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Letters to the 107th Congress

May 28, 2002

Re: The Immigration Reform, Accountability, and Security Enhancement Act of 2002 (S. 2444)

Dear Senator:

Earlier this month, the Chair and the Ranking Member of the Immigration Subcommittee of the Senate Judiciary Committee, Senator Edward M. Kennedy (D-MA) and Senator Sam Brownback (R-KS), introduced the Immigration Reform, Accountability, and Security Enhancement Act of 2002 (S. 2444). S. 2444 is designed to abolish the Immigration and Naturalization Service (INS) and establish a new Immigration Affairs Agency (IAA). We strongly urge you to support the provisions of S. 2444 that are consistent with the policies of the American Bar Association. They are: (1) Title III on the fair and equitable treatment of unaccompanied alien children; (2) Section 404 on promoting alternatives to detention; (3) Section 402 on providing case information online and electronic filing; and (4) Section 102 on investing the Director with responsibility for inspections.

Unaccompanied Alien Children

Approximately 5,000 foreign-born children enter the United States each year unaccompanied by their parents or other legal guardians. Some of the children are fleeing political persecution, war, famine, abusive families, or other dangerous conditions in their home countries. Due to lack of adequate bed space in immigration facilities, approximately 35% of the children are placed in juvenile jails where they are subject to strip searches, shackles and handcuffs. Upon arrival in the United States, many of these children do not speak English and are not familiar with their rights under U.S. laws. They face a complex web of immigration proceedings as well as the challenge of finding legal assistance. Subsequently, less than half of them are represented by counsel.

U.S. immigration laws do not allow for the appointment of counsel at the government's expense. As a result, unaccompanied immigrant children frequently have no choice but to represent themselves against experienced trial lawyers. This could be an intimidating ordeal for anyone-let alone someone who is unfamiliar with the English language and the American legal system. It is unrealistic to expect children to represent themselves. Fundamental fairness dictates that the playing field should be leveled by appointing counsel to protect the children's interests and to help them exercise their legal rights--both inside and outside of the courtroom. As a result, the Unaccompanied Alien Child Protection Act (S. 121) was incorporated into S. 2444 as Title III on the "Protection of Unaccompanied Alien Children."

As it currently stands, there is an inherent conflict of interest because the INS acts as the caretaker of these vulnerable children at the same time that it seeks to deport them. Title III would eliminate this conflict of interest by creating an independent office of child welfare experts within the Department of Justice (DOJ) called the Office of Children's Services (OCS). OCS, which would be placed within DOJ but outside of IAA, would have an oversight role and ensure that children's interests are respected at all stages of immigration processes and custody. Title III would further provide for pro bono representation of unaccompanied, detained children (and paid counsel as a last resort) to ensure that no child goes unrepresented in his or her immigration court proceedings. Finally, Title III would ameliorate children's access to counsel and conditions of confinement while detained by establishing regulations in these areas and curbing the use of secure detention facilities.

Alternatives to Detention

The ABA firmly believes that immigrants should be detained only under extraordinary circumstances (e.g. the person is a danger to society or a flight risk). However, immigrants and refugees often are detained without bond or individual custody hearings while the government presses administrative deportation charges against them. Since the INS lacks adequate bed space to accommodate many of the immigrants, they often are detained with criminals in state and local jails-sometimes at great distances from their homes and families. Some have lost jobs and their children have been traumatized. Others have spouses who have taken second jobs in order to meet family obligations such as food, clothing and shelter. The detention of immigrants makes it difficult for them to access legal representation and to prepare their legal defenses.

As a result, the ABA supports Section 404 of S. 2444 on "Alternatives to Detention of Asylum Seekers." Section 404 would authorize the Director of Immigration Affairs to promote alternatives to detention for asylum seekers such as parole, non-secure shelter care or group homes, and noninstitutional settings for minors (i.e. foster care or group homes). Section 404 also would permit the Director to promulgate regulations, in order to establish conditions for the detention of asylum seekers that ensure a safe and humane environment. The ABA was instrumental in developing the access provisions of the INS Detention Standards which are being implemented by DOJ, including visitation, group presentations on legal rights, access to legal materials, and access to telephones. While these Standards are a step in the right direction, they lack the force of law and authority that regulations would provide pursuant to Section 404.

Case Information Online

The ABA favors electronic access to governmental information through the Internet at no cost to the user. We also support the electronic filing of documents. For those reasons, we support Section 402 of S. 2444 which addresses the "Application of Internet-Based Technologies." Unfortunately, the INS has been notorious for severe case backlogs over the past several years. It is not uncommon for those who file documents with the INS to languish in limbo while they await reports on the status of their cases.

If people are able to access their immigration case information online, it will reduce the use and/or cost of paper. It also will reduce the costs of other activities associated with the use of paper such as production, handling, distribution, indexing, storage and retrieval. The cost of making case information available online would be minimal in comparison to the benefits that would result. If people were able to access their case information online, it would reduce or eliminate the time-consuming telephone and mail inquiries regarding the status of various cases. The ABA also supports Section 402's provision on conducting a study on the feasibility of online filing, because it would make the process of filing immigration documents more user-friendly.


Under Section 102 of S. 2444, the Director of Immigration Affairs would be entrusted with the inspection of individuals arriving at ports of entry whereas the House-passed bill (H.R. 3231) would relegate this duty to a new enforcement agency. Officers examine arriving individuals and may expel them without a hearing. Since the inspection function combines enforcement and adjudicatory activities, the approach taken in S. 2444 is preferable.

As the world's largest voluntary professional association, with more than 400,000 members, the ABA urges you and your colleagues to become engaged in the effort to restructure the INS by supporting the above reforms.


Robert E. Hirshon
President, American Bar Association

NOTE: On June 6, 2002, President Hirshon addressed the issue of unaccompanied alien children in remarks before the Immigration Judges Conference and provided the judges with a list of "best practices" for immigration proceedings involving alien child respondents.

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