ImmPolitic

Welcome to ImmPolitic, the National Immigration Forum’s blog. Here we will comment on current developments in immigration policy and politics from the perspective of a Washington-based, national pro-immigrant organization.

Virtual Due Process

July 15, 2010 - Posted by Lena Graber

In the United States, due process is about having an adequate opportunity to present your story to an independent judge, to stand before a neutral decision maker and explain your situation to him or her.  Fundamental is the idea that the accused have the chance, in person or through their lawyer, to speak directly to a judge, respond to the evidence against them, and argue their case.

In immigration proceedings, where fundamental legal rights are determined and in some cases matters of life and death may be ruled upon, this basic principle of due process has been eroded beyond recognition.  Immigrants often testify not before a judge, but before a video camera, sign away their legal rights without translation or explanation, and are not allotted adequate time or attention for the judge to make a reasoned decision on their case.  Some of this has to do with changes made in the immigration laws in the past 15 years, as Congress has made it much more difficult for immigrants to have their day in court.  Some of the erosion of due process rights is the result of how the laws are implemented in the immigration courts.

Today, the immigration courts have notorious backlogs in their caseloads, and immigration judges hear far more cases per year than their counterpart administrative judges in other tribunals.  Another key problem is the lack of any legal representation for the majority of immigration respondents, particularly those who are detained.  (84% of immigrants who appear before the immigration courts while in Department of Homeland Security custody are not represented by a lawyer.)

In February, the ABA, in an exhaustive study of the entire immigration court system, found among other problems that resources for immigration courts are insufficient; that decisions among different immigration judges are highly inconsistent; that judges have inadequate time to sufficiently consider cases; and that DHS attorneys did not properly use discretion in weeding out less important issues or cases. 

Congress occasionally takes a look at the immigration court system.  On June 17, the House Subcommittee on Immigration, Citizenship, Refugees, Border Security, and International Law held an oversight hearing on the Executive Office for Immigration Review (EOIR), the office within the Department of Justice under which the immigration courts are organized.  In her remarks, Chairwoman Zoe Lofgren noted that,

“At a time when resources dedicated to the apprehension of illegal immigrants have rapidly increased, there has not been a corresponding increase in resources necessary for the immigration courts…”

One way the courts have been dealing with lack of resources is to adopt the expediency of video teleconferencing.

Aaron Haas recently described a video conference in a Harvard University publication:

“It may surprise many people to witness an immigration hearing in present-day America….  They are likely to see a small room deep within a large federal building, with two tables perpendicular to one another, connected to form a right angle. At each table sits a lawyer, one representing the government and the other the alien. A row of chairs behind these tables and against the walls seat the family and friends of the subject of these proceedings. On the other side of the room, in view of the advocates and observers, is a television screen with a camera on top. This monitor shows, on one side of the screen, the judge, who may be located in another state, and on the other side, the immigrant, who is seated in a detention center in a third location.”

Lawrence Schneider, speaking recently on a panel at the Annual Immigration Law and Policy Conference organized by Georgetown University, the Migration Policy Institute, and the Catholic Legal Immigration Network, painted a picture of a video- conference hearing and raised questions about it,

“Videoconferencing presents fundamental conflicts to adequate representation, for the lucky immigrant detainees who do have counsel.  Picture this: the judge is in one location, speaking to a screen, and the immigration respondent is in a detention center hours away, looking back at a screen.  Where is their lawyer?  Does she go to the detention center to confer with her client, or go to the courtroom or office where the judge sits, to speak to them directly?”

Videoconference removal hearings, rather than physical appearances, were permitted by federal statute in 1996, and have increased in usage considerably in recent years.  The ABA, in its study mentioned above, found that videoconference hearings, which have become the only form of hearing for a great number of immigration detainees, can prevent the noncitizen from communicating effectively and confidentially with counsel, and impair the immigration judge’s ability to make accurate credibility determinations.  Close to 50% of the EOIR docket are detainee cases, and many immigration courts only allow detainees to appear for their hearings over videoconference.  This number will only rise as the courts search for efficiencies, and the detained docket grows as a proportion of the cases before the courts.

The ABA’s analysis of 500,000 cases found that videoconferencing doubled the likelihood that an asylum applicant is denied.  In addition, 45% of proceedings have technical problems, including lack of translation, interruption of the video feed, and lack of access to counsel. 

Videoconferencing is unquestionably cheaper than in-person hearings.  But at what cost to the integrity of our judicial system?  While modern technology has in many cases expedited and improved due process, it has also eroded that fundamental right to stand before a judge and present your case.  The ABA recommended that only procedural matters be decided by videoconference, while hearings on the merits should require in-person testimony.  It should be obvious that having one’s day in court assumes that one is actually in the courtroom.

Due Process

A Separate Reality

March 11, 2010 - Posted by Maurice Belanger

 
Images: (c)iStockphoto/Simon McConico; (c)iStockphoto/helenecanada

There was a happy ending recently in the case of a man from China who was to be deported under rules set by an immigration law passed in the mid-1990s. It took a governor’s pardon to protect Qing Hong Wu from the parallel universe that has developed for legal immigrants who get into trouble with the law.

In 1996, Members of Congress were still reacting to anti-immigrant sentiment that began in California and swept across the country. They enacted a pair of laws-the Illegal Immigration Control and Immigrant Responsibility Act (IIRAIRA) and the Anti-Terrorist and Effective Death Penalty Act (AEDPA)-that created a reality separate from the normal criminal justice system.

Among other things, the law expanded the definition of “aggravated felony.” In the universe of the American citizen, the label “aggravated felony” is reserved for serious crimes-murder, rape, violent crimes, and like offenses. In the parallel universe created by the 1996 laws, an aggravated felony for a legal immigrant might be, say, shoplifting-if it results in a sentence of a year or more. It doesn’t matter whether the sentence was served or suspended.

Other features of the separate reality include mandatory jailing and removal from the U.S. Courts were stripped of their jurisdiction to hear appeals in these cases. Congress made these laws retroactive, so an immigrant’s future behavior mattered little if his or her past behavior resulted in a criminal conviction. In this parallel universe, rehabilitation counts for nothing, and immigration judges have no authority to consider individual circumstances.

After the passage of these laws, the papers were filled with bizarre stories such as that of Olufolake Olaleye of Georgia who, several years before the laws were passed, was convicted of shoplifting and given a one-year suspended sentence. In 1996, by virtue of Congressional action, she became an “aggravated felon” and was placed in deportation proceedings.

In the case of Mr. Wu, he immigrated to the U.S. from China with his family when he was five. His parents led a very typical life of low-income immigrants coming to this country-they worked hard and long hours. They were not able to monitor the type of crowd their son hung out with. With his friends, he committed a series of muggings. He was 15 when he was sentenced to three to nine years in a juvenile facility. The Judge who sentenced him, Michael Corriero, promised Mr. Wu that if he turned his life around while in the reformatory, “I am here to stand behind you.”

Turn around his life is what Mr. Wu did. He earned release after three years, went to work, and eventually became Vice President for IT at a real estate financial management company. He had success. What he didn’t have was U.S. citizenship. It was time to apply.

That’s when Mr. Wu entered the parallel universe where Mr. Wu’s good behavior doesn’t count, nor do his other circumstances—he has a U.S. citizen fiancée, he financially supports his elderly mother. His long-ago criminal record came to the attention of the immigration authorities. He was jailed, and the immigration agency began proceedings to send him back to China.

Brian Hale, a spokesman for Immigration and Customs Enforcement (ICE), told the New York Times,

“This administration is committed to smart and effective immigration policies that place an emphasis on the deportation of criminal aliens. While we are not able to discuss any individual cases, ICE will enforce the law, and if an individual has been convicted of a serious or dangerous crime, we will take the appropriate action, including deportation.”

Smart and effective immigration policies? One would hope that a spokesperson for our immigration enforcement agency would be able to distinguish between someone who is a threat to society and one who ceased being a threat a decade and a half ago.

The agency has to enforce some stupid laws, and it would be better for all concerned if their representatives used these sorts of incidents to educate us about that fact. What Mr. Hale should have said was something like, “Look, it is an incredible waste of agency resources and taxpayer dollars to lock up someone like Mr. Wu who learned from his mistakes 15 years ago and who has been a very productive resident of New York ever since. We need Congress to act to make the laws more rational.”

Mr. Wu was lucky. Judge Corriero (now retired) kept his word, and joined Mr. Wu’s boss, the Police Benevolent Association, Mr. Wu’s fiancée, and dozens of others in petitioning Governor Paterson for Mr. Wu’s pardon.

The pardon was granted, wiping away the criminal record that served as the basis for Mr. Wu’s deportation. In his Press Release, the Governor said,

“Qing Hong Wu’s case proves that an individual can, with hard work and dedication, rise above past mistakes and turn his life around.”

That’s just common sense. It shouldn’t have to take a governor’s pardon to point that out. Our immigration laws should allow for rehabilitation. Individual circumstances should be taken into account when deciding whether it makes sense to boot someone out of the country.  That would be “smart and effective” enforcement.

Due Process

Matching Funds for Due Process

February 15, 2010 - Posted by Maurice Belanger

Our friends at the National Immigrant Bond Fund recently posted a video recalling an immigration raid that was conducted on a printer factory in Van Nuys, California (Southern California) two years ago.  More than 100 armed ICE agents stormed the factory and arrested 150 workers.  Immigrants were required to wear an electronic monitoring bracelet (and were required to have a land line phone so they could be reached).  The alternative to this virtual house arrest was release on bond.

It is often the case that immigration violators who have been arrested and detained (or, in this case, having to stay where their movements can be monitored) cannot scrape together the money to make bond even if they are offered release on bond.  If a defendant cannot make bond, chances are slim that the individual will be able to assert his or her due process rights—by, for example, pursuing avenues that may be available to stay in the U.S.  They are much more likely to be deported even if they might have had a valid claim to stay in the U.S.

Being out on bond makes it much more likely that the individual will be able to find an attorney and get other assistance.  In the case of the immigrants picked up in the Van Nuys raid, being released on bond allowed them to have their day in court.  Many of them had remedies available to them.  According to the video, after two years everyone who wants to be in the U.S. is still here. 

When an immigration raid happens, even where there is an outpouring of support in the community for the arrested immigrants, there is only so much a community can do to help.  The Bond Fund makes the community national.  It aggregates donations from people who want to help no matter where they live.  It works with local organizations in communities that have suffered an immigration enforcement action and loans money to match funds raised by the detainee’s family and friends.  This way, one community does not have to shoulder the burden of helping all of the victims of a raid come up with funds to gain their release and assert their due process rights.

A donation to the Bond Fund is one way you can help immigrants gain a little bit of justice while we all wait for Congress to act so that immigrant workers and family members no longer need fear being jailed for working without permission.

To see the video, and to make a donation to the Bond Fund, click here.

Photo by Flickr user srqpix.

Detention Due Process

Operation Streamline a Waste of Taxpayer Dollars Says Judge

February 11, 2010 - Posted by Lena Graber

Last week, U.S. District Judge Sam Sparks decided he had had enough.  The three defendants in his Austin, Texas, courtroom, prosecuted under 8 U.S.C. § 1326 for illegal re-entry into the United States, with no other criminal history, had already cost U.S. taxpayers more than $13,000 in jail expenses, instead of having been removed to their home countries through the immigration system.  This tab did not include the costs associated with their prosecutions, such as courtroom personnel, U.S. Marshals, and lawyers.

In Judge Sparks’ district, the Western District of Texas, prosecutions based on immigration crimes constitute more than 80% of the federal criminal docket.  The large majority of defendants facing petty immigration prosecutions are simply migrants who have crossed the border illegally to work or reunite with family; very few of them have any criminal history. It’s no wonder the Judge was fed up.  Lambasting the U.S. Attorney’s office for insisting on clogging the dockets with these low-level prosecutions, Judge Sparks ordered the prosecutors to state specific substantive reasons for all such prosecutions in his court in the future. 

How did a U.S. District Judge end up giving orders on immigration policy?  These prosecutions are a result of Operation Streamline, a multi-agency program launched in Texas in 2005, that includes federal criminal prosecution and jail time for all unlawful border crossers, rather than sending them through the immigration courts.  Because Operation Streamline sweeps in so many people, courts in Tucson and Del Rio have resorted to holding en masse hearings and sentencings, with up to 80 defendants, sometimes defended by as few as one or two attorneys, prosecuted in the space of a couple hours.  In December, the Ninth Circuit Court of Appeals ruled that the proceedings in Tucson violated federal rules, and forced the courts to slow down.  Still, total prosecutions have continued at record levels.

As a result of Operation Streamline, federal courts, prosecutors, defenders, and U.S. Marshals along the southwest border have experienced skyrocketing workloads and serious strains on their resources, as recently reported by the Warren Institute at U.C. Berkeley.  The Warren Institute report questions the constitutionality of en masse proceedings, and also challenges the claimed deterrent effects of Operation Streamline, observing that illegal entries have decreased all along the border because of the economy, even in jurisdictions where Operation Streamline is not in effect.

Immigration prosecutions now constitute more than half of all federal prosecutions nationwide.  Between 2003 and 2008, while immigration cases increased dramatically, other types of prosecutions, from drug smuggling to white-collar crime to weapons prosecutions, fell significantly.  Almost two thirds of immigration prosecutions in 2009 were of first-time illegal entry cases.  Judge Sparks remarked in his order that “The United States Attorney has been specifically requested for at least a two-year period to be more careful to screen the illegal entry or re-entry cases for prosecution and only prosecute those with meaningful criminal records.”

“The expenses of prosecuting illegal entry and re-entry cases (rather than deportation) on aliens without any significant criminal record is simply mind boggling,” Judge Sparks wrote.  As Te-Ping Chen, a journalist who covers criminal justice issues commented, “It’s a pretty bizarre system that decides to punish people for entering the United States by … making them stay in the United States, in jail—and on the taxpayer’s dime, as well.”

Of course, this wasteful application of the criminal justice system would not even be an issue if Congress acted to update our immigration system so that there were more legal pathways to come to the U.S.  While we are waiting for a more fundamental change to the immigration laws, Congress should, as it considers appropriations for Fiscal Year 2011, look at cutting back on Operation Streamline and saving the taxpayers some money.

Due Process Enforcement

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