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Support Access to Counsel and Due Process Safeguards

The ABA supports measures to increase due process safeguards for those in removal proceedings. Persons in immigration proceedings do not have a right to appointed counsel even though they face serious consequences, such as detention and removal from the country. Representation rates are low – 37 percent of all noncitizens and only 14 percent of detained noncitizens are represented in their proceedings. The ABA supports measures to increase access to counsel and legal information, including advocating for increased funding for the Department of Justice’s Legal Orientation Program, which provides legal rights presentations and pro bono screening for detainees. We support government-appointed counsel for the indigent and particularly vulnerable populations, such as children and the mentally ill and disabled.

Oppose Mandatory Detention and Support Alternatives to Detention

The ABA continues to oppose the detention of individuals in immigration proceedings except in extraordinary circumstances and to support increasing the use of alternatives to detention. Immigration and Customs Enforcement’s use of immigration detention has increased significantly from the 1990s to the present. Although the number declined in the past two years due to COVID-related restrictions, approximately 500,000 people were detained in 2019. With a record number of migrants arriving at the southern border in 2022, legislative efforts will be made to increase mandatory detention. Detention conditions are often deplorable, and these facilities can be especially traumatic for vulnerable populations, such as children and asylum-seekers, and all persons in detention have a significantly decreased ability to access counsel. It will be important for the ABA to continue to advocate for the use of detention only in extraordinary circumstances and to support less costly but effective alternatives to detention programs.

Support Strengthening the Independence of and Improving the Immigration Court and Adjudication System

With more than two million cases pending, the immigration court system is in crisis. While there has been some progress in increasing resources for the courts over the past two years, the backlog continues to grow. Many of these issues stem from the structural flaw of having the immigration courts placed under the authority of the DOJ. The ABA supports restructuring the system into an independent Article I court. In the 117th Congress, H.R. 6577, the Real Courts, Rule of Law Act, was introduced and approved by the House Judiciary Committee but never reached the floor for a vote.

However, given that such a major initiative will take time, the ABA also supports incremental improvements to the current immigration court system to reduce delays, ensure due process, and bolster the independence of immigration judges. To this end, the ABA supports increasing the number of immigration judges and support staff, implementing changes to address inefficiencies within the current adjudication system, and instituting improvements to the hiring, training, and disciplinary functions.

Support Restoring Access to Humanitarian Protection

The ABA supports ensuring access to legal protection for refugees, asylum seekers, and others deserving of humanitarian refuge. The Biden administration recently announced a new border enforcement plan that will significantly restrict the ability of asylum seekers to access our nation’s asylum system. The measures include barring persons who transit through a third country from seeking asylum in the U.S. and expanding the use of expedited removal. In addition to violating fundamental notions of fairness, many of these policies do not comport with the United States’ international treaty obligations or domestic statutory requirements. In addition, the 117th Congress failed to pass the Afghan Adjustment Act, leaving the 70,000+ Afghan individuals and families paroled into the U.S. after our withdrawal without a permanent solution. The ABA will advocate to rescind some of these programs and urge Congress to strengthen the asylum and refugee legal framework.

See more resources on immigration here.