ABA: Deportation System “Severely Flawed”

By William Fisher

The number of people deported from the U.S. annually has grown from just over 69,000 to over 356,000 in the past eight years, while resource-starved immigration judges issue decisions without sufficient time to conduct legal research and analyze complex legal and factual issues.

This is among the key findings of a new comprehensive review of the current deportation process by the American Bar Association’s Commission on Immigration and one of America’s leading law firms.

The study concludes that the removal (deportation) system “is severely flawed and fails to afford fair process to all non-citizens facing deportation from the United States.”

The study details many of the deficiencies in the current system and advocates for systemic reform.

It says, “There is strong evidence that (legal) representation affects the outcome of immigration proceedings.” But in 2008, it continues, 57 per cent of people in removal proceedings were not represented. Of those in detention, 84 per cent were forced to proceed without lawyers.

“Not only are many people unable to afford counsel, but remote detention facilities, short visiting hours, restrictive phone access, and transfers all have a devastating effect on a non-citizen’s ability to retain counsel and maintain an attorney-client relationship.”

The study, carried out in cooperation with the law firm of Arnold and Porter, finds “stark disparities” between the rates of asylum grants among immigration judges and, as a result, “a non-citizen’s success in immigration court may depend to a troublesome extent upon which judge is assigned his or her case.”

Among other findings:

The “tremendous increase” in deportations “has not been met with commensurate resources.”

Immigration judges completed on average 1,243 cases per year. (In comparison, Veterans Law Judges decide about 729 cases per year (of which only 178 involve hearings) and Social Security Administration administrative law judges decide about 544 cases per year.)

Given the overwhelming case load and the lack of adequate support staff, immigration judges primarily issue oral decisions, meaning that decisions are made without sufficient time to conduct legal research and analyze complex legal and factual issues.

There are “stark disparities” in the rates of asylum grants among immigration judges and as a result, “a non-citizen’s success in immigration court may depend to a troublesome extent upon which judge is assigned his or her case.”

Most Board of Immigration Appeals cases are decided by a single member, as opposed to the past practice of using three-member panels to decide cases. This change has resulted in fewer decisions favoring asylum seekers.

Most decisions are “short opinions” that fail to provide a sufficient explanation for the decision. The rate at which non-citizens are appealing Board decisions to the federal courts has increased from 9.4 per cent in 2002 to 26.7 per cent in 2008. In 2008, non-citizens filed more than 10,000 federal court appeals of Board decisions.

The absence of counsel, the overwhelming dockets, the lack of adequately
explained and reasoned decisions, and the disparities among judges’ decisions are just a few of serious problems plaguing the removal system, the study declares.

Beth Werlin, Litigation Clearinghouse Attorney at the American Immigration Council’s Legal Action Center, writes, “These problems not only diminish the public’s confidence in the system, but even worse, they compromise the statutory and constitutional guarantee of fair process for each person facing removal.”

She concludes, “As Congress takes on immigration reform this year, it should be mindful of those whom the current removal system is failing. Given the gravity of removal — which can range from permanent separation from family in the U.S. to being returned to a country where a person fears for his life — we must demand that the process is meaningful, fair and leads to just results.”

At the same time, a study by The Transactional Records Access Clearinghouse (TRAC) at Syracuse University concluded that the announced goal of a broad Justice Department project to improve the performance of the Immigration Courts — started during the Bush Administration but now a continuing challenge for President Obama — “has failed to achieve many of its ambitious purposes.”

This mixed verdict is based on the actual improvements so far realized in the operations of the immigration court system after a three-year Justice Department effort.

The TRAC study found that the annual number of deportation cases brought in the nation's federal courts more than quadrupled during the eight years of the Bush administration. It reported that the September 2008 total of 11,454 immigration prosecutions represented an increase of over seven hundred percent from the same month seven years earlier, September 2001).

The study reported that in fiscal year 2008, Department of Homeland Security (DHS) officers apprehended at least 791,568 deportable non-citizens; initiated 291,217 removal proceedings in the immigration courts against non-citizens; detained 378,582 non-citizens; and effected the deportation of 358,886 non-citizens.

The study says, “Immigration lawyers, civil rights advocates and some members of Congress have for many years been concerned about the operation of the Immigration Courts that are now a part of the Justice Department. But beginning in 2002, a change in EOIR (Executive Office for Immigration Review) court procedures ordered by then Attorney General John Ashcroft resulted in a stream of unfavorable decisions by appellate level judges in different parts of the country.”

It notes that Ashcroft's successor, Attorney General Alberto Gonzales, then ordered the Justice Department to undertake a special study of the EOIR.

In August of 2006 Gonzales, acting upon the findings of this internal study and the first in a series of studies documenting inexplicable disparities in how asylum cases were being decided, ordered the Justice Department to launch a corrective effort he said was necessary "to improve the performance and the quality" of the Immigration Courts and the Board of Immigration Appeals.

Gonzales' directive listed 22 specific measures. In March 2007, outgoing EOIR Director Kevin Rooney sent a memo to his staff updating the implementation of the proposed changes and in many cases providing target deadlines for their implementation.

The TRAC study says the Justice Department’s Executive Office for Immigration Review (EOIR), “has fallen far short of hiring the additional judges that the Justice Department had initially said were required; continues to hire judges without immigration law experience while available evidence indicates that comprehensive training in this complex legal area is not provided; has failed to provide evidence that it has established a system for seriously testing the immigration law knowledge of judges; has still not developed a judicial code of conduct or established a standardized system for handling complaints regarding the professional conduct of existing immigration judges; and has not worked out procedures to provide the judges the sanction authority they need to control their courtrooms.”

As in recent years, the TRAC study fund that the five federal districts with the largest proportion of immigration prosecutions in FY 2008 were strung out along the border with Mexico. In Texas South (Houston), Arizona (Phoenix), New Mexico (Albuquerque), Texas West (San Antonio) and California South (San Diego), for example, immigration matters made up 73.7 per cent or more of all those charged with a federal crime.