To the editor: A Policy Statement from Chicago Appleseed
Last year, Appleseed and the Chicago Appleseed Fund for Justice released a comprehensive report, “Assembly Line Injustice,” outlining findings that American immigration courts regularly fall beneath basic standards of justice. The report compiled the reports of trained court-watchers as well as more than 100 interviews with individuals who are involved in immigration court on a day-to-day basis, including practitioners (pro bono and fee-charging), officials of nonprofit associations and professional organizations, academics and governmental players. The report offered 34 recommendations aimed at promoting accuracy, efficiency and legitimacy throughout the immigration court process.
Many of these recommendations are practical reforms that would help repair many of the problems cited in our report without dramatic overhaul of the entire system. Others involve more sweeping changes.
Moreover, Appleseed and Chicago Appleseed are not alone in calling for reform. The American Bar Association recently released its own report on the immigration court system, calling for new policies and practices. Many of these reforms overlap the recommendations found in “Assembly Line Injustice.” It is clear that the immigration court system is in need of substantial, immediate change.
There are many fine immigration judges and government attorneys working in this underfunded but critically important judicial system. But we heard of too many cases in which judges engaged in verbal abuse, mocking a pro bono attorney for being a “New York big firm do-gooder,” or yelling at an immigrant for not looking him in the eye, not understanding that eye contact was inappropriate in the immigrant’s culture.
We heard repeatedly that training of immigration judges is inadequate. In one case, responding to an immigrant’s claim that he faced persecution as a result of sexual orientation, a judge declared that the immigrant “didn’t look gay” and denied asylum.
Professionalism is certainly not the only thing that is too often lacking in the immigration court system. More than 85 percent of those who enter removal proceedings require translation services that are too often inadequate. A large percentage of immigrants in removal proceedings appear without counsel. These individuals are not given the tools they need to navigate through a Byzantine court system, and are instead subjected to procedures that are dehumanizing and wasteful of taxpayer money. Where the Supreme Court itself said, “Justice must satisfy the appearance of justice,” our immigration court system is widely recognized as ineffectual and unfair.
Many urge the restructuring of the immigration court as an Article I court to combat political bias. While independence as an Article 1 court can combat a number of the issues, more targeted actions are necessary in the meantime to restore legitimacy to the immigration court system.
In meetings with DOJ and DHS, Appleseed reviewed several in-the-trenches, practical reforms that would repair many of the problems cited in our research. It is particularly necessary to address inefficiencies that can, for example, lead to months-long stays at detention facilities when immigrants’ removal proceedings drag on far longer than necessary. Detention can cost upward of $200 per day per detainee, totaling $2.4 billion annually for detention operations.
We review some of those recommendations here:
Reinforce professionalism standards for immigration judges. Situations in which judges bully immigrants and attorneys are unacceptable, and the judges’ Code of Conduct must be updated and enforced. Regular, mandatory training sessions for judges will address issues of cultural competence and impartiality. In the case mentioned above where a judge ruled on the basis of sexual orientation stereotypes, training was provided by the court of appeals and the judge reconsidered his decision.
Hire more immigration judges and law clerks. Though DOJ has sworn in six immigration judges recently and claims to be in the process of hiring more, reducing each judge’s caseload by only one case per day would require the hiring of nearly 60 more, plus a corresponding number of judicial clerks. Judges have less than two hours to review each case file, conduct a hearing, and render a decision. Even with regular training on professionalism and efficiency, this reality denies both judges and immigrants the right to a reasoned, accurate decision.
Reform the hiring process for judges and Board of Immigration Appeals members. This includes depoliticizing the hiring process, as well as broadening the candidate pool for immigration judges beyond its current “farm team” of Department of Homeland Security trial attorneys. Drawing from the ranks of experienced private attorneys and academics will balance what is currently a pool of judges predisposed to rule in favor of the government.
Improve translation services. In one asylum case, despite the prohibition on opining, an interpreter refused to translate an immigrant’s claim that he had been attacked by anti-Semites in the Ukraine. The interpreter responded, “That sort of stuff doesn’t happen in the Ukraine.” Not only must certification standards be improved, DOJ must design complaint-tracking and removal procedures for interpreters. In addition, simultaneous translation of everything said in court, not only communication between judge and immigrant, should be mandated, such that immigrants may understand the context of questions asked.
Eliminate videoconferencing in merits hearings. In one case, a judge ruled that a client’s story about physical abuse was not credible because she could not see the scars on the immigrant’s dark skin on the small, dimly lit television screen. Though implemented in the name of efficiency, videoconferencing dehumanizes immigrants, denies them the right to confer privately with their lawyers, and undermines the ability of a judge to make credibility and demeanor judgments, which are especially important in immigration cases.
Improve document availability. An immigrant must submit a Freedom of Information Act request for his own records, though less than 1 percent of these requests are rejected by DOJ and DHS. This statistic reveals a process that consumes resources rather than one that enhances justice – again, costing taxpayers millions of dollars.
Ensure that trial attorneys are handling cases professionally and efficiently. DHS trial attorneys have only about 20 minutes to prepare for each case. Despite this time limitation, they often neglect to settle minor issues out of court or drop weak cases, charging ahead to seek the worst possible outcome for every immigrant. In one case, a trial attorney argued that a man provided “material support” to Burundi terrorists when they robbed him of $4.12 and his lunch. Ensuring professionalism and efficiency for trial attorneys will include updating the mission statement, mandating pre-trial conferences at the request of either party, encouraging prosecutorial discretion to reduce time-wasted on petty matters, and extending immigration judges’ sanctioning authority to attorneys who appear in court unprepared.
Fix the appeal process. Multiple interviewees reported that the appeal process is often simply a regurgitation of the previous decision. Requiring fully reasoned written opinions and eliminating affirmance without opinion, as well as a return to three-member panels in situations where motions decide the outcome of a case, are necessary to keep the appeal process from being simply another waste of resources.
Several of these recommendations fall under the individual responsibilities of DOJ and DHS, but many address actions by both, and are for the most part cost-effective, in-the-trenches reforms rather than high-cost overhauls. Appleseed has met with officials in both agencies who have acknowledged that these reforms are necessary and indicated that they will be addressed.
We look forward to continuing conversations that we deem necessary to restore professionalism, efficiency, and legitimacy to an immigration court system that has fallen beneath the standards of American justice.
Malcolm C. Rich, executive director, Chicago Appleseed Fund for Justice; Julliard Lin, intern, Chicago Appleseed Fund for Justice; Vikas K. Didwania, Kirkland & Ellis LLP
Chicago Appleseed Fund For Justice – Immigration Court Reform
