Major changes to U.S. immigration system recommended

America’s immigration adjudication system needs a major overhaul to ensure that it is fair, that immigration judges are independent and that the enormous backlog of immigration court cases is reduced.

That’s the conclusion of a new report released Wednesday by the American Bar Association’s Commission on Immigration. The report includes more than 100 recommendations on how to improve the system, including significant changes in the courts, on the border and within the federal agencies that enforce immigration law. It is titled “Reforming the Immigration System: Proposals to Promote Independence, Fairness, Efficiency, and Professionalism in the Adjudication of Removal Cases.”

It is the commission’s first top-to-bottom look at the U.S. immigration adjudication system in nearly a decade.

“Our nation’s immigration system is broken,” ABA President Bob Carlson said. “Tinkering around the edges will not fix it. We need fundamental reform in every aspect of the system.”

The report focuses its attention primarily on two key principles:

• Ensuring that immigrants and asylum-seekers are treated fairly and humanely, have access to legal counsel and are not detained without good legal cause.

• Ensuring that immigration judges are given the independence they need to be fair, impartial arbiters. That includes removing them from the U.S. Justice Department, where they are currently hired by and answerable to the U.S. attorney general, the nation’s chief prosecutor.

The report includes many specific recommendations to remove political interference in the adjudication process, restore prosecutorial discretion, ensure due process in court proceedings and restore public faith in the impartiality of the immigration court system.

“This is a critical moment in the administration of justice within our immigration system,” the report concludes. “Systems that were already strained by lack of legislative reform and inconsistent policies are now at the breaking point. In the current environment, policies have been put forth that seek to limit access to asylum, counsel, and the courts themselves. There is little regard for the human cost of detention and deportation.

“While enacting policies that more closely adhere to a fair and humane interpretation of the immigration laws could do much to reverse these problems, there is little question that legislation is necessary to return balance and due process to the system.”

The 225-report was written by national immigration experts who are members of the ABA Commission on Immigration and by lawyers at the firm of Arnold & Porter. It is a wide-ranging update of a 2010 report from the commission and Arnold & Porter on the same subject.

“The Commission on Immigration works to promote fairness and due process for immigrants, refugees and asylum-seekers in the United States,” said Commission Chair Wendy S. Wayne. “This report critically analyzes those parts of our immigration system that fail to live up to these fundamental values of our society and makes concrete recommendations for change. We are incredibly grateful to Arnold & Porter for partnering with us on this comprehensive report.”

Larry Schneider of Arnold & Porter, who helped write the report, added, “The immigration courts are in crisis. It is now more critical than ever that they be moved out of the Department of Justice into an independent entity structured as an Article I court. Meanwhile, we need congressional action through legislation to address myriad issues, including ensuring the right to representation, and to make lasting changes at the Department of Homeland Security and in the immigration courts themselves.”

The full report and an executive summary are available online at www.americanbar.org/immigration.

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