Immigration Court Craps Shoot

Just over a year ago, images from the Postville, Iowa, immigration raid shocked Americans and caused many to question how this could possibly be coming out of the American legal system. We saw large groups of detainees shackled together in the National Cattle Congress livestock fairground, denied access to legal advice, and processed in group proceedings. These judicial proceedings violated one of the most deeply rooted principles in American jurisprudence: due process of law. This legal principle can be traced back to the signing of the Magna Carta in 1215 and is preserved in the Fifth Amendment to the U.S. Constitution which provides that “No person shall be deprived of life, liberty, or property, without due process of law,” while the Fourteenth Amendment reads, “nor shall any state deprive any person of life, liberty, or property, without due process of law.”

Now, new reports from Appleseed and elsewhere continue to open other aspects of the immigration legal and detention system to the light of day, and the picture isn’t pretty. Earlier this summer the Appleseed network released a study of America’s immigration court system, documenting the disconcerting state of affairs that stepping into immigration court is a craps-shoot. Assembly Line Injustice: Blueprint to Reform America’s Immigration Courts, is based on more than 100 interviews with key practitioners in the system, as well as more than 100 hours of court observation by trained professionals. The report found numerous violations of due process rights including:

  • too few immigration court judges and clerks;
  • over-reliance on videoconferencing;
  • inadequate access to court records;
  • lack of effective, unbiased translation;
  • difficulty in securing representation for immigrants; and
  • a selection process for judges and Bureau of Immigration Appeals members that is often politicized and opaque.

In addition to statistical evidence, the report includes startling stories of a “culture of deportation” and lack of professionalism. Even when court personnel wish to administer justice fairly they are severely handicapped by insufficient resources. For instance, each Immigration Judge makes more than four potentially life altering decisions every business day, yet they have less than two hours on average to review each case file, conduct a hearing and render a decision.

Last week, another new report from the National Immigration Law Center (NILC), the ACLU of Southern California, and the international law firm of Holland & Knight, LLP, looks inside the nation’s immigration detention centers. Using 18,000 pages of previously classified detention center reviews, the report describes routine and systematic violations of individuals’ fundamental rights, as well as deplorable conditions suffered by hundreds of thousands of men and women housed in centers around the country. The findings and recommendations from “A Broken System” are particularly timely, as they are released in the wake of a Department of Homeland Security (DHS) decision to reject the long-standing request of non-governmental organizations and the American Bar Association to promulgate regulations that would require immigration detention facilities to adhere to basic standards of care.

The recommendations put forth by the report are based upon thousands of hours of research and analysis of the detention center reviews. Key among them is the proposal that the Immigration and Customs Enforcement (ICE) revise its standards for immigration detention to make them judicially enforceable. The report also determines that given the gross abuses, further expansion of the immigrant detention system should be stopped, and more use should be made of humane alternatives to detention.

One heartening sign is an Obama Administration announcement this week that they are taking major steps to overhaul immigration detention. The head of ICE also announced this week that ICE is undertaking a major overhaul of the agency’s immigration detention system in order to turn immigration detention into a “truly civil detention system.” He stated that ICE is “improving detention center management to prioritize health, safety and uniformity among our facilities.” It is our hope that these initial steps are only the beginning of a concerted effort to restore dignity, fairness and the fundamental right of due process of law in our immigration courts and detention centers.

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