See below for two articles on the state of immigration courts in the U.S. In my experience, one of the bigger issues is that foreign nationals (FNs) who may be eligible for work permits while their cases are pending are not being issued such because of delays, confusion about jurisdiction to issue such benefits, and perhaps even policies of delaying/denying such a “benefit”. In short, if a FN cannot work and earn money, then many times people find it easier/necessary to give up and leave the country. Good for enforcement, but necessarily fair if the person actually has a good case.
Frankly, the breakup of the former INS into three agencies (CBP, ICE and USCIS), now part of the Department of Homeland Security (DHS), has not been particularly efficient or consistent with due process. Before the breakup, INS dealt with all three areas – securing the borders, enforcing immigration laws, and issuing benefits. Now, each agency has its own jurisdiction and goals, yet the issues all agencies all deal with overlap – for example, obtaining legal status/work permit is a benefit which is generally issued by USCIS, but ICE is responsible for enforcing immigration laws and removal. Often, this leads to arguably insensitive and unreasonable policies by ICE who often takes the position that “too bad if your client cannot be issued a work permit by USCIS, we have nothing to do with it……..”
There’s no question that if we have immigration laws and rules they need to be followed by FNs. But, this also applies to the various immigration agencies. One major problem is that immigration proceedings are considered “civil” in nature yet the actual effect is more akin to criminal proceedings (but without the same constitutional rights and safeguards). In addition, the immigration courts are effectively administrative proceedings instead of judicial proceedings.
Because of the “civil” nature of immigration proceedings, e.g. the federal rules of evidence or procedure are not applicable and while a FN has the right to have an attorney there are no “public immigration defenders”. However, since the effect of being ordered deported/removed has life-changing ramifications for both FNs, US citizen family members and US employers, these proceedings are complex and costly. In addition, when denials from the immigration courts are appealed they eventually end up in federal courts.
While it may be argued that foreign nationals should not be afforded the same constitutional rights as U.S. citizens, the question is whether the current immigration court system is efficient and beneficial to the U.S. in the long run? The articles below point out the delays in immigration courts (for example, in my state of Oregon there is only one immigration judge for all Oregon cases!), and also the federal courts have been overwhelmed with appeals (often remanding cases and chiding the government and immigration judges for the lack of following rules and affording fair trials).
One of the major issues being discussed right now is when and if the U.S. should start the process of comprehensive immigration reform (CIR). An excellent example of why CIR is imperative, see e.g. a recent article by New York City Mayor Michael Bloomberg at http://www.ilw.com/articles/2010,0309-bloomberg.shtm. While immigration is a controversial and emotional issue, Mayor Bloomberg ends the article with:
“We cannot allow the national recession to be an excuse for inaction. As the Obama administration tackles the great challenges of our day, we look forward to working with the President and Congress to create an immigration system that will strengthen our economy, protect our borders, and honor our values.”
As the saying goes “sometimes you cannot have the cake and eat it too”, this applies to immigration as well. It truly is in the national interest of the U.S. to fix our broken immigration system or it risks being left behind……………….
Dan R. Larsson
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Immigration cases flooding U.S. courts
The Arizona Republic is reporting that stepped-up immigration enforcement is overloading U.S. immigration courts and undermining the ability of judges to rule fairly because of pressure to decide cases quickly. The influx of cases is creating backlogs that, in some places, will take years for judges to decide on immigrants’ status.
Although the long waits could aid some immigrants with weak cases who hope immigration reform arrives before their hearings do, for many others the delays also can hurt their cases. Witnesses could move, or family members with ties to the U.S. could die. Deported migrants can be separated from wives and children in the U.S. And those denied asylum could face persecution, torture or even death.
The immigration judges aren't part of the federal judiciary. Instead, they work for the Justice Department, which also employs the prosecutors, in the government's executive branch. That makes them not truly independent, which also could add to pressure to move cases quickly, said Eli Kantor, an immigration lawyer in Beverly Hills.
Suspected illegal immigrants charged with serious crimes are turned over to Immigration and Customs Enforcement and held in detention centers for possible deportation after their criminal cases are resolved. This adds to the burden of the immigration judges. Those charged with minor crimes are also often turned over to ICE, and many agree to leave voluntarily. Those who choose to fight deportation are often released on bond and given a notice to appear in immigration court.
Most of the cases before the immigration courts involve people who have been living in the U.S. for more than 10 years and have U.S. citizen children. Those two factors make them eligible for 'cancellation of removal.' To win their cases, immigrants must prove to a judge that their deportation would cause 'exceptional and extremely unusual hardship' to a U.S. citizen spouse, parent or child. Immigration lawyers say the legal standard is extremely difficult to meet, especially if judges are rushing through cases.
A 15-month study released in June by the Chicago Appleseed Fund for Justice concluded that immigration judges can no longer function properly because of the crush of new cases. 'Sometimes delay works to the advantage of an individual, and sometimes delay has adverse effects,' Executive Director Malcolm Rich said. 'But from a policy perspective, it says we have a court system that is in trouble and is dysfunctional.'
Nationally, according to the Syracuse analysis, the total number of pending cases in immigration courts in the past 10 years grew 64 percent. The number of immigration cases in Phoenix, for example, has risen 12 percent since last year alone, and 49 percent since 2007. The increase in cases stems from the federal government's crackdown on illegal immigration. The government has hired thousands of new Border Patrol and Immigration and Customs Enforcement agents in recent years to enforce immigration laws. It also has enlisted local law-enforcement agencies to help identify and arrest illegal immigrants. The crackdowns have been especially intense in Arizona. Hundreds of the new Border Patrol and ICE agents have been assigned to Arizona to arrest and deport illegal immigrants, contributing to the growing caseloads. Although most illegal immigrants caught at the border are quickly returned, others choose to fight to stay.
The crush of new cases is delaying deportation rulings by years. In early January, Judge Wendell Hollis, one of the three Phoenix immigration judges, didn't have room on his calendar to schedule final hearings for people seeking cancellation of removal until October 2011, 22 months later. Judge Lamonte Freerks was booked up until December 2012, nearly three years later. John Richardson, the senior judge, had the fullest calendar. In January, he was scheduling final hearings in August 2013!
http://www.azcentral.com/arizonarepublic/news/articles/2010/02/14/20100214immigrationcourts.html
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Memphis Immigration Court Overwhelmed
Fox News in Memphis is reporting that to get your case heard in one Memphis immigration court, you might have to wait a year or more to see a judge. The situation is so bad, Tennessee's two Federal Senators are requesting help from the Department of Justice.
Memphis' Immigration Court handles matters in Tennessee, Arkansas, and parts of Mississippi. Only two judges were handling that caseload. Now, it's been reduced to one. Inside the federal building downtown, only one judge physically sits in Immigration Court. In 2008, that court heard more than 3400 cases.
Mauricio Calvo, Director of Latino Memphis, says this overflow shows the need for immigration reform. In February of 2010, Senators Lamar Alexander and Bob Corker wrote to the Department of Justice, requesting a delay in transferring the court's second judge. Or, transferring another judge to Memphis until a permanent one is in place. Instead, the department rotates judges via video teleconference.
"People need to understand that immigration court is not only for un-documented immigrants. Immigration court affects people who are in the process of becoming legal, to become residents, to become citizens, citizens who are trying to bring their families, get re-united," Calvo said. Cases that can't wait a year or more for those involved, but often must.
http://www.myfoxmemphis.com/dpp/news/local/022410_memphis-immigration-court-overwhelmed
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