https://www.nilc.org/wp-content/uploads/2021/03/USCA-key-provisions-summary.pdf
Here’s the section relating to the Immigration Courts:
Title IV: Immigration Courts, Family Values, and Vulnerable Individuals
We are facing a due process crisis in the immigration courts. Nearly 1.3 million cases are currently pending in a structurally flawed system housed within a
prosecutorial agency, the U.S. Department of Justice (DOJ).4 While this bill
4 https://trac.syr.edu/immigration/reports/637/.
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falls short of creating an independent Article I immigration court,5 provisions in the bill would improve court operations and enhance due process protections for individuals facing highly complex immigration court proceedings that
often raise issues of life and death.6 Even though representation is often
the single greatest factor in determining whether an individual will obtain relief in removal proceedings,7 low-income immigrants and people in immigration detention face significant barriers to obtaining counsel. This bill calls for expanding alternatives to detention and authorizes funding for the appointment of counsel for children and vulnerable noncitizens. Provisions in this bill also provide for an expansion of DOJ’s Legal Orientation Program and greater access to legal information for immigrants who are not
detained. These are important steps in the right direction, but the bill falls short of ending civil immigration detention and establishing a much-needed universal representation program.8
Judicial diversity encourages fair decision-making, but DOJ’s Executive Office for Immigration Review (EOIR) has a long history of politicized
hiring,9 resulting in a supermajority of judges on the bench who have prosecutorial backgrounds. This bill calls for the hiring of additional immigration judges (IJs) and Board of Immigration Appeals (BIA) members who are experts in immigration law, and it encourages the hiring of IJs who have diverse experience, including people from the private sector. The bill also requires EOIR to conduct mandatory continuing legal and diversity training for IJs and BIA members. Additional steps must be taken to ensure critical oversight into the hiring process, promote diversity, and eliminate harassment in the immigration courts.10
Also included in this bill are provisions to protect vulnerable individuals. The bill eliminates the one-year filing deadline for asylum claims and increases access to employment authorization for people seeking asylum and for U and T visa applicants, ensuring that vulnerable populations seeking refuge in the U.S. will be able to work and support their families while their immigration cases are pending.
5 https://www.aila.org/advo-media/aila-correspondence/2020/advocates-call-on-congress-
establish-independent.
6 https://www.washingtonpost.com/opinions/im-an-immigration-judge-heres-how-we-can-fix-our-
courts/2019/04/12/76afe914-5d3e-11e9-a00e-050dc7b82693_story.html.
7 https://bit.ly/3q310Uh.
8 https://www.vera.org/advancing-universal-representation-toolkit/the-case-for-universal- representation-1.
9 https://www.whitehouse.senate.gov/news/release/senators-press-barr-on-politicization-of- justice-department-administration-of-immigration-courts.
10 https://www.sfchronicle.com/politics/article/Sexually-inappropriate-behavior-runs-rife-
in-15889003.php.
FEBRUARY 2021
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The bill calls for expanding alternatives to detention and authorizes funding for the appointment of counsel for children and vulnerable noncitizens.
X Provides for appointing counsel for children and vulnerable noncitizens. Authorizes funding for and requires DOJ to appoint or provide counsel
for children, vulnerable individuals, and other people where necessary. Requires DHS to provide copies of their immigration files to individuals who are in immigration court proceedings.
X Requires access to legal orientation programs and access to counsel. Requires legal orientation programs to be available for all noncitizens in immigration detention. DHS must provide access to counsel inside all immigration detention facilities and border facilities.
X Increases access to legal information. Expands the help desk program
to all immigration courts, providing non-detained individuals who have pending asylum claims access to information related to immigration status. Requires DHS to provide copies of their immigration files to people who are in immigration court proceedings.
X Expands alternatives to detention. Expands the family case management program and requires DHS to develop additional community-based programs. People enrolled in these programs will receive legal orientations.
X Increases immigration court hiring. Requires DOJ to increase the number of IJs on the bench, hire additional BIA staff attorneys, and provide sufficient support staff. In hiring the new IJs and BIA members, DOJ is instructed to select people from diverse backgrounds, including from the nonprofit sector and the private bar and people with academic experience.
X Expands training for IJs and members of the BIA. Requires the EOIR
to conduct mandatory training for IJs and members of the BIA, including continuing legal training and training on age, gender, and trauma sensitivity.
X Directs EOIR to modernize technology. Requires the EOIR director to modernize electronic systems, including by allowing electronic filing, to improve court proceedings.
X Eliminates barriers to asylum and protects vulnerable populations. Removes the one-year time limit for filing an asylum claim. Increases protections for U visa, T visa, and VAWA applicants by providing them with a rebuttable presumption of release from detention and prohibiting the removal of these applicants from the U.S. while an application is pending. Increases the number of U visas, which are available to some crime victims, from the current cap of 10,000 to 30,000 per year.
FEBRUARY 2021
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In hiring new IJs and BIA members, DOJ is instructed to select people from diverse backgrounds, including from the nonprofit sector and the private bar and people with academic experience.
X Increases access to employment authorization for people seeking U and T visas and protection under VAWA. People seeking U and T visas shall and must be granted employment authorization on the date their application is approved or a date to be determined by the DHS secretary within 180 days of submitting their petition, whichever is earlier. Employment authorization is issued for two years, with the possibility of renewal.
X Increases access to employment authorization for people seeking asylum. Provides that DHS shall grant employment authorization to bona fide and non-detained asylum-seekers within 180 days after they file their asylum application with DHS or DOJ.
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The improvements to the Immigration Courts are all helpful. But, as the NILC points out, they fall short of what’s really needed: An independent Article I Immigration Court. One thing the bill does address, lack of diversity and immigration/human rights expertise among EOIR judicial hires (over the past three Administrations) is a glaring problem and hinderance to achieving due process and fundamental fairness.
Thanks to my friend and NDPA superstar Laura Lynch, Senior Immigration Policy Attorney at the NILC for passing this along.
⚖️🗽🇺🇸🧑🏽⚖️Due Process Forever!
PWS
03-03-21