The American Bar Association is proposing a major overhaul of the US immigration system, calling the courts that decide whether to deport immigrants “irredeemably dysfunctional.”
“The immigration courts are facing an existential crisis,” the association says in a report released Wednesday. “The current system is irredeemably dysfunctional and on the brink of collapse.”
The only way to fix “serious systemic issues,” the report argues, is to create what’s known as an Article I court. Akin to tax or bankruptcy courts, this would be a court that’s independent from the Justice Department.
It’s an idea that’s been proposed before by advocates and immigration judges. And the American Bar Association listed a similar proposal as an option for reform in a 2010 report on the US immigration system.
Its report on Wednesday warns that recent policy changes have made a system that was already stretched at the seams even worse.
“The state of the U.S. immigration court system has worsened considerably since our 2010 report,” this report notes, specifically mentioning an unprecedented backlog of cases, increased wait times, policy changes that aim to accelerate cases without allocating enough funding, over-reliance on video teleconferencing during court proceedings and possible bias in the hiring of judges.
The Justice Department, which runs US immigration courts, did not immediately respond to a request for comment on the ABA report.
But the department has previously addressed some of the issues the ABA report raises.
Federal office says progress being made
In a response to questions from Sen. John Cornyn last year, the director of the Justice Department’s Executive Office for Immigration Review said the department opposes making immigration courts Article I courts.
“The financial and logistical hurdles … would be monumental and would likely delay existing cases even further,” James McHenry wrote.
And in recent congressional testimony, McHenry said that “considerable progress” had been made in restoring his office’s “reputation as a fully functioning, efficient and impartial administrative court system capable of rendering timely decisions consistent with due process.”
McHenry noted that his department had increased its number of case completions for the third consecutive year. And he said that every day, the office decides immigration cases “by fairly, expeditiously and uniformly interpreting and administering the nation’s immigration laws.”
Members of the bar association’s immigration commission, who authored the report, warned Wednesday that officials have become overly focused on speed and are overlooking the importance of due process.
“While our current immigration system is confronting substantial challenges with respect to delays and backlogs, we would all agree, we must never lose sight of the tenets that underpin our legal system and reflect this country’s values,” said Wendy Wayne, who chairs the commission. “The rights that our laws provide to those subject to our immigration system, those cannot be sacrificed in the name of efficiency.”
The report also alleges that judicial independence has been called into question “with a resurgence of alleged politicized hiring and the adoption of policies that arguably undermine immigration judges’ ability to perform their role as a neutral arbitrator of fact and law.”
In response to allegations of politicized hiring, a Justice Department official said that at least 51 immigration judges hired under the Trump administration received conditional offers for the positions while President Barack Obama was in office.
Bar association reiterates recommendations
The bar association’s report lists more than 100 recommendations, including when video conferencing should be used in court and rescinding the recently imposed quotas and metrics used to evaluate immigration judges. Many of the recommendations were also made in 2010 but were not followed, the report acknowledges.
“There have been virtually no new immigration laws addressing issues covered by the 2010 Report, and few of the 2010 recommendations were adopted by either the Obama or the Trump administrations,” it says. “At the same time, certain policies that were in place at the time of the 2010 Report and that promoted the fairness, efficiency, and due process of the immigration system have been undermined.”
This time around, the association says it’s recommending “more drastic reforms.”
“Recent political and legal developments have exposed the fragility of our administrative systems,” the report says. “Today, our immigration courts and other adjudicative systems face untenable backlogs, yet efforts to reduce those backlogs have been largely ineffective, or, at worst, counterproductive to the goals of an independent judiciary.”
More than 800,000 cases are currently pending in US immigration courts, according to the Transactional Records Access Clearinghouse at Syracuse University. At the time of its 2010 report, the ABA says there were about 262,000 cases pending.
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