- December 2013 Issue
- Immigrants face numerous hurdles as they struggle to navigate the legal process
Immigrants face numerous hurdles as they struggle to navigate the legal process
Posted Dec 1, 2013 5:00 AM CST
By James R. Silkenat
Immigration law is a significant focus of the American Bar Association. Many of our members handle immigration matters exclusively or work on such issues as part of their practices in other areas. Several committees throughout the ABA provide the latest information and education on immigration law.
The ABA also devotes considerable resources to this area as an issue of justice. As our nation debates the need for immigration reform, lawyers committed to the rule of law can agree on one thing: It is unacceptable that matters of life and liberty are decided in our system of immigration justice without the most basic protections that we expect in American courts.
Immigrants have no right to appointed legal counsel. A child can be brought before a judge, asked legal questions and face deportation to a possibly dangerous country, all without a lawyer or a guardian present.
Half of those in immigration proceedings lack legal counsel, despite the efforts of many lawyers to provide free legal advice. Some of the more than 400,000 foreign nationals detained annually are asylum seekers with well-founded fears of persecution.
Many immigrants who represent themselves and face deportation do not understand the nuanced laws, language and procedures of immigration court. This results in costly, unjust delays—with more time spent in court and in detention—that access to a lawyer could avoid.
The ABA Commission on Immigration houses the association’s expertise on immigration justice issues. The commission developed the ABA’s Civil Immigration Detention Standards, which outline how a civil immigration detention system should operate. The standards offer a framework for policymakers to reform the current immigration detention system.
The commission also runs programs that promote access to justice in the immigration court system by providing pro bono legal services and know-your-rights educational programs for detainees. Among them is the Immigration Justice Project of San Diego, which I visited in September. The project recruits, trains and mentors volunteer lawyers to represent detainees. The commission sponsors a similar project near the South Texas border.
Another commission initiative helps protect the public against immigration fraud. Individuals who bill themselves as “notarios” or “immigration consultants” are not licensed lawyers and are therefore unqualified to offer legal advice. The commission’s Fight Notario Fraud project provides lawyers with information on taking action against notarios, offers a depository of pleadings and other forms to report or pursue a case against an immigration consultant, and refers fraud victims to pro bono litigation and consumer protection lawyers.
Immigration reform holds the promise not only of promoting justice but also of advancing the nation’s economic interests. Foreign nationals who hope to create a business in the U.S. often must have family connections here, have another job lined up or be immensely wealthy. Even the brightest foreign students graduating from U.S. universities cannot obtain continuing visas and are forced to leave the United States, taking their knowledge and ideas with them.
The emergence of this problem led the ABA House of Delegates to adopt policy that supports creation of a special startup visa for immigrant entrepreneurs. The ABA also backs legislation that would provide more visas for talented foreigners with skills needed to improve the U.S. economy.
Startup visas and other reforms are included in proposals for federal comprehensive immigration reform that would enhance fairness and efficiency in the immigration system. Our nation needs realistic immigration reforms that address the staggering monetary, legal and moral costs of enforcement and detention. We must fix this broken system that saps our treasury and undermines our justice system and our economy.
This article originally appeared in the December 2013 issue of the ABA Journal with this headline: "Coming to America: Immigrants face numerous hurdles as they struggle to navigate the legal process."