'Removal Process' For Immigrants in the U.S. Is Riddled With Staggering Problems

For over a year, the American Bar Association’s Commission on Immigration and the law firm of Arnold & Porter LLP engaged in a comprehensive review of the current removal process. The law firm poured over hundreds of articles, reports, legislative materials, and other documents, and interviewed scores of participants in the system, including lawyers, judges, advocacy groups, and academics. This study led them to conclude what many immigrants, their families, and immigration lawyers and advocates already knew and what many others suspected: the removal system is severely flawed and fails to afford fair process to all noncitizens facing deportation from the United States. The study details many of the deficiencies in the current system and makes a strong case for systemic reform.

The 71-page executive summary reveals staggering numbers and facts. For example:

• Between 1996 and 2008, the number of people removed per year grew from just over 69,000 to over 356,000. This tremendous increase, however, has not been met with commensurate resources.

• Immigration judges completed on average 1,243 cases per year. (In comparison, Veterans Law Judges decide about 729 cases per year (of which only 178 involve hearings) and Social Security Administration administrative law judges decide about 544 cases per year.) Given the overwhelming case load and the lack of adequate support staff, immigration judges primarily issue oral decisions, meaning that decisions are made without sufficient time to conduct legal research and analyze complex legal and factual issues.

• Although “[t]here is strong evidence that representation affects the outcome of immigration proceedings,” in 2008, 57% of people in removal proceedings were not represented. Of those in detention, 84% were forced to proceed without lawyers. Not only are many people unable to afford counsel, but remote detention facilities, short visiting hours, restrictive phone access, and transfers all have a devastating effect on a noncitizen’s ability to retain counsel and maintain an attorney-client relationship.

• There are “stark disparities” in the rates of asylum grants among immigration judges and as a result, “a noncitizen’s success in immigration court may depend to a troublesome extent upon which judge is assigned his or her case.”

• Most Board of Immigration Appeals cases are decided by a single member, as opposed to the past practice of using three-member panels to decide cases. This change has resulted in fewer decisions favoring asylum seekers. Moreover, most decisions are “short opinions” that fail to provide a sufficient explanation for the decision. Not surprisingly, the rate at which noncitizens are appealing Board decisions to the federal courts has increased from 9.4% in 2002 to 26.7% in 2008. In 2008, noncitizens filed more than 10,000 federal court appeals of Board decisions.

The absence of counsel, the overwhelming dockets, the lack of adequately explained and reasoned decisions, and the disparities among judges’ decisions are just a few of serious problems plaguing the removal system. These problems not only diminish the public’s confidence in the system, but even worse, they compromise the statutory and constitutional guarantee of fair process for each person facing removal.

As outlined in the study, there are many steps the government can take immediately to address some of these problems. For example, it can increase the use prosecutorial discretion (i.e., choosing not to initiate the removal process in appropriate cases or terminating proceedings), reduce the use of detention, require written decisions with adequate reasoning, and restore three-member panels review of appeals to the Board. However, as the study concludes, much more is needed.