Restore Fairness and
Due Process to Our Immigration System
By: Allen E. Kaye
Issue: Current reactionary
laws against immigrants go too far and deny basic due process
to millions of people who live in the U.S. Inadequate due
process protections in our current law and a failure by
the federal government to guarantee due process protections
have led to the following crisis:
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Low-level immigration officials act as
judge and jury, and the federal courts have been
denied the power to review most agency decisions.
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Long-time residents with strong ties
to the community who pay taxes are subject to
deportation and judges have little ability to weigh the
individual circumstances of the
case.
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U.S. citizens, the mentally ill, children
and other vulnerable individuals who should not
be in ICE custody have been mistakenly detained.
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ICE officials have entered private homes
in some residential raids without a warrant
and questioned individuals about their immigration status.
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Mothers responsible for caring for their
small children have been detained and
transferred to detention facilities thousands of miles
away from their families and
attorneys, making it difficult to defend themselves in
court.
Long-term relief: Restoring
basic due process protections must be among our
government’s paramount priorities. When we let the
government deny due process for some in our nation, all
of our freedoms are at risk. Moreover, when our immigration
system fails to reflect core values of fairness and transparency,
it undermines respect for the rule of law. AILA believes
that our laws must embody the following principles:
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Provide a safety valve by giving judges
the discretion to evaluate the circumstances in individual
cases. Current law strips immigration judges of the discretion
they should have to evaluate cases on an individual basis
and grant relief to deserving immigrants and their families.
Immigration judges don’t have the discretion to
consider the facts of a case, the length of time the person
has lived in the U.S., or the individual’s contributions
to the community. Judges should have the authority to
consider all the facts of a case before making a decision
to deport a legal resident or undocumented immigrant,
and they should have the discretion to grant relief in
deserving cases.
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Don’t put the law in the hands
of agency clerks: empower federal judges to review
agency decisions. The decision to deport is momentous,
especially for refugees fleeing
persecution and for those legal immigrants who have lived
most of their lives in this country. Under current law,
the federal courts have been stripped of their jurisdiction
to review most deportation and agency decisions. Important
issues of fairness and justice are at stake, and we should
ensure that there is adequate judicial review of immigration
orders and decisions. Our judicial system is one of checks
and balances, and immigrants deserve their day in court.
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. Immigrants should have a fair day in
court and immigration appeals should
receive the attention they require. Currently, immigration
judges are under pressure to
make difficult, life altering decisions from the bench
with little or no staff and overflowing dockets, resulting
in sloppy, sometimes arbitrary decisions. Immigration
judges’ decisions are frequently affirmed without
opinion by a single Board of Immigration Appeals member,
thus depriving noncitizens of redress when those decisions
are not supported by the law or facts in a case. The Board
of Immigration Appeals (BIA) must have a sufficient number
of judges to do its job fairly and efficiently and the
BIA should end its practice of issuing one or two-sentence
summary opinions. The immigration court system should
be reformed to promote independence, fairness and accountability.
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The detention of individuals is an extraordinary
power that should only be used in extraordinary circumstances.
Current law requires Immigration and Customs
Enforcement (ICE) to put immigrants in jail even when
they pose no danger to the
community or flight risk. AILA supports reforms that would
require the Attorney General
to release an immigrant from detention if he or she does
not pose a danger to the
community and is likely to appear for any scheduled proceeding.
To ensure that detention is not used to separate American
families needlessly, ICE should utilize cost-saving
community-based alternatives to detention programs that
require immigrants to show up for their court proceedings.
We need to focus enforcement operations on people who
mean to do us harm, not legal permanent residents who
have jobs and families here, contribute to their communities,
and share the same security concerns as the rest of us.
Most importantly, Congress should ensure that detention
conditions are humane and safe- too many detainees have
died in detention as a result of inadequate medical care
and poor treatment.
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Give the government the discretion to
recognize immigrants’ strong ties to their
American families and communities. Under current law,
the “three and ten year bars”
and the “permanent bar” prevent U.S. citizens,
lawful permanent residents and employers
from successfully sponsoring many qualified immigrants
for permanent residence. Because of these provisions in
our immigration law, we are not fully utilizing our current
legal immigration system. Congress should provide discretionary
relief and allow DHS to consider factors such as the immigrant’s
length of residence in the United States; history of employment
and business ties; family ties in the United States; military
service; community contributions; any adverse impact on
U.S. employers or the local community; or other national
or local interests in the event of the immigrant’s
deportation from the U.S.
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Make the punishment fit the crime. In
America, the punishment should fit the crime.
Not allowing judges to consider the circumstances of a
case violates this principle and does not solve the problem
of undocumented immigration. In many cases, our current
laws require the deportation of long-term residents based
on minor crimes and judges are given little to no discretion
to forego their deportation. We need to allow judges to
consider the circumstances of each individual case including
the severity of the crime and decide what is best for
that situation.
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Don’t change the rules in the middle
of the game. Currently, thousands of legal
immigrants face removal for offenses that occurred many
years ago, some of which were not offenses that would
result in deportation at the time they occurred. Making
laws retroactive is unconstitutional in criminal law,
and Congress should eliminate retroactive laws in theimmigration
context as well.
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. ICE raids should respect due process
and other Constitutional protections. In
recent months, immigrant communities have reported the
use of warrantless raids by ICE,
racial profiling during ICE operations and situations
in which detainees have been
transferred far from their legal counsel and their families
following a raid. Congress should ensure that individuals
encountered during raids are treated fairly through enhanced
training requirements and internal guidance about the
use of warrants and interrogation techniques and codification
of procedures related to the treatment of detainees. Most
importantly, ICE should ensure that the rights of immigrant
workers are protected, and that appropriate attention
is paid to the safety and welfare of children and their
families.
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Any national employment eligibility verification
system should respect due
process: Members of Congress are currently proposing mandatory
verification systems that are based on deeply flawed databases
containing erroneous information, resulting in an unacceptably
high number of false positive "hits" when put
into use. The U.S. should not mandate implementation of
an employment-eligibility verification system without
requiring the government to meet accuracy benchmarks prior
to implementation or without providing safeguards for
workers and employers. Mandating an eligibility verification
program without providing a path to legal status for undocumented
workers will only intensify our current crisis.
While we believe a long-term solution
is vital, Congress should take immediate steps
to provide short term relief:
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Only through a realistic, long-term solution
for the undocumented population living in
the U.S., and targeted, effective enforcement of realistic
laws will we gain control over
our immigration system. In the interim, we should strenuously
avoid half-baked
measures that will do lasting damage to our country such
as the SAVE Act.
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We should enact a short-term package
that provides immediate relief to businesses and
communities that currently have no safety valve to allow
deserving immigrants to
remain in our country. Judges and agency officials should
be given the discretion to
evaluate the facts of each individual case.
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Congress should ensure that individuals
encountered through raids and those placed in
detention are treated humanely through codification of
standards on interrogation and
detention conditions.
Current Legislation: Several
bills have been introduced this Congress to help restore
dueprocess to our system and while we welcome these efforts,
these bills provide much-needed relief for too few people.
AILA supports these bills as first steps toward a solution:
The Families First Immigration Enforcement
Act (S. 2074/H.R. 3980), introduced by
Sen. John Kerry (D-MA) in the Senate and Rep. Hilda Solis
(D-CA) in the House, would
require ICE to afford access to state social service agencies
to screen and interview detainees following a raid. Where
it is determined that an individual has humanitarian grounds
for release, ICE would be required to prioritize that individual
for detention in the local area. ICE would be required to
provide a toll free number for families to use after a raid
to determine the location of their loved ones.
The Child Citizen Protection Act (H.R.
1176) introduced by Congressman Jose Serrano
(D-NY), Jerrold Nadler (D-NY), Gary Ackerman (D-NY), and
Ed Towns (D-NY), would
allow an immigration judge to consider the best interest
of U.S. citizen children before
deporting a parent.
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