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Immigration Courts and how the Justice System is Failing Immigrants

By Zachary Mossburg

As a candidate for President in 2016, Donald Trump strongly played into some
Americans fear of immigrants.

Most will remember his remarks that while “some” Immigrants from Central America were “good people,” the majority were criminals and rapists. Once he was inaugurated as President, the Department of Homeland Security created an office for the victims of crimes committed by undocumented immigrants, called VOICE – or Victims of Immigration
Crime Engagement.

The stated purpose of this office is to create an online database tracking “illegal alien perpetrators of crime.” Much has been said in the past almost two years about the racist policies of the Trump Administration, and his treatment of immigrants has been notoriously harsh. The existence of the office of VOICE is a perfect example of both of these
issues.

We must, as a society, also focus on the actual lives of immigrants who are affected by the Trump Administration’s policies, many of whom, due to political turmoil and gang violence in central and southern America, face death or violence if deported. However, as Sarah Stillman the director of the Global Migration Project at Columbia University’s Graduate School of Journalism – has noted, most of the conversations happening in policy circles about these lives
are devoid of names and faces.

Despite tracking alleged crimes committed by “illegal alien perpetrators of crime,” the government has no way of tracking the lives of people who are deported, even those who claim they face certain death if deported. Sarah Stillman and the
Global Migration Project at Columbia University set out to do just this. After this database was started in early 2016, Stillman and the Project have found over 60 cases of immigrants who had been deported “to their deaths or other harms.”

In light of this situation, it seems of utmost importance to ensure that immigrants are afforded proper criminal rights when facing deportation. Just like anyone in the American justice system, immigrants, even ones here illegally, are constitutionally guaranteed the rights to due process and equal protection under the law. Despite this, deportation is seen as a civil citation rather than a criminal one, meaning that those facing deportations are not afforded the rights guaranteed by the Sixth Amendment, including the vital right to counsel.

This means that large numbers of those facing deportation, including children as young as three, have to represent themselves in immigration court and deportation proceedings. A study by the American Immigration Council found that only 37 percent of immigrants obtain counsel for their deportation hearings and only 14 percent of immigrants who are already detained obtain counsel. Additionally, those represented by counsel fare far better than those who are not. 44 percent of those who are represented are released from detention, as opposed to 11% of those who are not represented. It is clear that not having ample legal representation poses a huge problem for immigrants facing the prospects of being deported.

The place that these deportation proceedings take place, immigration courts, do more to deny immigrants their civil rights than to ensure them. In this setting immigrants face more obstacles than just the possibility of having to represent themselves – often in a language they are not familiar with. There are a total of 60 immigration courts throughout the United States, and they are most in varying states of administrative disaster. The backlog of cases is massive, and in some cities such as New York and Los Angeles, the backlog for a case is over two years, whereas in Chicago some cases have waiting periods of five years. During this waiting period, crucial evidence could go missing or get destroyed and key witnesses can die or go missing, impairing the fairness of the trial. As of February 2018, there was a total case backlog of 684,583 pending cases. The combination of this administrative inefficiency and the life or death situation that many immigrants find themselves in led Judge Dana Leigh Marks to remark during a PBS Newshour interview in 2017 that “in essence, we are doing death penalty cases in a traffic court setting.”

Administrative incompetence is not the only problem facing the structure of immigration courts. Unlike every other court in the United States, immigration courts are not under the jurisdiction of the Judicial branch. Instead, they are under the control of the Executive Branch and the Department of Justice, meaning that currently, Attorney General Jeff Sessions has oversight over this system. The glaring problem with this setup is that unlike other components of the justice system in the U.S., immigration courts are subject to the shifting political priorities of different administrations. Attorney General Jeff Sessions and the Trump Administration have made sure that this is the case. One pressing and recent example of this is a recent memo sent by the Department of Justice putting a quota on immigration judges. Quotas have been ruled illegal in other institutions, such as many police departments around the country, and quotas pose a threat to the integrity of the system as a whole.

The very establishment of quotas makes it part of a judges job to care less about a case and care more about clearing cases quicker. Rather than basing decisions on the rule of law and its application to cases on an individual basis, judges instead must focus on completing a certain number of cases in order to stay employed. This is not to mention the actual number of the quota that has been imposed, which will require judges to complete about three cases per day according to the National Association of Immigration Judge’s union. This stretches the judges thinner than they have already been stretched by a backlog of over 600,000 cases and additionally denies immigrants ample time to gather evidence and witnesses for their deportation hearings.

The Trump Administration’s attack on the independence of immigration courts goes beyond the imposition of quotas. On April 10th, the Justice Department announced it will be ending the Legal Orientation Program, which provides “people who are detained and facing deportation with basic information about immigration laws and their rights.” The ending of this program coupled with the fact that immigrants do not have the same right to counsel guaranteed to other Americans makes it so that immigrants facing deportation often do not know the full extent of the legal predicament they are in, or how to properly get out of it. When looking at these policy shifts in the context of statements made by Donald Trump on the campaign trail, these recent events all have one goal in mind: to speed up deportations without care for due
process of the law.

The combination of quotas and the ending of the LOP make it so that judges have to churn through cases quicker with defendants who often will be either without counsel or unknowing of the rights they have. Considering the threats of violence and even death in the cases of many of those seeking asylum in America, this seems to be a gross miscarriage of justice.

Reconsidering the database established by Sarah Stillman and her graduate students at Columbia University, it is hard to see how the number of deported immigrants who face death or other harms will do anything but continue to rise under the Trump Administration.

How do we fix the miscarriage of justice that takes place in the immigration court system? The first fundamental thing that needs to be done is to make the system independent of the Justice Department and the Executive Branch. Under the current system the Attorney General, currently Jeff Sessions, has wide authority over the courts, including the power to refer cases to themselves. This is grossly authoritarian in nature, and one man, no matter the position they hold, should be allowed to unilaterally decide the fate of an immigrant’s life. The first step of fixing immigration courts is to make them impervious to political priorities and administration changes, and the way to go about this is to move their jurisdiction from the Executive Branch to the Judicial Branch. Obviously, this is not a process that can happen overnight, so a reasonable and necessary first step would be to ensure the constitutional right to counsel for anyone facing deportation. The fact that children as young as three years old and people who struggle to speak English can go in front of an immigration judge and have their lives decided without appropriate representation is inherently un-American. Besides the political pressure applied by the establishment of quotas and the imbalance of information created by the dissolving of the Legal Orientation Program, Jeff Sessions has taken one other important step to comply with
Donald Trump’s racist mandate.

On March 5th he reversed a 2014 decision by the Board of Immigration Appeals that required immigration judges to hold a hearing before deciding an asylum case. This means that now immigration judges can decide the fate of some of America’s most vulnerable immigrants – people who are essentially political refugees in our country and who do not have the right to be represented in court – without even holding a hearing to allow the immigrant to make their case in person. Until the system that paints immigrants as criminals and intruders to our society is reformed, and until America’s constitutional rights are extended to all of those living in our country no matter their place of origin, and until the system that decides the fate of asylum seekers is depoliticized, the immigration court system in our country will remain in desperate need of amelioration and the civil rights of immigrants will continue to be violated on a daily basis.

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