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ABA Supports Retooling Immigration Court System

By Lisa R. Bliss, Litigation News Associate Editor – April 19, 2010

The ABA House of Delegates has voted to support a proposal that would eliminate the existing overburdened immigration court system and create a new, independent immigration court.

The Proposal
A proposed new Article I court system [PDF] would hear both trials and appeals of immigrant removal cases. The House of Delegates also approved specific proposals designed to create a more professional, independent, and accountable immigration judiciary.

The recommendations to overhaul the immigration court system came from a 500-page report prepared for the ABA Commission on Immigration, entitled, “Reforming the Immigration System: Proposals to Promote Independence, Fairness, Efficiency, and Professionalism in the Adjudication of Removal Cases.”

The report was a pro bono project of Arnold & Porter, LLP. The report examines each stage of the immigration removal adjudication system and makes recommendations for incremental and systemic reform.

“Existing immigration courts are not doing as good a job as they should in providing fair decision making and due process,” the report’s Executive Summary [PDF] notes. Among the findings contributing to the problem are disparities in decisions, public skepticism stemming from the court’s lack of independence from the Department of Justice, shortages of judges and support staff, judicial bias, and high levels of stress and burnout.

The report also expresses concern about the oversight of the current immigration court system by the U.S. Department of Justice.

“In the immigration courts, where you have foreign nationals interacting with the U.S. system of justice, our legal system should shine and reflect the best of the United States,” opines Peter F. Asaad, Washington, D.C., cochair of the ABA Section of Litigation’s Immigration Litigation Committee.

“Courts and their judges are supposed to be neutral arbiters of the law. When they are subject to reprimand, change, or competing for resources with unrelated interests, they are weakened and become less efficient, accountable and transparent, and the public loses confidence in them,” says Asaad.

The proposal supported by the House of Delegates would restructure the current system to remove immigration courts from the Department of Justice and create independent courts pursuant to Article I of the Constitution. Such a proposal would remove control of the immigration court system from the Attorney General.

Transition to an Article I system would be a welcome change according to some immigration litigators.

“One of the biggest frustrations I have, as an immigration lawyer, is that most cases are adjudicated in the administrative context,” says Thomas K. Ragland, Washington, D.C., member of the Section’s Immigration Litigation Committee.

“Federal court review is limited in immigration cases, and where it does exist, review is very deferential,” he says.

“It is an extremely rare case that makes it to the Supreme Court, so we should not be relying on that as a check and balance,” says Ragland.

However, Ragland acknowledges that the problems are caused not only by the structure of the system but also by an overwhelming case load and lack of resources.

The report also notes that each immigration judge handles an average of 1200 proceedings per year, and there is a severe shortage of judges, law clerks, and staff. Judicial vacancies, multiple continuances, and exploding case numbers have resulted in a 439-day backlog, says Asaad.

In addition to supporting the creation of a new Article I court system to hear trials and appeals of immigrant removal cases, the House of Delegates called for other changes to the immigration adjudication process. It urged the Department of Homeland Security to implement procedures to enhance fairness and efficiency in removal proceedings and restore review of immigration cases by federal judges.

Keywords: litigation, Article I, immigration court system, removal


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