Lev Kobrin
02-12-2010, 09:17 AM
New Report to ABA Addresses Crisis Within Immigration Removal System
Scores of Reforms Recommended to Improve Adjudication, Lower "Exploding Caseload"
WASHINGTON, D.C., Feb. 2, 2010 — Painting a picture of an overwhelmed immigration court system choked by an “exploding” caseload and an “exponential” increase in outside pressures, a report submitted to the American Bar Association has the ABA considering a host of policy reforms affecting the adjudication system for determining whether to remove noncitizens from the United States.
The new report, “Reforming the Immigration System: Proposals to Promote Independence, Fairness, Efficiency, and Professionalism in the Adjudication of Removal Cases” was prepared pro bono by the law firm of Arnold & Porter LLP. The report represents the opinions of the authors and editors and should not be construed to be those of either the American Bar Association or the ABA’s Commission on Immigration unless and until adopted pursuant to the bylaws of the association. They are set to come to a vote next week.
The nearly 500-page report examines each stage of the immigration removal adjudication system and makes some 60 recommendations for incremental and systemic reform. Designed as a tool for policymakers considering legislative and administrative changes to the immigration system, the study identifies concerns ranging from internal Department of Homeland Security practices to systemic weaknesses within the court’s current structure. Key findings cover six areas of concern and include:
Department of Homeland Security
DHS policies and procedures, along with some substantive provisions of immigration law, have contributed to a marked rise in caseload that has immigration courts handling more than 280,000 proceedings each year.
Law enforcement and other officers, rather than government attorneys, initiate immigration court proceedings.
Prosecutorial discretion is not sufficiently used.
Grounds for removal of noncitizens based on “aggravated felony” convictions have been dramatically expanded, and many cases are handled without court oversight.
Removal proceedings are initiated against noncitizens who are eligible to adjust to lawful permanent resident status.
Immigration Courts
Significant disparities in rates of favorable decisions indicate that respondents’ chances of success are highly dependent upon the judges before whom they appear rather than the merits of their case.
Courts face public skepticism and a low level of respect for the process due in part to their lack of independence from the Department of Justice.
Shortages of judges, law clerks and staff abound, as do systemic problems with how immigration judges are hired, retained or removed.
Each Immigration Judge handles an average of more than 1200 proceedings a year, far more than other federal adjudicators; due to time pressures, judges issue predominantly oral decisions that sometimes are not fully researched or based in law or fact.
Immigration courtroom technology, such as inadequate audio recordings and the increasing use of videoconferencing, may undermine the fairness of proceedings.
Board of Immigration Appeals
“Streamlining” changes led to a seven-fold increase in the number of circuit court appeals over five years (from 2001 to 2006).
The reputation of the Board remains poor, and several circuit judges have leveled scathing critiques against the Board and immigration courts
The Board has been unable to eliminate unsupportable disparities among immigration judges’ decisions.
Remand of cases to immigration judges has declined so considerably that it may be that the Board is not exercising adequate oversight.
Circuit Court Judicial Review
The federal circuit courts of appeals have been faced with an explosion of immigration cases.
The increasing complexity of immigration laws and greater limits on judicial review have led courts of appeals to spend inordinate amounts of time determining the scope of their jurisdiction.
Judicial review of removal orders has not become more efficient or just; instead it is producing more difficulties for unwary and unrepresented noncitizens.
Representation
More than half of respondents in removal proceedings and 84 percent of detained respondents do not have representation.
Lack of adequate representation has a host of negative repercussions, including delays, questionable fairness, increased cost of removal proceedings, and risk of abuse and exploitation by “immigration consultants” and “notarios.”
System Restructuring
Immigration courts and the Board of Immigration Appeals lack independence due to their placement within the Department of Justice.
An independent body responsible for adjudicating immigration removal issues is needed.
The need for restructuring of the immigration court system is at the centerpiece of the study. The report also highlights enormous problems generated by lack of representation for immigrants at every level of the immigration adjudication system, and a very serious lack of staff, technology and other resources.
“Protecting rule of law and due process are values we all share as Americans and they are at the core of ABA advocacy,” said ABA President Carolyn Lamm. “This report focuses on the many ways in which our current immigration adjudication system is failing to meet our national expectations of fairness and effectiveness. We welcome its comprehensive analysis and look forward to considering adoption of its suggestions for reform.”
“The study’s recommendations identify priorities to ensure that our immigration adjudication system is far more modern, transparent, functional and fair,” noted Commission on Immigration Chair Karen Grisez. “Restructuring, Representation, Resourcing, and Professionalism are the priorities to ensuring that our immigration adjudication system accomplishes these central goals.”
Among the report’s key recommendations:
System Restructuring
Three basic options for restructuring were examined: an Article I court, independent agency, or hybrid of the two. The report concludes that an Article I court or an independent agency would be excellent alternatives that offer vast improvements over the current system. Both offer greater independence, fairness and perceptions of fairness, professionalism and efficiency than the current system.
The report recommends the establishment of an Article I court as the preferred option because it is likely to be viewed as more independent, engender the greatest amount of confidence, carry greater prestige in recruiting the highest quality judges, and offer the best balance between independence and accountability.
The new Article I court would have a trial and appellate division, headed by a Chief Trial Judge and Chief Appellate Judge, respectively. The President of the United States would appoint these two officials and all of the appellate judges, with the advice and consent of the Senate, from among persons screened and recommended by a standing referral committee. Other trial judges would be appointed by or with the approval of the Chief Trial Judge.
All judges of the Article I court would serve for fixed terms: in the range of 12 to 15 years for appellate judges and 8 to 10 years for trial judges. They could be removed by the appointing authority only for incompetency, misconduct, neglect of duty, malfeasance, or disability.
The report also offers recommendations on the qualifications of the judges, their supervision and discipline, and ethical standards to be required of such judges.
Finally, the report suggests transitional measures for retaining existing immigration judges and BIA members who are currently employed by the Department of Justice.
Further, for each of the following areas, the study calls for:
Representation
Establishing a right to representation for indigent noncitizens in adversarial removal proceedings and for individuals in groups with special needs. Congress should establish a right to representation at government expense in adversarial proceedings where an indigent noncitizen faces the possibility of removal, is potentially eligible for relief from removal and cannot otherwise obtain representation. For individuals in groups with special needs, including unaccompanied minors and noncitizens with mental disabilities and illnesses, access to government-funded counsel should extend to all immigration proceedings.
Expanding the Legal Orientation Program beyond its current availability to detainees in a limited number of facilities, so that it is established at all detention sites and expanded to immigration courts to reach non-detained persons in removal proceedings.
Modifying the Legal Orientation Program to incorporate screening of all indigent persons in removal proceedings and referring them to individuals or groups who can represent them in adversarial proceedings, using standards developed by the Executive Office for Immigration Review. The recommendations also call for the system to screen all noncitizens to determine whether they belong to one of several vulnerable groups. Further, it calls for an administrative structure to enable the Legal Orientation Program to provide counsel at government expense to noncitizens in some cases.
ïðîäîëæåíèå
Scores of Reforms Recommended to Improve Adjudication, Lower "Exploding Caseload"
WASHINGTON, D.C., Feb. 2, 2010 — Painting a picture of an overwhelmed immigration court system choked by an “exploding” caseload and an “exponential” increase in outside pressures, a report submitted to the American Bar Association has the ABA considering a host of policy reforms affecting the adjudication system for determining whether to remove noncitizens from the United States.
The new report, “Reforming the Immigration System: Proposals to Promote Independence, Fairness, Efficiency, and Professionalism in the Adjudication of Removal Cases” was prepared pro bono by the law firm of Arnold & Porter LLP. The report represents the opinions of the authors and editors and should not be construed to be those of either the American Bar Association or the ABA’s Commission on Immigration unless and until adopted pursuant to the bylaws of the association. They are set to come to a vote next week.
The nearly 500-page report examines each stage of the immigration removal adjudication system and makes some 60 recommendations for incremental and systemic reform. Designed as a tool for policymakers considering legislative and administrative changes to the immigration system, the study identifies concerns ranging from internal Department of Homeland Security practices to systemic weaknesses within the court’s current structure. Key findings cover six areas of concern and include:
Department of Homeland Security
DHS policies and procedures, along with some substantive provisions of immigration law, have contributed to a marked rise in caseload that has immigration courts handling more than 280,000 proceedings each year.
Law enforcement and other officers, rather than government attorneys, initiate immigration court proceedings.
Prosecutorial discretion is not sufficiently used.
Grounds for removal of noncitizens based on “aggravated felony” convictions have been dramatically expanded, and many cases are handled without court oversight.
Removal proceedings are initiated against noncitizens who are eligible to adjust to lawful permanent resident status.
Immigration Courts
Significant disparities in rates of favorable decisions indicate that respondents’ chances of success are highly dependent upon the judges before whom they appear rather than the merits of their case.
Courts face public skepticism and a low level of respect for the process due in part to their lack of independence from the Department of Justice.
Shortages of judges, law clerks and staff abound, as do systemic problems with how immigration judges are hired, retained or removed.
Each Immigration Judge handles an average of more than 1200 proceedings a year, far more than other federal adjudicators; due to time pressures, judges issue predominantly oral decisions that sometimes are not fully researched or based in law or fact.
Immigration courtroom technology, such as inadequate audio recordings and the increasing use of videoconferencing, may undermine the fairness of proceedings.
Board of Immigration Appeals
“Streamlining” changes led to a seven-fold increase in the number of circuit court appeals over five years (from 2001 to 2006).
The reputation of the Board remains poor, and several circuit judges have leveled scathing critiques against the Board and immigration courts
The Board has been unable to eliminate unsupportable disparities among immigration judges’ decisions.
Remand of cases to immigration judges has declined so considerably that it may be that the Board is not exercising adequate oversight.
Circuit Court Judicial Review
The federal circuit courts of appeals have been faced with an explosion of immigration cases.
The increasing complexity of immigration laws and greater limits on judicial review have led courts of appeals to spend inordinate amounts of time determining the scope of their jurisdiction.
Judicial review of removal orders has not become more efficient or just; instead it is producing more difficulties for unwary and unrepresented noncitizens.
Representation
More than half of respondents in removal proceedings and 84 percent of detained respondents do not have representation.
Lack of adequate representation has a host of negative repercussions, including delays, questionable fairness, increased cost of removal proceedings, and risk of abuse and exploitation by “immigration consultants” and “notarios.”
System Restructuring
Immigration courts and the Board of Immigration Appeals lack independence due to their placement within the Department of Justice.
An independent body responsible for adjudicating immigration removal issues is needed.
The need for restructuring of the immigration court system is at the centerpiece of the study. The report also highlights enormous problems generated by lack of representation for immigrants at every level of the immigration adjudication system, and a very serious lack of staff, technology and other resources.
“Protecting rule of law and due process are values we all share as Americans and they are at the core of ABA advocacy,” said ABA President Carolyn Lamm. “This report focuses on the many ways in which our current immigration adjudication system is failing to meet our national expectations of fairness and effectiveness. We welcome its comprehensive analysis and look forward to considering adoption of its suggestions for reform.”
“The study’s recommendations identify priorities to ensure that our immigration adjudication system is far more modern, transparent, functional and fair,” noted Commission on Immigration Chair Karen Grisez. “Restructuring, Representation, Resourcing, and Professionalism are the priorities to ensuring that our immigration adjudication system accomplishes these central goals.”
Among the report’s key recommendations:
System Restructuring
Three basic options for restructuring were examined: an Article I court, independent agency, or hybrid of the two. The report concludes that an Article I court or an independent agency would be excellent alternatives that offer vast improvements over the current system. Both offer greater independence, fairness and perceptions of fairness, professionalism and efficiency than the current system.
The report recommends the establishment of an Article I court as the preferred option because it is likely to be viewed as more independent, engender the greatest amount of confidence, carry greater prestige in recruiting the highest quality judges, and offer the best balance between independence and accountability.
The new Article I court would have a trial and appellate division, headed by a Chief Trial Judge and Chief Appellate Judge, respectively. The President of the United States would appoint these two officials and all of the appellate judges, with the advice and consent of the Senate, from among persons screened and recommended by a standing referral committee. Other trial judges would be appointed by or with the approval of the Chief Trial Judge.
All judges of the Article I court would serve for fixed terms: in the range of 12 to 15 years for appellate judges and 8 to 10 years for trial judges. They could be removed by the appointing authority only for incompetency, misconduct, neglect of duty, malfeasance, or disability.
The report also offers recommendations on the qualifications of the judges, their supervision and discipline, and ethical standards to be required of such judges.
Finally, the report suggests transitional measures for retaining existing immigration judges and BIA members who are currently employed by the Department of Justice.
Further, for each of the following areas, the study calls for:
Representation
Establishing a right to representation for indigent noncitizens in adversarial removal proceedings and for individuals in groups with special needs. Congress should establish a right to representation at government expense in adversarial proceedings where an indigent noncitizen faces the possibility of removal, is potentially eligible for relief from removal and cannot otherwise obtain representation. For individuals in groups with special needs, including unaccompanied minors and noncitizens with mental disabilities and illnesses, access to government-funded counsel should extend to all immigration proceedings.
Expanding the Legal Orientation Program beyond its current availability to detainees in a limited number of facilities, so that it is established at all detention sites and expanded to immigration courts to reach non-detained persons in removal proceedings.
Modifying the Legal Orientation Program to incorporate screening of all indigent persons in removal proceedings and referring them to individuals or groups who can represent them in adversarial proceedings, using standards developed by the Executive Office for Immigration Review. The recommendations also call for the system to screen all noncitizens to determine whether they belong to one of several vulnerable groups. Further, it calls for an administrative structure to enable the Legal Orientation Program to provide counsel at government expense to noncitizens in some cases.
ïðîäîëæåíèå