The ABA testified before the Senate Judiciary Committee May 18 that, although progress is being made toward improving the immigration court system, significant problems remain.
Committee Chairman Patrick J. Leahy (D-Vt.) convened the hearing following media reports about the challenges and delays that asylum-seekers face in the system. He noted in his opening statement that improvements are being made by the Justice Department’s Executive Office of Immigration Review (EOIR), which houses the immigration judges and courts as well as the Board of Immigration Appeals (BIA), but the administration’s heavy emphasis on immigration enforcement has led to a sharp increase in caseloads. The purpose of the hearing, he said, was to have a constructive discussion about what can be done with current resources to increase efficiency and improve the quality of administration in the immigration courts.
Karen T. Grisez, chair of the ABA Commission on Immigration, testified that “without question the most serious issue facing the immigration courts, and the one with the most significant impact on the speed and quality of case processing, is the lack of resources throughout the entire system.” She explained that the immigration courts have too few immigration judges for the workload for which they are responsible, and a lack of adequate staff to support immigration judges compounds the problem.
Grisez highlighted the findings of an ABA report released last year after a complete examination of the structure and processes of the immigration removal adjudication system. In addition to EOIR, the report studied the Department of Homeland Security’s U.S. Citizenship and Immigration Services, Customs and Border Protection, and Immigration and Customs Enforcement (ICE). The study also included the federal circuit courts.
At its February 2010 meeting, the ABA House of Delegates adopted many of the report’s recommendations for reform, including suggestions for making significant improvements in the operation of the immigration courts. Grisez said those recommendations include:
hiring enough immigration judges to bring the immigration judges’ caseloads down to a level roughly on par with the number of cases decided each year by judges in other federal administrative adjudicatory systems, and providing one law clerk per judge;
increasing access to counsel and legal information though various measures such as the Legal Orientation Program and the BIA Pro Bono Project; and
recognizing priorities and implementing smart procedures such as greater use of prosecutorial authority and prehearing conferences.
Addressing the asylum issues, Grisez recommended that asylum officers be authorized to approve defensive asylum claims, which include cases now heard in immigration courts involving those who are caught entering the country illegally or those who express a interest in applying for asylum when entering legally. The officers would be authorized either to grant asylum if warranted or otherwise refer the claim to the immigration court.
She also recommended the elimination of the one-year deadline for filing asylum applications because genuine refugees often have good reasons for failing to file their claims immediately or soon after arrival. Many of these cases could be resolved by DHS without a substantial amount of immigration court time being spent examining whether the filing deadline was met or if an individual is eligible for an exception to the deadline.
Julie Myers Woods, president of ICS Consulting and a former assistant secretary for ICE, testified that Congress should increase support of programs that provide basic education to immigrants about their rights so they may make informed decisions about going through the court process or participating in some sort of voluntary removal option. Myers, who also serves on the advisory committee for the ABA commission, highlighted current efforts by the pro bono community, assisted by the ABA, to develop a revised video on legal issues faced by immigration detainees and potential options for them. The video will be played at all detention facilities and should be played at intake/processing centers as well, she said.
EOIR Director Juan P. Osuna described improvements that have been made in the courts and said the DOJ will continue to seek additional resources. He noted that the president’s fiscal year 2012 budget proposes funding to support an increase of 125 EOIR positions (21 immigration judge teams and 10 BIA attorney positions).