AMERICAN BAR ASSOCIATION PROPOSES MAJOR OVERHAUL OF US IMMIGRATION SYSTEM

Written by: Taher Kameli, Esq.

Would it surprise you if someone said that there are issues with immigration in the United States?  Probably not, but when the US immigration system is criticized in strong words by one of our leading lawyer associations, you probably should take notice.  Thus, a March 2019 American Bar Association (ABA) report proposing a major overhaul of the US immigration system deserves our attention.

The ABA report, entitled “REFORMING THE IMMIGRATION SYSTEM Proposals to Promote Independence, Fairness, Efficiency, and Professionalism in the Adjudication of Removal Cases”, is an update to a similar report issued by the ABA in year 2010.  Unfortunately, most of the reforms proposed in the year 2010 report, as the 2019 report states, “never came to fruition. . . . [T]here have been virtually no new immigration laws addressing issues covered by the 2010 Report, and few of the 2010 recommendations were adopted by either the Obama or the Trump administrations.  At the same time, certain policies that were in place at the time of the 2010 Report and that promoted the fairness, efficiency, and due process of the immigration system have been undermined.  For the most part, this Update Report reaffirms and updates the 2010 recommendations, but in some cases, it was necessary to reject prior recommendations in favor of more drastic reforms”.

The ABA report makes recommendations in 6 general areas – the Department of Homeland Security (“DHS”), immigration judges and immigration courts, the Board of Immigration Appeals, judicial review, representation, and system restructuring.  The ABA report uses especially scathing words concerning immigration courts – “The immigration courts are facing an existential crisis.  The current system is irredeemably dysfunctional and on the brink of collapse”.

Among the specific recommendations made by the ABA report are:

  • The creation of “Article I” immigration courts. Similar to tax or bankruptcy courts, these “immigration specific” courts would be independent of the Justice Department;
  • The rescission of recent case production quotas and time-based metrics used to evaluate an immigration judge’s performance;
  • The minimization of political interference with immigration courts;
  • The use of video teleconferencing technology in immigration proceedings only for procedural (as opposed to substantive) hearings;
  • The adoption of new enforcement priorities and tactics by DHS;
  • The requirement of a 3 member panel review by the Board of Immigration Appeals in all non-frivolous merits cases that lack obvious controlling precedent;
  • The application by courts of a presumption in favor of judicial review (and rejection of attempts to insulate actions by labeling them as discretionary); and
  • The expansion of the right to counsel at federal government expense for indigent non-citizens in removal proceedings.

According to the ABA report, “This is a critical moment in the administration of justice within our immigration system.  Systems that were already strained by lack of legislative reform and inconsistent policies are now at the breaking point.  In the current environment, policies have been put forth that seek to limit access to asylum, counsel, and the courts themselves.  There is little regard for the human cost of detention and deportation.  While enacting policies that more closely adhere to a fair and humane interpretation of the immigration laws could do much to reverse these problems, there is little question that legislation is necessary to return balance and due process to the system”.

The problem is that just as essentially no legislation was enacted in response to the 2010 ABA report, given the current political climate, it is highly questionable if Congress can come together to pass any legislation in response to this current ABA report.  Until the political climate improves, with its extensive experience in protecting immigration rights, the Law Offices of Kameli and Associates can be your advocate to navigate the murky waters of immigration law.  Please contact the Law Offices of Kameli and Associates, at taher@kameli.com or 312-233-1000, for assistance.