06.10.09 It is Time to Reform the Assembly Line Injustice of our Immigration Courts
Every year, millions of people arrive at America's borders looking for a better life in a free society with a tradition of fair and equal justice under the law. Some enter lawfully; others, illegally; still others enter lawfully but overstay their welcome and remain here in violation of our immigration laws. Whatever the situation, many of these individuals get swept up in an Immigration Court system that does not live up to our tradition of fair and equal justice. Our immigration courts are too often assembly lines dispensing injustice - a system that mistreats immigrants and at the same time wastes valuable public resources. It is time to bring reforms to this huge bureaucracy so that immigration courts can become a proud part of the American justice system instead of a dysfunctional backwater.
Our nation's immigration court system can be repaired, as outlined by a recent report, Assembly Line Injustice, the product of a collaboration between Chicago Appleseed and Appleseed with the generous support of our pro bono partners, Latham & Watkins LLP and Akin Gump Strauss Hauer & Feld LLP. The report uncovered a litany of problems in immigration courts throughout the U.S., and recommended proposed reforms. In addition to hundreds of hours of court watching in the Immigration Courts, Chicago Appleseed and its pro bono partners conducted well over 100 interviews among a broad sample of experts throughout the country, including practitioners (both fee-charging and pro bono), officials of nonprofit associations, leaders of professional organizations, academics, and government players. The findings from these interviews constitute a robust and comprehensive evaluation of the Immigration Court system across the country.
Our research shows that countless immigrants are subjected to harassing or denigrating treatment in Immigration Court, cannot understand what they are being asked or told, and have no assistance in navigating the byzantine court process. For example, several interviewees told of one Judge who "cannot control her temper," "often yells at the attorneys and clients," and whose conduct is so egregious that "law school clinics will not allow their students to appear in front of her." Recently, an inaccurate translation led an Immigration Judge to believe mistakenly that the immigrant brought before the court had started fires at a demonstration, when in fact the immigrant testified that fire trucks were called to hose down political demonstrators.
The report proposes more than thirty practical, achievable recommendations to advance the goals of promoting accurate results, legitimacy, and efficiency in the immigration court system. We should ensure that the hiring process for Immigration Judges is rigorous and based on merit. More Immigration Judges are needed and these judges need more tools to achieve justice -- more training, more clerks, and the authority to sanction government trial attorneys who are unprepared.
Some reforms are inexpensive, simple, and can be implemented immediately. For example, the federal government could implement a simple complaint-tracking procedure that compiles a database of interpreter complaints and disqualified interpreters. It could feature a prominent link on the website of the Executive Office of Immigration Review (EOIR) to the complaint filing process, making it easier to realize that such a process exists and allowing immigrants to use it. Another simple reform would be to give immigrants immediate and automatic access to the records in their cases. Currently, an immigrant must submit a FOIA request for his own case files, despite the fact that DHS and DOJ deny fewer than one percent of properly submitted requests. The entire process obstructs justice and increases costs.
Other proposed reforms are more comprehensive, such as making the Immigration Courts Article I courts to improve independence and impartiality. The report outlines several other crucial reforms, all of which have been narrowly tailored to bring the reality -- and the perception -- of fair play and equal justice to the Immigration Court system.
Chicago Appleseed, Appleseed, and their pro bono partners have uncovered systemic impediments to justice and economic opportunity. Individuals and communities on the margins of society -- the working poor, minorities, disadvantaged children or, as shown in this report, immigrants -- too often fall through the cracks of our legal system, unfairly denied the opportunity to pursue the American dream. The recent report crafts effective, comprehensive solutions that, if implemented, will reinvigorate the American promise of opportunity in a free society, and equal justice under the law.
Malcolm C. Rich
Executive Director
Chicago Appleseed Fund for Justice