Category: Migration Policy Institute (“MPI”)

http://cmsny.org/publications/jmhs-immigration-adjudication/

Here’s an Executive Summary of Lenni’s article in the Journal on Migration and Human Security:

“The United States spends more than $19 billion each year on border and immigration enforcement.[1] The Obama administration removed more people in eight years than the last four administrations combined.[2] Yet, to the Trump administration, enforcement is not yet robust enough. Among other measures, the administration favors more expedited and summary removals. More than 80 percent[3] of all removal orders are already issued outside the court process: When the Department of Homeland Security (DHS) uses summary removal processes, both access to counsel and an immigration judge can be nearly impossible. Advocates and policy analysts are equally concerned that a backlog of over 545,000 immigration court cases creates delay that harm people seeking asylum and other humanitarian protection. Recent use of priority or “rocket” dockets in immigration court and lack of appointed counsel also interfere with the fair adjudication of claims. Thus the administrative removal system is criticized both for being inefficient and moving too slowly, on the one hand, and for moving too quickly without adequate procedural safeguards, on the other. Both critiques have merit. The challenge is to design, implement, and most critically, maintain an appropriately balanced adjudication system.

While it is clear that US removal procedures need reform, process alone will not be able to address some of the systematic flaws within the system. Ultimately, the DHS will need to refine and prioritize the cases that are placed into the system and the government needs new tools, widely used in other adjudication systems, that can reduce backlogs, incentivize cooperation, and facilitate resolution. Congress should similarly reexamine the barriers to status and avenues for regularization or preservation of status. The paucity of equitable forms or relief and the lack of statutes of limitation place stress on the immigration court system. The lack of appointed counsel has a dramatic impact on case outcomes. Without counsel, the rule of law is barely a constraint on government authority. Conversely, a system of appointed counsel could lead to efficiencies and to a culture of negotiation and settlement within the immigration court system.

DHS has increasingly used every tool in its arsenal to expeditiously remove people from the United States and most of these tools bypass judicial hearings. In these “ministerial” or expedited forms of removal, there is no courtroom, there is no administrative judge, and there are rarely any opportunities for legal counsel to participate. Moreover, there is rarely an opportunity for federal judicial review. In these settings, the rule of law is entirely within the hands of Immigration and Customs Enforcement (ICE) or Customs and Border Protection (CBP) officers who serve as both prosecutor and judge. There is little record keeping and almost no avenue for administrative or judicial review. This paper will argue that the rule of law is missing in the US removal adjudication system, and will propose ways in which it can be restored.

DOWNLOAD

[1] In fiscal year (FY) 2016, the budget for CBP and ICE was $19.3 billion. See analysis by the American Immigration Council (2017a) about the costs of immigration enforcement. The budget for the immigration court has grown only 30 percent in comparison with a 70 percent increase in the budget of the DHS enforcement.

[2] Taken from Obama removal data and comparison to past administrations (Arthur 2017).

[3] The DHS does not routinely publish full statistical data that allows a comparison of the forms of removal. In a recent report by the Congressional Research Service, the analyst concluded that 44 percent were expedited removals as described below, and an additional 39 percent were reinstatement of removals — 83 percent of all orders of removal were outside the full immigration court system (Congressional Research Service 2015).”

******************************************

And, here’s Lenni’s conclusion:

“Conclusion — A Dark Territory

Immigration law operates in the darkness beyond the reach of due process protections, accuracy, fairness, and transparency. Record numbers of immigrants live in the United States, but far too often they reside in a legal territory which the light does not reach. This essay has highlighted some of the characteristics of the US removal system. It outlines this system’s lack of substantive protections and its overreliance on hidden and expedited processes. It argues that this system needs to be redesigned to reflect the rule of law. The system needs to be exposed to the light of day.”

*****************************************

Here is a link to Lenni’s complete article: Benson on Rule of Law.

*******************************************

Before Jeff Sessions became the Attorney General, I wrote, with totally unjustified optimism and charity, that he could be the one person in Washington who could fix the due process problems in the U.S. Immigration Courts during the Trump Administration. http://wp.me/P8eeJm-ai.

But, sadly, it is now clear that Sessions, as his critics had predicted, is in fact “Gonzo-Apocalypto” — a relic of the past, wedded to a white nationalist, restrictionist, effectively racist (regardless of “actual intent”), anti-immigrant agenda.

So, there is no practical chance of the necessary due process reforms being made during the Trump Administration. Consequently, the “Gonzo-Apocalypto Agenda” will almost certainly drive the U.S. Immigration Court system into the ground. This will likely be followed by  a “de facto receivership” of the Immigration Courts by the Article III Courts.

But, at some point in the future, the U.S. Immigration Court will “re-emerge from bankruptcy” in some form. Hopefully, those charged with running the reorganized system will remember the thoughtful ideas of Professor Benson and others who care about due process in America.

PWS

04-30-17