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February 01, 2019

Commission finds immigration reform desperately needed; major report coming this spring

Nine years ago, immigration experts from the American Bar Association issued a major report detailing flaws in the immigration justice system and recommending changes to make it fairer and more effective.

The result? “Anyone who reads the newspaper knows that things are not substantially better,” said Karen Grisez, a member of the ABA Commission on Immigration and special counsel at Fried, Frank, Harris, Shriver & Jacobson.

Now, after more than two years of work, the commission will publish a major new report this spring, updating the 2010 recommendations. Commission members and the report’s authors previewed their findings Jan. 26 at the ABA’s Midyear Meeting in Las Vegas.

Their conclusions were grim. “Unfortunately, since 2010, most reform efforts did not result in lasting improvements,” said Lawrence Schneider, senior counsel at Arnold & Porter Kaye Scholer, who helped write the new report.

Grisez ticked off a list of recommendations that were not adopted, including:

·       No legislative reforms that would have eliminated deportation risks for some groups, including “Dreamers.”

·       No elimination of mandatory detention.

·       No increase in prosecutorial discretion. “In fact,” Grisez said, “the opposite has occurred.”

·       No refinement of immigration enforcement priorities. “Again, the opposite,” Grisez said. “Everyone is now a target for removal.”

·        Perhaps most crucially, immigration courts remain under the control of the U.S. Department of Justice. Immigration judges are answerable to the U.S. attorney general. The report had recommended that immigration courts become fully independent.

Making things worse, Grisez said, there was a sharp increase in the number of immigration cases that then-Attorney General Jeff Sessions certified to himself. This “impaired the integrity of the process,” Grisez said, because the attorney general has the right to overturn any decision by an immigration judge.

“Immigration courts are in crisis,” Schneider said. “It is now more critical than ever that they move out of the DOJ and into an independent entity.”

One improvement: The Justice Department has hired more immigration judges, “but not nearly enough,” Grisez said. With increased immigration enforcement, and with not enough new resources dedicated to immigration courts, judges are falling hopelessly behind, she said. The national case backlog now stands at more than 800,000.

“The state of the U.S. immigration court system has worsened considerably since our 2010 report,” Schneider said.

Commission member Dora Schriro, former director of the U.S. Office of Detention Policy and Planning with Immigration and Customs Enforcement, also decried the current administration’s “alarming proclivity for punitive measures” against asylum-seekers. These include longer detentions “in increasingly harsh circumstances” with greater uncertainty about release, and with “fewer and fewer protections,” Schriro said.

The new report will address all these issues and more. It will be released at an event in Washington, D.C. The 2010 report is available online.