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Deportation Court: A Court Without Judges

On Sunday, the New York Times wrote an op-ed titled “Deportation Without Representation.”  The article was based on a recent study  showing that immigrants facing deportation in court do not have adequate access to attorneys or are represented by incompetent counsel.

According to the judges’ responses, in nearly half the New York cases, immigrants who had lawyers received inadequate representation. In 14 percent of cases, they said the attorneys’ preparation and knowledge of the law and the facts were “grossly inadequate.”

Part of the reason that immigrants are so woefully underrepresented primarily stems from three root causes: 1. There is no 6th amendment right to counsel in deportation proceedings; 2. Immigrants facing deportation are extremely vulnerable to manipulation by unscrupulous attorneys or non attorneys; and 3. The federal government, which so often provides financing to legal aid organizations spanning many areas of law, is the direct adversary of immigrants in deportation proceedings.

I commend the New York Times for addressing this serious issue, but I would also prefer that they exercise due diligence before making “suggestions” that could mitigate the problem.

The editorial concludes:

The review of all deportation cases before the immigration courts announced last month by the Obama administration should be extended to cases in the federal appellate courts.(emphasis added) Dismissing the many cases at that level that fall outside the administration’s focus on immigrants who have committed serious crimes or pose national security risks could free up competent lawyers for more serious cases. Private foundations and bar associations could also help improve representation by creating programs that put young lawyers to work full time on immigrant issues.

The Times’ first suggestion makes no sense in light of reality. Immigration and Customs Enforcement (ICE) is the government agency that prosecutes cases at the trial immigration court level and in front of the intermediate appellate body, the Board of Immigration Appeals (BIA). The government agency that prosecutes immigration cases at the federal level is not a part of ICE–it is the Office of Immigration Litigation (OIL), which is part of the Department of Justice.

Therefore, the “review” of cases at the federal appellate level would not free up ICE to focus on more serious cases at the trial and intermediate appellate level. Furthermore, asking the government to ignore cases that have gotten as far as the federal appellate court defies basic common sense. Chances are that if a case is being argued at the Circuit Court level, it is because the case is important.

Also, the Times assumes that the Obama administration, which has racked up record deportation numbers, is interested in easing  the plight of underrepresented immigrants. Au contraire, the facts point towards the opposite: without representation, the chances of executing deportations skyrocket. The latter has most certainly occurred.

Instead of lazy suggestions, the Times should point to structural reform, such as that suggested by the Honorable Dona Leigh Marks.


It is widely understood, at least in the United States, that there has to be a balance of powers. A maker of the laws, an enforcer of the laws, and an arbiter of the laws. In most courts throughout the United States, the government entity that prosecutes an individual is separate from the government entity that judges the law. Not so in immigration court.

The immigration court is part of the Department of Justice (DOJ), which is itself a part of the Executive Branch. The prosecutor is part of the Department of Homeland Security, which is also a part of the Executive Branch. Even more alarmingly, the prosecutor at the federal appeals level–the Office of Immigration Litigation–is part of the DOJ. This means that the Department of Justice houses both the prosecutor and the judiciary at the federal appeals level. In effect, the DOJ often works against its own members–the judges in the immigration court.

Ms. Marks suggests that the immigration court system must be structurally reformed*,  providing compelling reasoning:

“The Attorney General continues to  supervise a critical element of the prosecution process, the Office of Immigration Litigation (OIL), which defends immigration cases on behalf of the government in the circuit courts of appeals. This conflict of interest between the judicial and prosecutorial functions creates a significant (and perhaps even fatal) flaw to the immigration court structure, one that is obvious to the public and undermines confidence in the impartiality of the courts.”

The Department of Justice itself declared that Immigration “Judges” are in fact not really judges but:  “Department of Justice attorneys who are designated by the Attorney General to conduct such proceedings, and they are subject to the Attorney General’s direction and control.”

This de facto absence of a true judiciary when such fundamental rights are at stake certainly is worth mentioning by the NY Times when penning an article titled “Deportation without representation.” If the system itself is rotten, even comptent and upstanding attorneys cannot adequately advocate for their clients’ rights in many instances.

This issue, like so many others related to immigration, is widely misunderstood by the general public. Undoubtedly, part of this misunderstanding stems from media outlets’ unwillingness to competently research and explain complex immigration issues. Journalism, as far as I understand it, should require more than a perfunctory gleaning of the facts. Sadly, this is far more often the case than not. Justice does not sell, after all. Entertainment does.

*Judge Marks suggests that Immigration Court be made an Article I Court, similar to how the Tax Courts, Bankruptcy Courts, and Court of Federal Claims are structured. The principal difference is that if Marks’ suggestions are heeded, all trial level immigration court cases would be directly reviewed by a Federal Court of Appeals or Federal District Court. This would then result in Immigration Judges’ being held accountable by the Circuit Court of Appeals, not the Department of Justice. Therefore, improper political pressures upon Immigration Judges would be alleviated and restore some semblance of a fair trial.

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