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Immigration Law

ABA Commission Proposes Independent Court to Help Fix ‘Broken Immigration System’

Posted Feb 2, 2010 10:07 AM CDT
By James Podgers

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Karen T. Grisez
Jensen Larson Photography

A sweeping report released this morning by the ABA Commission on Immigration proposes the creation of an independent structure for hearing cases involving immigrants facing removal from the United States to replace the system that currently operates out of the Justice Department.

"The ABA commissioned this study as our country considers how to overhaul our broken immigration system,” said ABA President Carolyn B. Lamm, a partner at White & Case in Washington, D.C. “This thoughtful analysis of the adjudication system’s problems will help frame the debate as our nation’s leaders move forward."

Lamm is presenting the report, titled Reforming the Immigration System, at a news briefing this morning in Washington with commission chair Karen T. Grisez, and representatives of Arnold & Porter. More than 50 lawyers and staff members at the firm’s offices in Washington, New York City, Denver, Los Angeles and San Francisco spent more than a year researching and writing the report for the commission on a pro bono basis.

Under the current system, 231 judges sit in 57 immigration courts maintained by the Executive Office for Immigration Review in the Justice Department. The Board of Immigration Appeals also is based in the Justice Department. These courts decide administrative removals, asylum applications, immigration detention cases and other matters involving noncitizens seeking to stay in the United States.

The Department of Homeland Security is charged with prosecuting removal proceedings, managing the immigration detention system and other aspects of enforcing U.S. immigration law. Decisions of the Board of Immigration Appeals may be heard by the federal circuit courts of appeal.

In recent years, “The pressures on the system have grown exponentially as the number of people trying to enter and stay in the United States has increased and as political forces and security concerns have resulted in heightened efforts to stem the flow and remove undocumented noncitizens from the country,” states the executive summary (PDF) of the ABA Commission report.

In considering alternatives to the current system, the Immigration Commission voiced a preference for the creation of independent tribunals by Congress under its Article I powers in the Constitution. Another viable alternative would be to create an independent adjudicative agency in the executive branch, states the report. The commission slightly favors independent tribunals because they would be most likely to be viewed as independent and credible.

In addition to proposing a new adjudication structure for immigration removal cases, the report sets forth a detailed series of recommendations for improving various elements of the existing system.

Those recommendations also will be considered by the ABA's policy-making House of Delegates when it convenes next week during the association's 2010 midyear meeting in Orlando, Fla. The meeting opens Thursday. The House will be in session Monday and Tuesday.

"The study’s recommendations identify priorities to ensure that our immigration adjudication system is far more modern, transparent, functional and fair," said Grisez, public service counsel at Fried Frank in Washington.

One particular focus of the report is how to increase legal representation for noncitizens in removal proceedings. "The lack of adequate representation diminishes the prospects of fair adjudication for the noncitizen, delays and raises the costs of proceedings, calls into question the fairness of a convoluted and complicated process, and exposes noncitizens to the risk of abuse and exploitation by 'immigration consultants' and 'notarios,' " the report states.

Also see:

ABA Journal: "Notoriety for Notarios: ABA project targets consultants who steer noncitizens afoul of U.S. immigration laws"

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