Given that the immigration courts currently are failing to provide a fair, efficient, and effective system of justice, one would have anticipated that the “Immigration Court” subtitle of an 844-page bill would span more than 11 pages. But the Gang of 8 took a minimalist approach when it comes to immigration court reform. Nonetheless, the bill offers several measures that could have a significant impact on the administration of justice.

To address the crushing backlogs at the immigration courts, the bill proposes to increase the number of immigration judges by 225 over the course of three years. That would represent about an 87% increase. Moreover, the bill would provide immigration judges with additional resources—law clerks, legal assistants, improved training (including continuing legal education), and updated recording technology. The bill also makes it clear that noncitizens ordered deported have the right to appeal their decision to a three-member panel of the Board of Immigration Appeals, and that the Board must issue a written opinion responding to the appeal arguments. Moreover, in a separate sub-title, the bill amends the stipulated removal process (whereby a person gives up his or her right to contest removal) to require an in-person hearing to determine that the stipulation is voluntary, knowing, and intelligent.

Most notably, the bill proposes important steps toward ensuring access to legal advice and representation. It mandates that all detained individuals be provided a legal orientation program within five days of arrival in custody, authorizes the Attorney General to appoint counsel at government expense as a matter of discretion, and directs the Attorney General to appoint counsel to “unaccompanied alien children,” individuals with serious mental disabilities, and other particularly vulnerable noncitizens.

Are these steps toward a fair, efficient, and effective system of justice?

What additional procedural reforms are needed? Should we have some that address video hearings, access to the government’s evidence, and judicial independence?

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  • Mark Noferi

    Here’s my take on the appointed counsel, detention, bond, and stipulated removal provisions which Beth pointed out:–stipulated-removal-provisions-of-senate-bill-.aspx

  • Mark Noferi

    Although this is a step forward, there is no good reason not to provide appointed counsel, especially to detainees, rather than halfway steps like the Legal Orientation Program. If detainees need advice, they should receive it from lawyers. My article Cascading Constitutional Deprivation addresses this: (18 Mich. J. Race & L. 63) (2012).

    Indeed, the federal government already appoints counsel for everyone else it locks up—civil or criminal, citizen or not. Congress decades ago provided appointed counsel to pretrial criminal detainees. In 2006, it provided counsel to sex offenders in post-conviction civil commitment proceedings; and in 2012, to Al Qaeda suspects. Appointed counsel to immigrant detainees would not provide “greater” protections for so-called “illegal aliens.” Rather, it would provide equal access for all to legal representation from jail, in line with American values. And politically, if Congress can provide appointed counsel to Al Qaeda without blowback, it can provide counsel to detained lawful permanent resident green card holders, at the very least.

  • DC Drake

    Unless I am mistaken, I do not see any provisions regarding the unauthorized practice of law in the Senate Bill. This was a prominent feature of the 2007 bill. I wonder why they left it out? Any new laws will be accompanied by the same old charlatans, and have the ironic effect of adversely affecting the very people the bill seeks to assist: the currently undocumented.

    • Emily Creighton

      The bill includes some provisions related to the unauthorized practice of law in the “Interior Enforcement” section:

      It authorizes the Secretary of DHS and the Attorney General to create regulations and procedures defining when a person who assists an immigrants complete a form must be identified

      In requires that any person who receives compensation in connection with preparation of an application or other submission sign as a “preparer.”

      It empowers the Attorney General with injunctive authority to act against any “immigration service provider” at the federal level— whether well-meaning or unscrupulous. This authority extends to conduct that substantially interferes with proper administration of immigration laws or misrepresentation regarding a provider’s legal authority to represent immigrants.

      It defines “Immigration service provider” is any individual or entity (other than an attorney or BIA representative) who provides any assistance in relation to an immigration matter, and

      It amends the criminal code and increases criminal punishments for schemes to provide fraudulent immigration services.

  • Roxi Dillon

    If we talk about economics in the immigration process, why do people need to go to their country to finalize the process of becoming a U.S. resident? it does not make sense. All the people who apply for legal residency IN THE U.S. should do their process from beginning to end HERE in the USA, if they are already here in the USA. People who are outside of the USA should do their process in their country. All the money that one would need to spend to go to their country, could be spent here in the US by paying an extra fee. Basically, the Section 245(i) should be reinstated in the USA.

  • Roxi Dillon

    EOshiro, if they talk about “reunification of family”, then by trying to eliminate the sponsorship of a U.S. citizen’s brothers and sisters, does not reflect their “goal”. In many other cultures, especially the latin culture, family is a BIG BOND, so much that even aunts or uncles or grandparents many times take care (raise) somebody else’s children. So when one of the siblings is in another country, in this case the USA, that person would become more “complete” in his being, if one or more or all his family eventually relocates to the USA, so they can continue living as “a family”.

  • Mark Noferi

    The NY City Bar issued letters and a statement on appointed counsel in immigration proceedings:

    The letter urges the Senate to go further and provide counsel to any indigent non-citizen facing deportation, especially those jailed in detention during proceedings. A recent poll shows that 76 percent of Americans, including 87 percent of Democrats and 67 percent of Republicans, support the provision of legal counsel in deportation proceedings. “Without a lawyer, individuals (who also face language and cultural barriers) are unlikely to even know what facts will help them make their case, let alone argue it,” the letter states. Moreover, the letter states that appointing counsel reflects American values of fairness and due process when high stakes or jail are on the line, regardless of the defendant’s identity: “[T]here is no citizenship test for counsel in America.”

    Additionally, appointed counsel would save—not cost—taxpayer dollars. The letter cites a study, co-authored by Immigration and Nationality Law Committee Chair Lenni Benson, supporting that counsel would prevent unnecessary court proceedings, reduce the time non-citizens spend in detention, and reduce the need for government support to disrupted families.