August 13, 2019

ABA House approves six immigration proposals, range of timely resolutions

The American Bar Association House of Delegates, which determines association-wide policy, approved six new immigration policy positions on Tuesday, Aug. 13, that seek to bring fairness, integrity and consistency to U.S. immigration law and procedures.

The policy changes stem from a comprehensive review of the nation’s immigration adjudication system released earlier this year by the ABA Commission on Immigration. The report included more than 100 recommendations on how to make the system more independent, fair and efficient.

The ABA House of Delegates at the 2019 Annual Meeting in San Francisco.

The ABA House of Delegates at the 2019 Annual Meeting in San Francisco.

At the close of its two-day session, the House — made up of 594 delegates from state, local and other bar associations and legal groups from across the country — also adopted policy recommendations related to marijuana law, free-speech on campus and pay equity, among other topics. The House met at the end of the 2019 ABA Annual Meeting in San Francisco, which began Aug. 8.

The immigration policy measures are focused on changes that would bring more consistent enforcement, improve court procedures and judicial review and initiate systemic restructuring of the immigration adjudication system. Proponents of the new policies urged delegates to approve the changes to make the immigration judicial process more like Article I courts under the U.S. Constitution, rather than the current system that falls under the U.S. Department of Justice and the attorney general.

Mary Ryan, a Massachusetts lawyer and a leading proponent of the changes, observed that “over the past two years the executive branch” initiated a number of changes that have “greatly eroded” protections for asylum seekers in the immigration adjudication system.

As an example, she cited the current system in which the attorney general acts as a prosecutor and as an adjudicator. “This dual function has been cited as major conflict of interest,” Ryan said.

The policy changes include creating new standards under which the attorney general refers immigration cases to himself for decision and to standardize parole for detained immigrants. One also urges U.S. Courts of Appeal to establish or expand pro bono programs to provide pro bono representations to pro bono appellants. Specifically, the resolutions adopted were 121A, 121B, 121C, 121D, 121E and 121F.

During its meeting, the ABA House of Delegates:

  • Approved three access-to-justice related measures. Resolution 10A encourages online providers of legal documents to adopt the ABA Best Practice Guidelines for Online Legal Document Providers. Resolution 10B calls for legislation to ensure equal access to justice for Americans living in rural areas by assuring proper broadband access throughout the United States. And
    Resolution 116 seeks courts and interested stakeholders to review cellphone policies in courthouses to balance security risks with meaningful access to the judicial system, particularly for those who are self-represented or of lower income.

  • Adopted Resolution 10C, which urges colleges and universities to protect all members of their communities and all speakers on their campuses and other locations from censorship, intimidation or retaliation based on their opinions or beliefs. The accompanying report notes that “free expression is threatened, particularly on college and university campuses” and that schools should resist pressures seeking to censure a broad range of speech.

  • Decided by a 256-165 vote to postpone indefinitely Resolution 114 for further study. The proposal is related to the definition of consent in sexual assault cases. Proponents of the resolution said this would mitigate some of the gender bias inherent in rape law  
    while opponents said it would represent a “paradigm” shift in sexual assault cases and would potentially be unfair to defendants.

  • Adopted two measures related to criminal justice. Resolution 104 urges Congress to enact legislation to resolve the conflict between some state and federal law dealing with marijuana regulation. Resolution 105 supports policies to limit the possession of firearms in courthouses and judicial systems to only those persons necessary to ensure security, including on-duty law personnel.

  • Approved two resolutions related to compensation and fairness. Resolution 106 urges employers of lawyers to implement and maintain policies and practices to close the compensation gap between similarly situated male and female lawyers. Resolution 115B seeks legislation that would provide stronger remedies and protections against pay discrimination based on sex, including gender and gender identity; race and ethnicity; and for employees with disabilities to help overcome persistent barriers that impede the achievement of pay equity.

  • Adopted Resolution 115F that urges federal, state and local governments to refrain from imposing upon medical facilities or healthcare providers requirements that are not medically necessary or that have the purpose or effect of burdening patients’ access to healthcare services.

  • Approved Resolution 120 that urges the United States and other countries to take measures in response to the crimes committed against the minority Rohingya by the Burmese-Myanmar military. Proponents of the measure cited reports of widespread violations of human rights that have led to 700,000 Rohingyas fleeing their homeland.

The complete list of actions on resolutions and reports can be found here.