American Bar Association: Deportation System “Severely Flawed“

American Bar Association: Deportation System "Severely Flawed"

The number of people deported from the US annually has grown from just over 69,000 to over 356,000 in the past eight years, while resource-starved immigration judges issue decisions without sufficient time to conduct legal research and analyze the complex cases they are asked to decide.

This is among the key findings of a new comprehensive review of the current deportation process by the American Bar Association’s (ABA) Commission on Immigration and one of America’s leading law firms.

The study concludes that the removal (deportation) system “is severely flawed and fails to afford fair process to all non-citizens facing deportation from the United States.”

It said, “There is strong evidence that (legal) representation affects the outcome of immigration proceedings.” But in 2008, it continued, 57 percent of people in removal proceedings were not represented. Of those in detention, 84 percent were forced to proceed without lawyers.

“Not only are many people unable to afford counsel, but remote detention facilities, short visiting hours, restrictive phone access, and transfers all have a devastating effect on a non-citizen’s ability to retain counsel and maintain an attorney-client relationship.”

Among other findings: The “tremendous increase” in deportations “has not been met with commensurate resources.”

Immigration judges completed on average 1,243 cases per year. In comparison, veterans’ law judges decide about 729 cases annually, of which only 178 involve hearings, and Social Security Administration administrative law judges decide about 544 cases each year.

“Given the overwhelming case load and the lack of adequate support staff, immigration judges primarily issue oral decisions, meaning that decisions are made without sufficient time to conduct legal research and analyze complex legal and factual issues,” the study found.

The study, carried out with the law firm of Arnold and Porter, found “stark disparities” between the rates of asylum grants among immigration judges and, as a result, “a non-citizen’s success in immigration court may depend to a troublesome extent upon which judge is assigned his or her case.”

Most Board of Immigration Appeals cases are decided by a single member, as opposed to the past practice of using three-member panels to decide cases. This change has resulted in fewer decisions favoring asylum seekers.

Most decisions are “short opinions” that fail to provide a sufficient explanation for the decision. The rate at which noncitizens are appealing Board decisions to the federal courts has increased from 9.4 percent in 2002 to 26.7 percent in 2008. In 2008, noncitizens filed more than 10,000 federal court appeals of Board decisions.

The absence of counsel, the overwhelming dockets, the lack of adequately explained and reasoned decisions and the disparities among judges’ decisions are just a few of serious problems plaguing the removal system, the study declared.

Karen T. Grisez, chair of the ABA Commission on Immigration, told Truthout, “This is the most comprehensive study that has ever been done of the immigration removal adjudication system, beginning with the decision of who should be put into removal proceedings and running through the appeals process.”

She said its recommendations “include steps that could be undertaken immediately to improve the operation of the system, others that would require changes in the law to enhance the fairness of the process, and finally urges a redesign of the entire system that would make the immigration judges independent of the Department of Justice.”

The ABA’s House of Delegates voted last Monday to adopt several policies based on the recommendations in the new study. They include an increase in the number of immigration judges and board members, greater resources to support them and an expectation of more detailed, written decisions. The House also voted in favor of the recommendation for an Article I court or an agency independent of the Department of Justice to decide on immigration matters.

Beth Werlin, litigation clearinghouse attorney at the American Immigration Council’s Legal Action Center, said, “These problems not only diminish the public’s confidence in the system, but even worse, they compromise the statutory and constitutional guarantee of fair process for each person facing removal.”

The ABA’s findings are supported by a study conducted by the Transactional Records Access Clearinghouse (TRAC) at Syracuse University. That study concluded that the announced goal of a broad Justice Department project to improve the performance of the immigration courts – started during the Bush administration, but now a continuing challenge for President Obama – “has failed to achieve many of its ambitious purposes.”

This mixed verdict is based on the actual improvements so far realized in the operations of the immigration court system after a three-year Justice Department effort.

The TRAC study found that the annual number of deportation cases brought in the nation’s federal courts more than quadrupled during the eight years of the Bush administration. It reported that the September 2008 total of 11,454 immigration prosecutions represented an increase of over 700 percent from the same month seven years earlier, September 2001.

The study reported that in fiscal year 2008, Department of Homeland Security (DHS) officers apprehended at least 791,568 deportable noncitizens, initiated 291,217 removal proceedings in the immigration courts against noncitizens, detained 378,582 noncitizens and effected the deportation of 358,886 noncitizens.

The study said, “Immigration lawyers, civil rights advocates and some members of Congress have for many years been concerned about the operation of the Immigration Courts that are now a part of the Justice Department.

But, beginning in 2002, a change in EOIR (Executive Office for Immigration Review) court procedures ordered by then Attorney General John Ashcroft resulted in a stream of unfavorable decisions by appellate level judges in different parts of the country.

It noted that Ashcroft’s successor, Attorney General Alberto Gonzales, then ordered the Justice Department to undertake a special study of the EOIR. Following that study, Gonzales issued a directive In August 2006 listing 22 specific measures for change and improvement.

But he was trying to change a system of immigration judge’s appointments that was often based on deeply entrenched party political loyalties and personal friendships. The politicization of the immigration bar and the unexplained firing of a number of US attorneys were major factors in bringing about Gonzales’s resignation under fire in August 2007.

The TRAC study said the EOIR “has fallen far short of hiring the additional judges that the Justice Department had initially said were required; continues to hire judges without immigration law experience while available evidence indicates that comprehensive training in this complex legal area is not provided; has failed to provide evidence that it has established a system for seriously testing the immigration law knowledge of judges; has still not developed a judicial code of conduct or established a standardized system for handling complaints regarding the professional conduct of existing immigration judges; and has not worked out procedures to provide the judges the sanction authority they need to control their courtrooms.”