Immigration Law

ABA joins other legal organizations in calling for independent immigration courts

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A letter sent by the ABA and three other legal organizations Thursday urges Congress to establish an immigration court system outside the control of the U.S. Department of Justice.

The creation of an independent system would “protect and advance America’s core values of fairness and equality by safeguarding the independence and impartiality of the immigration court system, while ensuring the timely adjudication of cases,” ABA President Bob Carlson, American Immigration Lawyers Association President Marketa Lindt, Federal Bar Association President Maria Vathis and National Association of Immigration Judges President A. Ashley Tabaddor write in the letter.

The joint letter to Congress follows the ABA Commission on Immigration’s delivery of an updated report in March on how the immigration court system should be reformed. The report reiterated the importance of establishing independent immigration courts, a measure that was recommended in the commission’s original report and also called for by the ABA’s policy-making House of Delegates in 2010.

Wendy Wayne, chair of the ABA Commission on Immigration, affirmed in a press conference after the letter’s submission that promoting and protecting the independence of judicial systems has been a long-standing priority of the ABA.

“The immigration courts issue life-altering decisions each day that may deprive individuals of their freedoms, that separate families, including from U.S. citizen family members, and in the case of those seeking asylum may be literally a matter of life or death,” Wayne said. “Yet the system lacks the basic structural and procedural safeguards that we take for granted in other areas of our justice system.”

In their letter, the four legal organization leaders cite structural issues in the current system, including that the DOJ houses immigration courts but also prosecutes immigrants in federal court. This “inherent conflict of interest” is exacerbated by immigration judges being considered government attorneys, “a classification that fails to recognize the significance of their judicial duties and leaves them particularly vulnerable to political pressure and interference in case management,” they say.

From 2014 to 2016, the Executive Office for Immigration Review changed priorities and forced immigration judges to reschedule hundreds of cases, according to the organizations. And in 2018, the office instituted case completion quotas that pushed judges to quickly issue decisions or possibly face discipline.

The four leaders also point out that immigration courts face a backlog of nearly 900,000 cases while policies aimed at reducing that backlog have “severely undermined the integrity of the immigration court system.”

“In its current state, the immigration court system requires a structural overhaul to solve its foundational problems,” Carlson and the other leaders write in their letter. They are asking Congress to establish an independent system that ensures that immigrants receive “a fair day in court.”

Wayne agreed during the press conference that “with current immigration courts being subject to the whims of politics and political appointees, true neutrality and independence is impossible.”

“In addition to ensuring fairness and due process, an independent court would also be more efficient, with judges having more control over their dockets and not being subject to shifting case priorities and reassignments based on political or enforcement considerations,” she said.

According to the American Immigration Lawyers Association, this is the first time the four organizations have come together to call for congressional action. After submitting the joint letter Thursday, Wayne was joined in the press conference by representatives from each organization:

•Jeremy McKinney, second vice president, American Immigration Lawyers Association

•Greg Chen, director of government relations, American Immigration Lawyers Association

•Judge Denise Noonan Slavin, president emeritus, National Association of Immigration Judges

•Elizabeth Stevens, chair, Federal Bar Association Immigration Law Section

An ABA press release on the letter is here.

See also: “Are you an attorney who wants to get involved at the border? The ABA offers ways to do it”

ABA Journal: “Whose Court Is This Anyway? Immigration judges accuse executive branch of politicizing their courts”

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