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.