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Mon. September 24, 2018
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Now is the Time to Reform the Immigration Courts
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By Hon. Dana Leigh Marks

Overwhelmed and struggling to meet our mission due to pervasive underfunding for more than a decade, our nation’s Immigration Courts, located in the Executive Office for Immigration Review (EOIR) in the U.S. Department of Justice, are in a state of crisis.  A startling number of legal experts from all sides of the political spectrum agree on this. In fact, our courts have garnered the dubious distinction of being dubbed by one expert as “the most broken part of our immigration system.”  Perhaps the most sobering aspect of that assessment is the fact that immigration judges on a daily basis are adjudicating death penalty cases (where individuals are at risk of future persecution if expelled from the United States) in settings which most closely resemble traffic courts.  Fixing our broken Immigration Courts should be the first order of business as our country tackles myriad, thorny issues involved in immigration policy.  The fix for the courts is neither difficult, nor do we believe it will be unduly controversial or expensive.

A bit of background on the courts is helpful.  The immigration courts are the trial level tribunals that determine whether or not an individual is a citizen of the United States, whether or not that person is present in violation of our immigration laws, and, if so, whether or not that person qualifies to obtain an immigration status that would allow him or her to remain in the United States legally.  The law we apply in our proceedings has the complexity of the Internal Revenue code and can have consequences that can implicate all that makes life worth living or threaten life itself.  In addition to asylum seekers, those who may be required to appear before the immigration courts include lawful permanent residents who have lived virtually their entire lives in the United States but have been convicted of a crime here, vulnerable unaccompanied minors who have crossed the border fleeing violence or who have been neglected, abandoned or abused, adults who are mentally incompetent and their immigration status is unknown, and sometimes U. S. citizens, who may not realize that they derived such status through operation of law or who may have difficulty mustering the necessary evidence to provide the factual basis for their claim. 

Although people who come to court have the privilege of having an attorney’s help, that only becomes a reality if one can pay or find a willing volunteer.  Despite that disadvantage, all undocumented migrants in removal proceedings bear the burden of proof – the legal obligation to prove they are eligible to remain in the U.S. or qualify for a remedy under our complicated immigration laws – once the government shows that they are not U.S. citizens.  Last fiscal year, just over 85% of people in immigration detention were unrepresented in their court proceedings, a figure which fortunately dropped to roughly 40% when non-detained dockets are also factored in. This number remains problematic, as legal representation greatly aids the court in fairly and expeditiously deciding cases.  

The vast majority of proceedings, 83% last year, were held in a language other than English, yet any respondent has to persuade a judge that his testimony is worthy of belief, despite the linguistic and cultural barriers he or she may face.  This is particularly important because witnesses to events which occurred in foreign countries are rarely available to testify in court, and obtaining documentation of individual circumstances from far off lands can be quite difficult and even potentially dangerous.  Sometimes, well-prepared cases sound more like university lectures on the political realities of some little-known dictatorship or a psychology class on the etiology of domestic violence and post-traumatic stress, rather than a typical courtroom “he said, she said.”  In other cases, judges must make a decision with only the testimony of a single, illiterate and extremely traumatized individual, based on a record which is devoid of the quality of evidence that is usually presented in more formal court settings.   For judges, all these cases present a challenge to assure that he or she does not inadvertently make cultural assumptions about people or places that are unsubstantiated.   

The delicate balance that has allowed this complicated system to function in the past has begun to unravel due to the crushing caseloads currently

Overwhelmed and struggling to meet our mission due to pervasive underfunding for more than a decade, our nation’s Immigration Courts, located in the Executive Office for Immigration Review (EOIR) in the U.S. Department of Justice, are in a state of crisis.  A startling number of legal experts from all sides of the political spectrum agree on this  In fact, our courts have garnered the dubious distinction of being dubbed by one expert as “the most broken part of our immigration system.” Perhaps the most sobering aspect of that assessment is the fact that immigration judges on a daily basis are adjudicating death penalty cases (where individuals are at risk of future persecution if expelled from the United States) in settings which most closely resemble traffic courts.  Fixing our broken Immigration Courts should be the first order of business as our country tackles myriad, thorny issues involved in immigration policy.  The fix for the courts is neither difficult, nor do we believe it will be unduly controversial or expensive.

A bit of background on the courts is helpful.  The immigration courts are the trial level tribunals that determine whether or not an individual is a citizen of the United States, whether or not that person is present in violation of our immigration laws, and, if so, whether or not that person qualifies to obtain an immigration status that would allow him or her to remain in the United States legally.  The law we apply in our proceedings has the complexity of the Internal Revenue code and can have consequences that can implicate all that makes life worth living or threaten life itself.  In addition to asylum seekers, those who may be required to appear before the immigration courts include lawful permanent residents who have lived virtually their entire lives in the United States but have been convicted of a crime here, vulnerable unaccompanied minors who have crossed the border fleeing violence or who have been neglected, abandoned or abused, adults who are mentally incompetent and their immigration status is unknown, and sometimes U. S. citizens, who may not realize that they derived such status through operation of law or who may have difficulty mustering the necessary evidence to provide the factual basis for their claim. 

Although people who come to court have the privilege of having an attorney’s help, that only becomes a reality if one can pay or find a willing volunteer.  Despite that disadvantage, all undocumented migrants in removal proceedings bear the burden of proof – the legal obligation to prove they are eligible to remain in the U.S. or qualify for a remedy under our complicated immigration laws – once the government shows that they are not U.S. citizens.  Last fiscal year, just over 85% of people in immigration detention were unrepresented in their court proceedings, a figure which fortunately dropped to roughly 40% when non-detained dockets are also factored in. This number remains problematic, as legal representation greatly aids the court in fairly and expeditiously deciding cases.  

The vast majority of proceedings, 83% last year, were held in a language other than English, yet any respondent has to persuade a judge that his testimony is worthy of belief, despite the linguistic and cultural barriers he or she may face.  This is particularly important because witnesses to events which occurred in foreign countries are rarely available to testify in court, and obtaining documentation of individual circumstances from far off lands can be quite difficult and even potentially dangerous.  Sometimes, well-prepared cases sound more like university lectures on the political realities of some little-known dictatorship or a psychology class on the etiology of domestic violence and post-traumatic stress, rather than a typical courtroom “he said, she said.”  In other cases, judges must make a decision with only the testimony of a single, illiterate and extremely traumatized individual, based on a record which is devoid of the quality of evidence that is usually presented in more formal court settings.   For judges, all these cases present a challenge to assure that he or she does not inadvertently make cultural assumptions about people or places that are unsubstantiated.   

The delicate balance that has allowed this complicated system to function in the past has begun to unravel due to the crushing caseloads currently

Read this rest and more in the latest issue of  International Affairs Forum, focusing on migration and statelessness, by clicking HERE.

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