Sweeping reforms with 'nonpartisan, core values' recommended for immigration system by the ABA House
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A slate of six immigration-related resolutions was passed by the ABA House of Delegates during their annual meeting session, all of which received broad support.
All of them were aimed at codifying as ABA policy the commission’s recent updates to its report, Reforming the Immigration System. The resolutions were sponsored by the ABA Commission on Immigration.
Commission Chair Wendy Wayne, an attorney for the immigration impact unit at the Massachusetts Committee for Public Counsel Services, told the ABA Journal in early August that the resolutions are intended to line up ABA policy with that report.
“These are nonpartisan, core values for the ABA and the United States justice system, and they should apply regardless of anyone’s politics on the hotly charged issue of immigration,” said Mary Ryan, a partner at Nutter McClennen & Fish in Boston and co-chair of the ABA Commission on Immigration’s Working Group on Unaccompanied Minor Immigrants.
• Resolution 121A calls on the Department of Justice to create standards and procedures for the way U.S. attorneys general may refer immigration court cases to themselves. Those standards should include requirements to notify the public that the attorney general is taking up a case and what legal questions he or she will review; provide an opportunity for public comment; and release underlying decisions in the case. The House also urged the attorney general to use this power as part of the review process rather than to preempt that process.
Federal regulations give the AG broad power to refer decisions of the Board of Immigration Appeal to himself or herself. The AG is then free to change immigration law precedents without any further internal review.
Ryan said that situation has been criticized as creating a conflict of interests, since attorneys general are both prosecutors of immigration crimes and adjudicators of immigration cases. She said the self-certification power has been heavily used in recent years to reverse long-standing precedents and limit the forms of legal relief immigrants can be granted.
“I understand that this resolution would be unnecessary if there were an independent Article I immigration court, but we aren’t there yet,” said Ryan, referring to existing ABA policy calling for independent immigration courts.
• Resolution 121B calls for the relaxing of strict deadlines for immigrants who are representing themselves to file appeals. Immigration law is civil, not criminal, so the vast majority of immigrants in the system are not given court-appointed lawyers.
• Resolution 121C contains a variety of proposals that the commission recommended in its recent updates to Reforming the Immigration System. One of these is implementing electronic filing throughout the immigration court system. Currently, they have only a pilot program in five locations out of 63, which the commission believes leads to inefficiencies. Another part of the resolution calls for immigration judges to be given contempt power over attorneys who appear before them and rules for exercising that power.
Other parts of the resolution call on the government to reverse decisions that the commission believes have hurt the fair and smooth adjudication of cases. These include restoring prosecutorial discretion rules that deprioritize law-abiding immigrants for prosecution; reversing DOJ decisions that have limited judges’ ability to close or delay cases for good cause. And the resolution calls on the Justice Department to hire immigration judges from diverse professional backgrounds, a concern among those who believe judges are too often drawn from the prosecution side of immigration law.
Jaime Hawk, a Washington State Bar Association delegate and legal strategy director for the ACLU of Washington’s Campaign for Smart Justice, moved the resolution in the House. She said the resolution was ultimately intended to advance justice in the immigration context.
“The immigration courts are suffering from a massive backlog of cases, and several policies recently put into place have raised concerns about due process and fairness in the system,” she said. “This resolution will improve due process and make improvements to the efficiency, integrity and fairness of the system.”
• Resolution 121D calls on DHS, which runs the law enforcement arm of the immigration enforcement system, to restore a 10-year-old policy memo that permitted asylum-seekers to be released in the “public interest.” It also asks DHS to make that policy a formal regulation and says the ABA supports release from immigration detention in a variety of ways.
Middlesex County, Massachusetts, prosecutor Kevin Curtin, a delegate from the Massachusetts Bar Association, moved it in the House. He said the resolution focuses on “legitimate asylum-seekers” affected by the U.S. attorney general’s power to unilaterally change immigration law precedents. (As a prosecutor, Curtin joked, he’d be delighted to be able to refer cases to himself.) In Matter of M-S-, Attorney General William Barr took away immigration judges’ authority to release asylum-seekers on bond. That leaves the parole power at issue in Resolution 121D as the only way for asylum-seekers to be released from immigration detention.
Curtin asked the House to consider that situation.
“A person comes to our borders, legitimately seeking asylum from, say, political or religious persecution. We then lock her up. We might separate her from her children. And then we prevent her from having access to counsel,” he said. “We wouldn’t do that to what my grandmother would call common criminals.”
There were no speakers in opposition, and most supporters waived their time. Ryan from the ABA Working Group on Unaccompanied Minor Immigrants was the exception. She wanted the House to know that this is an area of immigration law that “exemplifies the volatility of immigration practice today.”
“The decision in M-S- that Mr. Curtin mentioned is currently under an injunction,” she said. “We don’t know what’s going to happen tomorrow. So that’s why we need this.”
When immigrants enter the U.S. without a visa or other authorization—a category that includes the large number of asylum-seekers currently reaching the borders—immigration law permits the federal government to deport those people without a trial. That “expedited removal” process is canceled for asylum-seekers found to have a credible fear of persecution in their home countries. Such a finding permits the asylum-seekers to not only pursue their cases in immigration court, but also qualify for release if they are not a flight risk or considered dangerous.
That “humanitarian parole” may be granted to vulnerable populations or people whose detention is not in the public interest. Precise standards for determining who gets humanitarian parole were set out in the 2009 memo that Resolution 121D seeks to codify.
• Resolution 121E, calling for more pro bono programs to provide counsel to unrepresented immigrants, was passed on Monday as part of the consent calendar.
• Resolution 121F recommended that the Executive Office for Immigration Review change its regulations to allow for stays of removal proceedings and more time for voluntary departures under certain circumstances.
Follow along with our coverage of the 2019 ABA Annual Meeting.
ABA Journal: “Whose Court Is This Anyway? Immigration judges accuse executive branch of politicizing their courts”
Updated Aug. 13 at 3:30 p.m. to add details about all six resolutions. Updated Sept. 3 at 10:10 a.m. to properly attribute a quote to Mary Ryan.