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Posts tagged ‘Immigration Court’

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.

The overstuffed immigration court system: easing backlog through prosecutorial discretion

Immigration courts are often packed beyond their capacity, similar to this pictured suitcase.

The sharp increase in this administration’s deportation of immigrants, the vast majority non-criminals, is already reflected in the court system’s growing backlog. The newest report by the Transactional Access Records Clearinghouse (“TRAC”) found that the backlog in immigration continues to grow, rising 4.2% only since January 2011. The report also found that only 8.3 of the pending caseload involved people charged with criminal offenses, national security or terrorism cases.  In New York, less than 4% of cases involved criminal charges.  A shocking 91% of the backlog consists of immigrants charged with violating immigration rules, such as entering the country illegally, overstaying their visas, etc.  As a result, in New York, it takes on average 508 days to resolve an immigration court case, according to the TRAC report (and that number is rapidly rising).  From personal experience, I know there are a number of senior judges at 26 Federal Plaza that do not even have final hearings available in their calendars before 2014.

This should make a great case for prosecutorial discretion, which is Immigration and Customs Enforcement (“ICE)’s power to terminate immigration cases based on equities, including family ties to U.S. citizens and legal permanent residents, length of presence in the U.S., medical problems and disabilities, and much more.  The standards for prosecutorial discretion have been outlined in ICE legal memoranda dating back to the 70’s, with most recent memos from June 17 and November 17, 2011.  Why, then, are these guidelines being implemented inconsistently – and at times even facing resistance by the people charged with carrying out the policies?  Certainly, the country needs to wake up from the dream that illegal immigration will go away, and recognize the individuals that should remain here so that we can focus our valuable and limited resources on immigrants with a serious criminal record or who pose a national security threat – both of which has become less and less of a priority, as far as the numbers are concerned.

Unfortunately, prosecutorial discretion is not a long term solution.  Even when cases are terminated, these immigrants remain in limbo, without work authorization.  While cases are often terminated based on peoples’ excellent employment record (and many immigrants in court proceedings are work authorized based on a pending immigration case), taxpayer status, being the sole or primary supporters of their families, and contributing to their community, once the case is actually terminated they are left unable to renew their work authorization.  Creating a population of immigrants who are financially dependent, or working unlawfully off the books, is not good public policy.  Since these individuals have become visible by going through the legal process, it makes a lot more sense to keep track of all of them and issue them employment authorization, having recognized that we will not have the resources nor the will to prosecute them in the near future. Meanwhile, we continue to wait for immigration to tie up loose ends and develop a sound and consistent policy on prosecutorial discretion.

Report: Obama Misrepresenting Deportation Statistics

A report by TRAC released on December 5, 2011 reveals that the Obama Administration has been blatantly misrepresenting deportation statistics in an effort to minimize the ugly fact that he is deporting non criminals in record numbers. The statistics were obtained through a FOIA request made to the Department of Justice (DOJ), a government agency that is separate from the Department of Homeland Security. (DHS)

In deportation proceedings initiated during July-September 2011 by the Immigration and Customs Enforcement (ICE) in the nation’s 50 plus immigration Courts, only 7,378 individuals–just 13.8 percent of the total–were charged with having engaged in criminal activities. Of those targeted, the proportion of alleged “criminals” is down significantly from the already low level of 16.5 percent during FY2010.

This report demands questions of the Obama administration’s representations on immigration enforcement. In fact, Obama even felt it necessary to have Cecilia Munoz pen an article with the title: “In the Debate Over Immigration and Deportation, the Facts Matter.” In that article, the following statistics were provided:

  • There was a greater than 70% increase in the deportation of those with criminal records from FY2008 to FY2010, and a decrease of those without criminal records.
  • Today more than half of all removals are people with criminal records.
  • And among those removed who had no criminal records, more than two thirds were either apprehended as they crossed the border, were recent arrivals, or were repeat violators of immigration law, meaning that they had previously been deported.

Yet curiously DHS  has refused to provide the same records that DOJ just released. Trac explains:

TRAC’s findings appear to contrast sharply with the White House’s announcementthat: “Under the President’s direction, for the first time ever the Department of Homeland Security has prioritized the removal of people who have been convicted of crimes in the United States.” The findings also are hard to reconcile with ICE’s recent press statements that claimed that during the past year the agency had targeted a large and increasing number of convicted criminals for deportation.

Unfortunately, while the agency could easily clear up these apparent discrepancies it has chosen not to do so. Indeed, for twenty months, in clear violation of public disclosure laws, ICE has persisted in withholding from TRAC the case-by-case data TRAC requested under FOIA that the agency maintains on these same court proceedings — information precisely parallel to what the Department of Justice already determined must be released to the public from its own files. DHS and other government offices have failed to rectify this matter despite TRAC’s appeals to DHS’s Director of Disclosure and FOIA Operations, as well as to the Office of Government Information Services (OGIS). (emphasis added)

The records ICE is withholding would show just which ICE programs — such as Secure Communities or others — have contributed to fewer alleged criminals being targeted for deportation in court proceedings. The data would also allow the public to judge whether ICE’s actual activities match ICE’s announced policies to target serious criminals, and those who pose threats to public safety, as well as to better monitor how the agency exercises prosecutorial discretion in whom it seeks to deport.

In addition, TRAC contacted ICE’s Public Relations office on November 7, 2011 asking for explanations of the figures given in the agency’s October 18, 2011 press releasethat claimed the agency’s FY 2011 accomplishments closely matched announced ICE priorities. At a meeting with ICE officials November 10, the agency promised to promptly provide answers to a series of TRAC questions that asked for details backing up the agency’s claims. Again and again, however, the promised answers did not materialize. ICE’s Public Affairs office continues to say the promised answers will be forthcoming.

Regardless of whether one is an advocate for comprehensive immigration reform, the stark discreprancies between what this report shows and what the Obama administration says should be of concern to everyone.

For example, is the administration overtly lying to the American public? Does ICE really  prioritize deportations, or do they randomly deport whomever may come across their path? The hard facts–those revealed from Department of Justice Records rather than the voice of bureaucrat–suggest the worst: the administration is lying to the public and simply deporting as many people as it can, irrespective of their own purported rationale for focusing resources on the biggest and baddest illegals.