April 30, 2018

ABA urges major restructuring of immigration courts

ABA President Hilarie Bass, testifying April 18 before the Senate Judiciary Subcommittee on Border Security and Immigration, urged a major restructuring of the nation’s immigration courts to ensure a fair and effective system for adjudicating immigration cases.

“We believe that restructuring the immigration adjudication system into an independent Article I court and increasing access to counsel and legal information are the best solutions to promote independence, fairness, efficiency, and accountability in the system,” Bass told the subcommittee.

She emphasized that the immigration courts issue life-altering decisions each day that may deprive individuals of their freedom, may separate families that include members who are U.S. citizens; and may be a matter of life and death for those seeking asylum. The current system, however, “lacks the basic structural and procedural safeguards that we take for granted in other areas of our justice system,” she said.

The immigration courts are under the jurisdiction of the Executive Office for Immigration Review (EOIR) in the Department of Justice with its personnel and operations subject to direct control of the U.S. attorney general. This, according to Bass is “a fatal flaw to the reality − and perception – of independence.”

Bass testified that any major system restructuring should be aimed at attaining the following goals: independence, fairness and perceptions of fairness; professionalism of the immigration judiciary; and increased efficiency.

The ABA proposal for establishing an Article I system would create a Standing Referral Committee to screen and recommend candidates for judicial appointments. The judges would have fixed terms and would only be removed by the appointing authority for incompetency, misconduct, neglect of duty, malfeasance or disability.

Bass cited current challenges to the independence of immigration judges, including a recent announcement by the Justice Department that the judges would be subject to case production quotas and deadlines as individual performance measures. The ABA instead recommends a judicial performance review model based on the ABA’s Guidelines for the Evaluation of Judicial Performance, which emphasize judicial improvement, process over outcomes, and judicial integrity and independence rather than rapid disposition of cases.

“Timeliness and efficiency are important but must not come at the cost of fairness and due process,” she said. She also emphasized the ABA’s support for the right to appointed counsel for vulnerable populations such as unaccompanied children and the mentally ill and disabled as well as for those who are indigent. Another important program, which the department had announced it was planning to suspend pending a cost-benefit review, is the Legal Orientation Program that provides legal information to detainees in immigration detention facilities across the county.

Also testifying at the hearing in support of establishing the immigration courts under Article I was Ashley Tabaddor, president of the National Association of Immigration Judges, who said that “Band-aid solutions alone cannot solve the persistent problems facing our immigration courts.” Other witnesses included EOIR Director James R. McHenry III; Rebecca Gambler, Government Accountability Office; and Andrew R. Arthur, Center for Immigration Studies. 

Back to the April 2018 Washington Letter