06.30.09 Letter to the Editor, Chicago Daily Law Bulletin
The Chicago Daily Law Bulletin recently published an article regarding the release of the report Assembly Line Injustice, which was prepared by Appleseed, a nonprofit network of public interest law centers in the United States and Mexico, under the leadership of its Chicago affiliate, Chicago Appleseed Fund for Justice. The report proposes 34 practical, achievable recommendations to advance the goals of promoting accurate results, legitimacy, and efficiency in the immigration court system. The article contained responses by Elaine Komis, a spokeswoman for Executive Office for Immigration Review (EOIR). As someone who assisted in the research and drafting of the report, I would like to comment on Ms. Komis' assertion that most of the recommendations in the Appleseed report have been addressed in the 22 improvement measures that EOIR has implemented or is currently implementing.
Our report acknowledges and commends the recent improvements implemented by EOIR and the Department of Justice (DOJ) -- the same ones referenced by Ms. Komis. At the same time, EOIR's improvement measures directly address only eight of Appleseed's 30 recommendations aimed at EOIR (four of our recommendations address concerns at the Department of Homeland Security (DHS)). The following are only a few examples of these unaddressed recommendations:
Broaden the candidate pool of immigration judges. There is almost an assumption within EOIR that the pool of DHS trial attorneys serves as the farm team for the Immigration Judge corps. As a result, some stakeholders feel the system is essentially rigged with two prosecutors in the immigration courtroom -- judge and DHS trial attorney. EOIR should aggressively recruit immigration judge candidates from the ranks of experienced private immigration attorneys, academics and non-governmental lawyers who possess the appropriate judicial temperament to achieve a more balanced system.
Give immigrants immediate and automatic access to the records in their cases. Currently, an immigrant must submit a Freedom of Information Act request for his own case files, despite the fact that DHS and DOJ deny fewer than one percent of properly submitted requests. The entire FOIA process obstructs justice and increases costs.
Bar the use of videoconferencing in merits hearings, except by written consent of the immigrant. While videoconferencing makes life easier for EOIR officials, it comes at the cost of dehumanizing immigrants and making it harder for immigrants to tell their stories to immigration judges. Immigration cases often turn on the credibility of the immigrant's story. Videoconferencing undermines the judge's ability to make credibility determinations, increasing the chances of a wrong decision.
Mandate the use of three-member panels in all Board of Immigration Appeals (BIA) decisions except for purely procedural issues or motions that do not decide the outcome of a case. The use of three-member panels for deciding all BIA cases was explicitly rejected in the 22 EOIR reforms Ms. Komis cites in her response to our report. The numerous stakeholders we interviewed, however, resoundingly favored a consistent use of three-member panels. Even DOJ acknowledges their superiority, stating that three-member review "enhance[s] the review and analysis" and "may provide more authoritative guidance."
For the eight Appleseed recommendations that are nominally addressed by EOIR's improvement measures, we detail why EOIR's steps simply are not enough. For example, while EOIR has proposed a Code of Conduct for Immigration Judges as one of its 22 improvement measures, we point out that unless the Code of Conduct has a credible enforcement mechanism it will be just another failed effort to improve the immigration court system. Yet, EOIR has to date provided no indication that it will implement the kind of credible, transparent enforcement process that Appleseed recommends.
Another example is that while EOIR has requested budget increases for additional immigration judges, law clerks, and staff attorneys, these modest requests do not come close to what Appleseed believes is needed.
Our report acknowledges that some progress has been made in addressing the concerns identified in the report. Yet it is important that EOIR recognize that much more needs to be done, and Appleseed has provided the blueprint for EOIR to achieve true reform of the immigration court system. To that end, we welcome a dialogue with EOIR and look forward to working with them on implementing our recommendations, which are crucial to creating an immigration court system that upholds our tradition of fair and equal justice. Our recent report crafts novel, comprehensive solutions that, if implemented, will reinvigorate the American promise of opportunity in a free society, and equal justice under the law.
Sincerely,
Malcolm C. Rich
Executive Director
Chicago Appleseed Fund for Justice