observers say.
Fort Snelling security has also replaced EOIR staff as the party responsible for admitting the public into the courtroom. Because these guards are not EOIR employees, they are unable to communicate with judges unless directly called. Lange said this has led to breakdowns in communication between courtrooms and observers.
To date, EOIR has not issued any policies or memos dictating additional closures of public courtrooms. A November fact sheet issued by EOIR says that judges can close a hearing based on a request from any party in the case; if the judge needs to limit attendance; or if closing the court is required by law.
The fact sheet also states that Webex links for hearings are reserved for parties appearing remotely. The public had previously been able to observe hearings remotely.
In an email to Sahan Journal, EOIR spokeswoman Kathryn Mattingly cited the fact sheet as justification for increased hearing closures although it did not spell out any rationale for the change. She did not respond to Sahan’s questions about why court employees are locking courtroom doors by default and using guards rather than EOIR staff to communicate with judges.
The big picture
Across the country, immigration courts are putting similar restrictions in place.
The Acacia Center for Justice, a Washington, D.C.,-based nonprofit, has been connecting with court observation groups nationwide to coordinate efforts and improve information sharing. According to Katie Fleming, director of public engagement and education, Fort Snelling Immigration Court is not an outlier when it comes to access issues.
Fleming said courts in many states have experienced similar issues. In her home city of Sacramento, there have been blanket denials of public access to court buildings, including the news media. Immigration court officials have also accused observers of loitering or soliciting as justification for keeping them out of the courtroom or courthouse hallways, and they have prohibited observers from talking to respondents in the hallways or sharing supporting resources with them.
Fleming said that court restrictions are being enforced inconsistently, even within the same state. To Fleming, these actions serve a clear purpose.
“It is my understanding and my belief that the administration is trying to limit public access to courtrooms because court observers can and will hold them accountable for due process violations,” she said.
Fleming added that court observers can make a tangible impact on cases.
“It can have an effect on the outcome of the case to have folks in the courtroom,” she said. “Whether it helps judges to be on their best behavior or be more thorough or the government attorney to be on better behavior, it is important to have those observers present.”
Observers from The Advocates for Human Rights will continue showing up at Fort Snelling Immigration Court. To Lohman, doing so is a fundamental responsibility of democracy. How much they will be able to see remains unclear.
“If you can’t gather independent verifiable information, then the government gets to say whatever they want about what’s happening and you can’t use the democratic process to hold them accountable,” Lohman said. “You’ve been stripped of your ability to know what’s happening and react.”
