Report Release: Reimagining the Immigration Court Assembly Line

The Obama administration has made progress in improving the U.S. immigration court system, but much remains to be done, according to Reimagining the Immigration Court Assembly Line, a report by public interest justice centers Appleseed and Chicago Appleseed with pro bono counsel Akin Gump Strauss Hauer & Feld LLP and Latham & Watkins LLP.

This report updates Appleseed’s 2009 report Assembly Line Injustice, which examined the accuracy, legitimacy and efficiency of the immigration courts.  The new report concludes that, since 2009, the Administration has made some substantial improvements and has initiated some overdue changes, but the immigration courts still fail too often to provide an adequate system of justice.

“Everyone in the system must step away from their spots on the assembly line, assume leadership and be held accountable for transforming the immigration courts into an accurate, legitimate and efficient system of justice,” noted Betsy Cavendish, Appleseed’s executive director.

Steven Schulman, pro bono partner at Akin Gump, said, “The administration’s improvements are welcome, but in order to ensure consistent and just treatment of those subject to the U.S. immigration court system, constructive change must continue until immigrants are no longer denied due process and a fair hearing because of their unfamiliarity with the system or the system’s own inadequacies.”

Appleseed identified nine areas in which it evaluated progress and proposed change:

1. Reforming the Immigration Judge Selection Process – Political influence in selection has abated, but the immigration bench needs greater diversity.
2. Giving Immigration Judges the Tools to Achieve Justice – The number of judges has increased by 22 percent since 2009, but the caseload has increased by 48 percent.
3. Cultivating Professionalism in Immigration Court – The Department of Justice (DOJ) has improved judicial professionalism through training and discipline, though some practitioners report instances of unprofessional conduct on the bench.
4. Empowering DHS Trial Attorneys – the Department of Homeland Security (DHS) adopted a new prosecutorial discretion policy, but it has not yet yielded meaningful results.
5. Providing Effective Interpretation – Too many poor translators and incomplete translations put non-English-speaking immigrants at a serious disadvantage.
6. Reducing the Unfairness of Videoconferencing – DOJ increased its reliance on video hearings for detained immigrants and the quality of the video hearings often skews the result against the immigrant.
7. Improve the Reliability of Court Records – DOJ has upgraded its hearing recording system, but immigrants still face unnecessary hurdles to obtain their immigration files from DHS.
8. Helping the Unrepresented – DOJ has significantly improved access to counsel and information, but far too many immigrants still appear in court without a lawyer.
9. Getting it Right on Appeal – The Board of Immigration Appeals has weaned itself off “affirmances without opinion,” but still does not issue enough precedential opinions or make other decisions public.

The full report is available at http://appleseednetwork.org/LinkClick.aspx?fileticket=RcBL31ok7_k%3d&tabid=596 .

Founded in 1945, Akin Gump Strauss Hauer & Feld LLP is a leading international law firm with more than 850 attorneys in offices throughout the United States, Europe, Asia and the Middle East.

Serving the Needs of Both Immigration Courts and the People Appearing in Them

Chicago Appleseed Fund for Justice has signed on to a letter to Congress (.pdf) supporting expansion of the Legal Orientation Program established by the Executive Office for Immigration at the Department of Justice in 2002.  The LOP provides funding to state and local organizations that work with detainees, helping them understand their rights and responsibilities with regard to immigration court and removal proceedings. Over 65 institutions and individuals concerned with immigrant rights, human rights and  access to legal representation also signed the letter, including National Appleseed and Texas Appleseed. The letter was drafted by Human Rights First and the Lutheran Immigration and Refugee Service.

80% of immigration detainees do not have legal representation and there are more than 100 detainees for every one full-time non-government attorney providing legal services to detainees. As a consequence, immigration proceedings are highly inefficient—and therefore, costly—because the courts must take responsibility for informing unrepresented detainees of their basic rights, the general rules of the removal process, and complex immigration laws. Because the LOP offers the same instruction to detainees in advance of their hearings, the LOP significantly shortens immigration proceedings, improves the quality of the proceedings, and relieves immigration judges and Immigration and Customs Enforcement attorneys of additional burdens in hearings.

Chicago Appleseed is committed to improving the removal process and working for reforms that protect the legal rights and basic human rights or persons in immigration detention. Programs like the LOP improve the quality of our immigration courts and safeguard the help safeguard the people subject to their proceedings. Expansion of the Legal Orientation Program serves the public good.

Links of Interest

What We Read, January 9-13, 2012
 

Elections:

• Gapers Block reports on the first and second public hearing over the Ward re-mapping.

 

Criminal Justice and Criminal Court Reform:

• Cook County Board President Toni Preckwinkle has called for a study of the bail bond system in Cook County

 

Immigration Court Reform:

• Immigration Impact discusses clarifications to the ICE detainer reporting form, noting that Cook County is among municipalities limiting their compliance with detainers because of problems with the program. Meanwhile, the Chicago Daily Herald reports on a Cook County Commissioner, who wants more reporting to ICE in Cook County.  As noted in the link above, Cook County Board President Preckwinkle defends the position taken by the Board last fall, despite criticism, believing that release of county inmates is an issue for the judicial system, not the immigration system.

 

Other Links of Interest:

• The Chronicle of Philanthropy explains how to make numbers and data fun and compelling.

• WBEZ reports on gaps in disclosure rules and practices in Illinois which leave room for lobbyists to operate without public notice.

 

Links of Interest

What We Read, October 24-28, 2011

Criminal Justice Court Reform:

• Special Rapporteur Juan Méndez  addressed the announced that U.N. General Assembly in New York,  discussing how solitary confinement violates the United Nations Convention against Torture. A link to his full report is available here.

• The Family Justice Program at the Vera Institute of Justice recently completed Close to Home, a project to enhance reentry outcomes by incorporating a family-focused, strength-based approach to facility policies and practices.

• An interesting analysis of sentencing policies, incarceration rates and a long-needed California’s penal policy, following Brown v. Plata (.pdf) and  Coleman v. Schwarzenegger. Synopsis of Plata at the Oyez Project.

 

Immigration Court Reform:

• California has passed legislation to pre-empt participation in E-verify laws check the immigration status of potential employees.

• Systematic review to separate “high-priority” deportations of criminals from “low-prioroity” deportations that clog the system is to begin shortly.

• The director of the Illinois Coalition for Immigrant and Refugee Rights writes about the impact of deportations on families and minor children.

• SCOTUS blog conducts a Constitution audit of state alien laws so far.

 

Community Justice:

• A federal judge in Orlando temporarily blocked Florida’s controversial law requiring welfare applicants be drug tested in order to receive benefits. The ACLU of Florida, who filed the case, offered this press release.

• Clifford Winston, an economist and a senior fellow at the Brookings Institution, asks if law schools and bar exams are necessary.

 

 

Links of Interest

What We Read, June 20-24, 2011

Immigration Reform:

• The US has modified its Immigration policy by raising the immigration threshold and shifting its deportation focus to immigrants who are charged with serious crimes. This switch is consistent with Chicago Appleseed and Appleseed’s recommendations in their Assembly Line Injustice report.

• Pulitzer Prize winning journalist Jose Vargas tells his compelling story of being an undocumented immigrant. Chicago Appleseed has long advocated for more straightforward and expeditious procedures for becoming gaining permanent resident status in the United States–which would benefit individuals like Mr. Vargas.

• Mother Jones weighs in on the likelihood that Mr. Vargas will face deportation.

Criminal Justice Reform:

• Cook County President Toni Preckwinkle declared the “war on drugs” “dismally failed,” at a rally in the Chicago Loop last week. Chicago Appleseed blogged about her public display of support for diversion and treatment alternatives for nonviolent offenders.

• The Huffington Post has released a 3-part (part 1, part 2, part 3) series on “Myths of the Criminal Justice System,” many of which raise issues integral to Chicago Appleseed’s work.

• The TASC blog reports that 83% of men arrested in Cook County tested positive for illegal drugs–the highest rate among 10 cities studied.

• The Supreme Court ruled (.pdf) in Tapia v. U.S. that a court may not lengthen or enhance a sentence in an attempt to foster defendant’s rehabilitation through a drug treatment program.

• The LA Times reacts to the Tapia decision by calling on Congress to reform the approach to incarceration in the judicial system.

• The Economist examines the private prison industry in the U.S., pointing to the Justice Policy Institute’s new report (.pdf) on the industry.

Community Justice:

• The Supreme Court ruled that the state must “assure a fundamentally fair determination of the critical incarceration question,” when it comes to jailing noncustodial parents who have failed to make meet their child support obligation. The Court also ruled that noncustodial parents are not entitled to public counsel, even when they are facing jail. Chicago Appleseed is one of the only organizations that examines the fairness and effectiveness of Illinois’ child support system.

• The Brennan Center, who filed an amicus in the case, discusses the decision here. SCotUSBlog analysis here.

Immigration Court Reform Serves Everyone’s Interests

This article originally appeared at the Huffington Post.

“These are death penalty cases being handled with the resources of traffic court,” one Immigration Court judge told Chicago Appleseed, in an interview for a 2009 report.

A recent two-part Associated Press report on immigration court also captured the system’s stunning dysfunction: a “massive crisis” in which judges, immigrants, lawyers, and reformers alike are overwhelmed, exhausted, frustrated, and fed up. American taxpayers should be fed up, too.

Immigration court is a subset of the Executive Office for Immigration Review (EOIR), whose primary aim is to decide whether to remove or grant residence to immigrants who are charged by the Department of Homeland Security (DHS) with violating immigration law.

Some are children who have been smuggled in without parents, some have entered the country illegally, some have entered legally but overstayed their visas or committed crimes, and a great many are seeking asylum–ie, protection from persecution in their home country.

Under current DHS rules, each one must go through the exact same, agonizingly slow, legal process. Immigration Court judges hear each case and determine who stays and who goes, often with very little evidence to inform their decisions. With a staggering backlog of 268,000 unresolved cases, it’s safe to say that the process doesn’t work.

In 2009, Appleseed, in cooperation with Chicago Appleseed Fund for Justice, conducted over 100 interviews with key practitioners in the immigration court system, as well as over 100 hours of court watching. The resulting report, “Assembly Line Injustice,” identified numerous issues, many of which are reflected in the recent AP story, but also several concrete suggestions. Among them: increase staff, appoint nonpolitical judges, implement a type of “triage” through pre-trial conferencing, and provide immigrants access to their court records without a FOIA request.

Drawing largely on the Assembly Line Injustice report, Appleseed submitted to the Senate Judiciary Committee written testimony contributing to the Committee’s hearing, “Improving Efficiency and Ensuring Justice in the Immigration Court System.”

Immigration is an emotional subject in America. At a time when nearly one in six working-age adults is unemployed or underemployed, there seems little reason to devote dollars to a better immigration system. However, broken Immigration Court not only fails to let people in; it also fails to get people out.

It may take years for a persecuted individual to be granted asylum, as was the case of one mother from Cameroon who was granted asylum after five years of legal efforts.  Her children endured starvation and disease while she sought asylum from the country that beat and jailed her for political organizing. This mother’s experience, which is not atypical of asylum cases, is an affront to American ideals.

Deporting criminals and others residing in America illegally also involves a lengthy, expensive process. Before being deported, immigrants are detained, often for weeks or months, at a cost of $200 per day–and a total cost of $2.4 billion per year.

One simple way to address the backlog is through a pre-trial conference system, similar to the kind used in criminal courts. In criminal courts, the vast majority of cases are resolved without going to trial; otherwise, they could not function. Pre-trial conferences could be used to negotiate and dispense with the easier cases, and identify the more challenging cases that should be forwarded to a judge.

“No matter what the situation is, every case is basically given the same level of scrutiny and the same level of resources,” says Malcolm Rich, Executive Director of Chicago Appleseed. “It’s not an efficient way of running a court system. If you had that in the state and federal courts, they would grind to a halt. It ends up being unfair to some people and doesn’t serve the public interest.”

A huge case backlog leads not only to delays, but also to mistakes. Mistaken judgments are frequently appealed, and those appeals often end up on the desk of already busy federal appellate judges.

In one remarkable opinion (pdf), Federal Appellate Judge Posner, one of the most cited judges in the US, summarized the problem of poor decision-making in the lower courts, writing, “All that is clear is that it cannot be in the interest of the immigration authorities, the taxpayer, the federal judiciary, or citizens concerned with the effective enforcement of the nation’s immigration laws for removal orders to be routinely nullified by the courts . . .”

The immigration court system is an integral part of the American justice system.  No matter your views on immigration policy, these courts need to be fair, efficient, and effective.  There are some relatively inexpensive ways to improve these courts that will yield millions of dollars in savings while increasing due process protections.  Given our national interest in saving funds while improving the immigration system, these changes should be implemented now.

Links of Interest for the Week — May 20, 2011

Immigration Court Reform:

• Human Rights Watch presented testimony to the Senate Committee on the Judiciary about reducing the immigration court backlog through decreasing transfers and providing counsel.

Criminal Justice Reform: Chicago Appleseed does not work in the area of prison reform but several articles discussing prisons, prison populations, and the costs of incarceration caught our eye this week.

• Michelle Alexander, an associate professor of law at Ohio State University,  had an editorial titled “In Prison Reform, Money Trumps Civil Rights” in the New York Timesthis week. 
• A longer article in Wednesday’s New York Times questioning conventional wisdom that privately-operated prisons can cost less to operate than state-run prisons.

• Equal Justice Works is commemorating Mental Health Awareness Month with a series of blog posts on the courts, prisons, and persons with mental health issues.

 Community Justice:

• The Chicago News Co-Op has put up a nice interactive guide to Chicago’s aldermen as we all get accustomed to having a new mayor.

• Social IMPACT Research Center, a program of Heartland Alliance has released a report examining publicly-funded human services and highlighting the social and economic value for society when investments are made into human services, briefly touching on the benefits of community schools.

• Illinois’ Senate Democrats released their proposed redistricting map, drawn during a closed-door session.  You can view the proposed map using Google Earth By following the instructions at this link.

How Court-Watching Supports Our Work

To support its mission of research-based advocacy, Chicago Appleseed Fund for Justice operates several court-watching programs. Court-watching serves Appleseed’s dual purposes of research and advocacy particularly well and is a central component of all our research into how the courts are functioning. Because Chicago Appleseed advocates for change through research and analysis, the influence of our work is dependent upon the strength of our research and court-watching provides critical insight to the daily workings of our courts and their efficacy. Court-watching, which employs a primarily volunteer workforce, also connects members of the community to the courts in a manner most people never experience. This helps expand the reach of our advocacy by involving the community directly in our work.

Over the years we have placed court-watchers in the Bond Court, in the Criminal Court, in the Federal Immigration courtrooms, in the child support courtrooms and recently in specific judge’s courtrooms across Cook County.  Among others, we have worked with universities—such as  Chicago-Kent Law School’s Immigration Clinic and the Steans Center at DePaul University—and law firms—such as Latham & Watkins LLC, Akin Gump Strauss Hauer & Feld LLP, and DLA Piper—and community groups such as the League of Women Voters of Illinois. Additionally, dozens of volunteers unaffiliated with any particular organization contribute hours to our court-watching programs.

At present, three on-going projects have an extensive court-watching component: the Judicial Performance Commission of Cook County; the Immigration Court Reform Project; and the Criminal Justice System Reform in Cook County.  For the Judicial Performance Commission, our court-watchers have begun to observe the courtrooms of judges standing for retention in 2012 and of judges identified by the 2010 Judicial Performance Commission as having courtroom issues.  JPC court-watchers report on whether the courtrooms of retention candidates appear to run smoothly. They note the judge’s demeanor and general tenor of proceedings in the courtroom. Their observations are included in the reports which the JPC reviews as it assesses the performance of retention candidates. Court-watchers in the Immigration Courts also pay attention to the demeanor of judges in the courtroom, but they also track statistics of the cases and report on the professional behavior of attorneys involved in the cases. Their observations form some of the data used to generate recommendations for improvement in the Immigration Court. Court-watchers in the criminal courtrooms make the same observations, but also report on the physical conditions of the courtroom and the professional behavior of staff and sheriffs in the courtroom.

In the past we have court-watched in support of reforms in the Child Support Enforcement Division and in the Bond Court. As we move forward with our advocacy in those projects, we hope to include court-watching in the data collection necessary for those projects.

Court-watchers provide us with a unique and valuable perspective on the functioning of our courts. They are able to view the proceedings with fresh eyes, unlike many attorneys who—after years of practicing in front of the same judges—have come to take some routines for granted or no longer notice procedures that detract from fairness or efficiency in the courtroom. Court-watchers also help us view our courts from the perspective of the community which the courts serve and remind us that the courts serve the public and should be accountable to them.

The court-watching program at Chicago Appleseed serves our mission not only by strengthening our research, but also by allowing us to inform and involve more of the community in our advocacy.  Court-watching programs bring nonlawyers into the courtrooms, which helps to dispel the notion that the process of justice is only relevant to litigants. An extensive court-watching programs expands our research capabilities and broadens the reach of our advocacy. To become involved in our court-watching program, please contact me, Elizabeth Monkus, at Chicago Appleseed.

A DREAM Deferred: Federal DREAM Act Fades in Lame Duck Congress

With student and adult protestors surrounding the Capitol, the Federal Development, Relief, and Education for Alien Minors (DREAM) Act died in Congress’s latest lame duck—albeit, unusually productive—session. Senate Democrats were unable to muster the 60 votes needed to invoke cloture—the procedure necessary for overcoming the largely Republican filibuster. The DREAM Act would afford a path to full American citizenship to the most innocuous immigrant group: educated, non-criminal illegal immigrants who entered the US before age 16. In order to obtain citizenship, these immigrants would be required to serve in the US military and/or complete two years of post-secondary education, among other requirements.

With staggeringly low college attendance rates and a shortage of qualified military personnel, the US stands to benefit tremendously from the DREAM Act’s offer of full citizenship in exchange for education and/or military service. Some states have already enacted similar measures. Recognizing the critical importance of education for all members of society, Illinois is one of just a handful of states that grants in-state tuition rates to undocumented high school graduates. Illinois’s own Senator Richard Durbin introduced the DREAM Act in early 2009 and has championed it ever since.

Had the DREAM Act passed, hundreds of thousands of young adults would have received the immediate benefit of legal resident status. These residents, who were brought to the US as (often very young) children, currently live in emotional and legal conflict: they live illegally in this country, but their country of origin—a place without their friends and immediate family—is no longer their home. They are very likely to stay in the US regardless of their legal status. But if they remain illegally, fear of deportation will continue to discourage them from seeking higher education and thus meaningful, income tax-generating, employment.

The DREAM is not dead. It has been hailed widely as bipartisan and fair, and it has the support of military leadership, as well as many conservatives. The majority of the Senate voted in favor of the bill, including the venerated chair of the Foreign Relations Committee, Republican Senator Richard Lugar of Indiana. Critics of the Act say it rewards illegal activity and will encourage more illegal immigration. That may be true, but immigrants who are well educated and willing to serve the country are not the sort of people the US should be turning away.

Transforming Immigration Court–Upcoming MCLE Forum

The Chicago Council of Lawyers and Chicago Appleseed are pleased to present our upcoming MCLE forum Transforming Immigration Court.

Date: Thursday, October 29, 2009
Time: 12:00 to 2:00pm
Location: Chicago-Kent College of Law, Auditorium, 565 W. Adams, Chicago Illinois 60661.

Speakers:

James F. Rogers, Latham & Watkins

Hon. Dana Marks, President, National Association of Immigration Judges

Mary Meg McCarthy, Director, National Immigrant Justice Center, Heartland Alliance

Lisa J. Palumbo, Supervisory Attorney of the Immigration Project, Legal Assistance Foundation of Metropolitan Chicago

Tanya Nair, Latham & Watkins

Moderator:

Daniel Glad, Latham & Watkins. Mr. Glad is a principal author of Assembly Line Injustice, a comprehensive examination of the immigration court system produced by Appleseed, Chicago Appleseed Fund for Justice, and their pro bono partners, Latham & Watkins LLP, and Akin Gump Strauss Hauer & Feld LLP.

The forum is free, but all attendees must RSVP by October 26, 2009 to Andrew Halterman (andrewhalterman@chicagocouncil.org or 312-988- 6614). Two hours of MCLE credit will be provided and lunch will be available.

For more information about our Immigration Court Reform project, click here.