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Posts tagged ‘Immigration Court’

Supreme Court Strikes Down Most of SB1070, Arizona’s Draconian Immigration Law.

The decision struck down three out of four challenged provisions of SB1070. A summary of the decision can be read here. There will be plenty of legal analysis to go around. But to keep it short and as simple as possible, here is the part of the law upheld and the reason why:

Section 2(B) of S. B. 1070 requires state officers to make a “reasonable attempt . . . to determine the immigration status” of any person they stop, detain, or arrest on some other legitimate basis if “reasonable suspicion exists that the person is an alien and is unlawfully present in theUnited States.” Ariz. Rev. Stat. Ann. §11–1051(B) (West 2012).

The court admitted that “Detaining individuals solely to verify their immigration status would raise constitutional concerns…” but then in effect said that it would wait and see whether the application would in fact violate the constitution:

But §2(B) could be read to avoid these concerns. To take one example, a person might be stopped for jaywalking in Tucson and be unable to produce identification…The state courts may conclude that, unless the person continues to be suspected of some crime for which he may be detained by state officers, it would not be reasonable to prolong the stop for the immigration inquiry.

There are a lot of “mays” in the Court’s language. Finally, the court held that 2(b) should remain in effect but offered this cautious language: “This opinion does not foreclose other preemption and constitutional challenges to the law asinterpreted and applied after it goes into effect.”

Immigration enforcement, by its very existence, violates the U.S. constitution on a daily basis. For those who are targeted by ICE, due process protections are severely diminished, even if that person is a U.S. citizen or lawful permanent resident. 2(b) may cause more unlawful detention of persons suspected of being undocumented in the United States.

The Supreme Court, perhaps in a nod to reality, in effect is saying that the United States government is already cooperating at such high levels with local law enforcement that 2b will not change anything.

Justice Scalia Cites to Obama Hypocrisy

Justice Scalia, who would have upheld SB1070 in its entirety, took this grand opportunity to direct a stinging barb at the hyper-political Obama administration. Part of the federal governement’s main challenge to SB1070 was that it would force the federal government to spend its limited budget on lower-priority enforcement targets. Scalia, as a reasonably intelligent being, saw through this argument as pure shenanigans:

It has become clear that federal enforcement priorities—in the sense of priorities based on the need to allocate “scarce enforcement resources”—is not the problem here. After this case was argued and while it was under consideration, the Secretary of Homeland Security announced a program exempting from immigration enforcement some 1.4 million illegal immigrants under the age of 30.4…

The husbanding of scarce enforcement resources can hardly be the justification for this, since the considerable administrative cost of conducting as many as 1.4 million background checks, and ruling on the biennial requests for dispensation that the non-enforcement program envisions, will necessarily be deducted from immigration enforcement.

 Immigrants are being played as pawns from both sides solely for political gain, as the SCOTUS decision on SB1070 clearly reflects.

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.