Immigration

Overview

As a nation founded by immigrants and built on the rule of law, the United States must balance the challenges of controlling borders and protecting national security with the interests of protecting civil liberties and ensuring due process for immigrants. As the national voice of the legal profession, the ABA has a unique interest in ensuring fairness and due process in the immigration enforcement and adjudication systems. Even though immigration matters routinely involve issues of life and liberty, the administrative system of justice that exists for immigration matters lacks some of the most basic due process protections and checks and balances that we take for granted in our American system of justice. The ABA supports comprehensive reform of our immigration system and has adopted a wide variety of recommendations for changes in law and policy. As a lawyer’s organization, however, we prioritize our advocacy on issues related to access to counsel and legal information, detention, and the immigration courts.

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 (LOP), 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 detention is at an all-time high, with an average daily population of over 43,000, and is expected to increase in the coming year. For example, the administration has proposed new regulations that would permit the indefinite detention of families and children, which is currently limited by a court ruling. 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 800,000 cases pending and the current partial government shutdown, 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 Department of Justice has also taken several actions that hamper the efficient handling of court dockets and impinge on the independence of immigration judges. Many of these issues stem from the structural flaw of having the immigration courts placed under the authority of the Department of Justice, the nation’s law enforcement agency. The ABA supports restructuring the system into an independent, Article I court. 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.

What's New

The Department of Health and Human Service’s Office of Refugee Resettlement (ORR) has announced that it would run out of funding for unaccompanied children’s services in June. The Administration has requested an additional $3 billion in supplemental appropriations for the program, but Congress has not yet acted on the request. On June 4, media reports indicated that ORR had informed organizations running children’s shelters to scale back or stop activities "that are not directly necessary for the protection of life and safety," such as education, recreation, and legal services.

Status

On June 5, 2019, the House passed H.R. 6, the American Dream and Promise Act.

On May 22, 2019, the House Appropriations Committee approved the FY2020 Commerce, Justice, Science appropriations bill. The bill provides an increase in funding to $25 million for the ABA-supported Legal Orientation Program and prohibits the use of funding to implement numerical cases quotas for immigration judges.

On May 8, 2019, the House Appropriations Committee approved the FY2020 Labor, Health and Human Services, Education, and Related Agencies appropriations bill. The bill provides a $500 million increase in funding for the Unaccompanied Alien Children’s Program, including a $30 million increase for qualified and independent legal services for unaccompanied children.

ABA Advocacy

ABA Letter in Opposition to S. 1494, the Secure and Protect Act of 2019, June 17, 2019

ABA Letter in Support of Supplemental Appropriations for the Department of Health and Human Services, June 17, 2019

ABA Letter to the House of Representatives in support of H.R. 6, the American Dream and Promise Act, June 5, 2019

Statement of ABA President Bob Carlson, Re: Improper Detention of Immigrant Children, May 31, 2019

Statement of ABA President Bob Carlson Re: DHS proposal on immigrant children, April 1, 2019

Whose Court Is This Anyway? Immigration judges accuse executive branch of politicizing their courts, ABA JOURNAL, April 1, 2019

Immigration Matters: A fairer process is needed for those seeking entry to the U.S., President’s Message, ABA JOURNAL, March 2019

ABA Letter on Fairfax County Universal Representation Pilot Program, February 27, 2019

ABA Letter opposing the Zero-Tolerance Policy, February 6, 2019

Statement of ABA President Bob Carlson Re: Recent change in asylum rules, January 3, 2019

ABA President Bob Carlson sends letter to ICE rejecting changes to Flores settlement, November 7, 2018

Statement of Bob Carlson, ABA president Re: Improving the U.S. immigration system, November 27, 2018

ABA Comment Letter on Draft 2018 Revisions to the National Detention Standards, November 26, 2018

ABA Comment Letter on Notice of Proposed Rulemaking to Terminate the Flores Settlement Agreement, November 6, 2019

 

Primary Resources

Acccess to Counsel One-Pager 

Detention One-Pager

ABA Policy

ABA Entity

ABA Reports 

Committees of Jurisdiction

State Resources 

Legal Orientation Program Sites By State

Immigration Courts in the States 

Immigration Detention in the States 

Additional Resources 

Contact

Kristi Gaines

Legislative Counsel

Governmental Affairs Office
American Bar Association
1050 Connecticut Avenue, NW
Washington, DC 20036
Direct: (202) 662-1763
FAX: (202) 662-1782
Kristi.Gaines@americanbar.org