Appleseed Position Statement on S.744

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Appleseed Position Statement on S.744:

Improving the Accuracy, Legitimacy and Efficiency of the United States Immigration Court System

 

Appleseed applauds the Senate Judiciary Committee’s recent significant consensus on S.744 and enthusiastically supports several aspects of the proposed legislation and amendments. Appleseed has long advocated for the kind of common-sense reforms in S.744 that will improve the accuracy, legitimacy and efficiency of the United States immigration court system. For the last several years, Appleseed, Chicago Appleseed and Texas Appleseed have reported on systemic impediments to justice and economic opportunity and crafted effective, comprehensive solutions for individuals and communities on the margins of society, including, in particular, immigrants. Appleseed’s advocacy has been based on substantial investigation, resulting in several relevant reports, including Reimagining the Immigration Court Assembly Line (.pdf) in 2012, Children at the Border (.pdf) in 2011 (in collaboration with México Appleseed), Justice for Immigration’s Hidden Population (.pdf) in 2010, and Assembly Line Injustice (.pdf) in 2009. Specifically, Appleseed supports the following provisions that were included in S.744:

 

  • Coons Amendment No. 5: Right to Review Certain Documents in Removal Proceedings. Immigrants cannot be expected to defend themselves from removal proceedings without ready access to relevant documents. Under current practice, immigrants in removal proceedings must file Freedom of Information Act requests to obtain non-privileged, unclassified documents relating to their immigration status and the charges brought against them, a process that results in delays in proceedings and denies basic due process to the immigrants. Appleseed wholeheartedly supports this amendment to S.744 that requires DHS attorneys to automatically produce relevant, non-privileged, unclassified documents to immigrants and suspends removal proceedings until immigrants have received such documents.

 

  • Section 3501: Shortage of Immigration Court Personnel For Removal Proceedings. Appleseed has reported on the crushing case loads assigned to the current pool of Immigration Judges and staff, which results in long delays and has an adverse impact on Immigration Judges’ ability to hear cases fully and fairly. S.744 addresses this issue by requiring the Attorney General to increase the total number of Immigration Judges by at least 75 and total number of Board of Immigration Appeals staff attorneys by at least 30, in each of fiscal years 2014, 2015, and 2016. In addition, S.744 requires the Attorney General to ensure each Immigration Judge has assistance from one staff attorney or law clerk and one legal assistant.
  • Section 3502: Improving Immigration Court Efficiency and Reducing Costs By Increasing Access to Legal Information. Appleseed’s reporting has shown that the immigration court system is more fair and efficient when immigrants have representation in removal proceedings. S.744 correctly addresses this concern by providing that the Attorney General shall appoint counsel, at the expense of the Government if necessary, to represent unaccompanied alien children and aliens with serious mental disabilities in removal proceedings.
  • Section 3503: Office of Legal Access Programs. Those immigrants who do not have access to counsel can be helped greatly by legal orientation programs. Appleseed has advocated improved education of aliens on their rights during proceedings and basic understanding of immigration court procedure. S.744 establishes the Office of Legal Access Programs, which will develop a system of legal orientation programs to educate aliens regarding their legal rights and administrative procedures. Significantly, the programs will assist aliens in making informed and timely decisions and will identify vulnerable aliens in need of representation.
  • Section 3504: Codifying Board of Immigration Appeals. Appleseed supports the requirement set forth in S.744 that the Board of Immigration Appeals shall issue a written opinion on appeal, as it has been shown that this practice reduces the number of federal court appeals and results in a more fair and efficient system.
  • Section 3505: Improved Training for Immigration Judges and Board Members. Appleseed has shown that in the past, immigration judges have been poorly trained, resulting in erroneous decisions and unprofessional courtroom behavior. Appleseed has recommended the improved training of Immigration Judges in conducting immigration court proceedings, as well as in the substantive area of immigration law. Topics covered should include cultural competence, country conditions, bias, professionalism, and how to conduct a hearing, assess credibility and exercise discretionary power. Appleseed supports S.744’s requirement that the Director of EOIR to review and modify training programs for Immigration Judges and Board Members.
  • Section 3506: Improved Resources and Technology for Immigration Courts and Board of Immigration Appeals.
  1. Appleseed has reported on the need to ensure that removal proceedings adhere to the basic standards of due process and fairness, including Immigration Judges’ conduct of the proceedings consistent with immigration law requirements. Appleseed supports S.744’s requirement that the Director of EOIR produce updated reference materials, standard decision templates, and a practice manual describing best practices for the courts, which will promote consistency and uniformity in the conduct of removal proceedings.
  2. Appleseed has expressed concern over the quality and availability of recording technology in the immigration courts. Over the past few years, EOIR has been replacing outdated cassette tape recording systems with digital recording systems, but the process has been slow-going. S.744 mandates an explicit plan and schedule for replacement of the recording systems, which will hopefully expedite the process and improve accuracy of recording during court proceedings. In addition, S.744 requires the Director of EOIR to report to the Attorney General on current transcription services and recommendations to improve the system.
  3. Understanding the full proceeding, including any communications from the court and other witnesses, is critical to a fair hearing for immigrants. Appleseed has specifically focused on the unfairness that results from an alien’s inability to understand the proceeding, due to inadequate interpretation services. S.744
  4. Requires the Director of EOIR to report to the Attorney General on the current interpreter selection process and recommend improvements in this process regarding screening, hiring, certification, and evaluation of interpreters.
  • Hirono Amendment No. 22 & Section 3611: Protecting Child Trafficking Victims. The Trafficking Victims Protection Reauthorization Act allows DHS to return Unaccompanied Mexican minors at the border only if they are determined not to be a victim of trafficking, not to fear harm upon return, and can and do make a voluntary and informed decision to return to Mexico. Appleseed has found that unaccompanied Mexican minors are not provided adequate screening, orientation or advice before being returned. Hirono Amendment No. 22 adopts several reforms to protect child trafficking victims, including the mandate that unaccompanied alien children be duly transported and placed in the care of the Office of Refugee Resettlement within 72 hours of apprehension. Hirono Amendment No. 22 also provides that unaccompanied children have access to Child Welfare Professionals; the Secretary adopt fundamental child protection policies and procedures; and the Administrator of the U.S. Agency for International Development create of a program to ensure safe repatriation and reintegration of unaccompanied alien children into their country of nationality.
  • Hirono Amendment No. 24 & Section 104: Ombudsman for Immigration Related Concerns. Appleseed supports the proposal to grant the Ombudsman the authority to propose changes in the administrative practices of the immigration components of the Department, as well as to review and make recommendations regarding immigration and enforcement policies, strategies and programs.

 

S.744 and amendments will improve the efficiency and accuracy of U.S. immigration court proceedings and provide necessary protections for vulnerable populations, specifically unaccompanied minors and persons with serious mental disabilities. Appleseed congratulates the Senate Judiciary Committee’s initiative and success in reaching a consensus, and would welcome the opportunity to discuss these reforms further.

 

Steven H. Schulman, pro bono counsel and Appleseed Board Member, partner at Akin Gump Strauss Hauer & Feld LLP

Betsy Cavendish, President, Appleseed

Malcolm Rich, Executive Director, Chicago Appleseed Fund for Justice

Rebecca Lightsey, Executive Director, Texas Appleseed