Immigration Visa Attorney Blog

The American Bar Association recently released an executive summary on the findings of a study conducted to understand the current U.S. system for removal. It discribed the current system as "crisis." The study focused on the four governmental bodies that handle removal cases, namely the Department of Homeland Security (DHS), the Immigration Courts, the Board of Immigration Appeals (BIA) and the Federal Circuit Courts of Appeals. Not surprisingly, the report found that the four governmental bodies have actually contributed to the problems associated with the overwhelming number of removal cases and "are not doing as good a job as they should" in providing fair decision making and due process. To rectify these problems, the executive summary suggests a complete overhaul of the current removal system, but also provides scaled-back reforms that would require less political impetus to be realized.

With the goals of ensuring political independence and adjudicatory fairness, as well promoting greater efficiency and professionalism, the executive summary proposes three alternatives for revamping the system. The first option would be to create an independent Article I Court to replace the Immigration Courts and BIA. The trial function of the Immigration Courts and the appellate function of the BIA would both be handled by the Article I Court. The second approach would, similarly, eliminate the Immigration Courts and BIA, but replace them with an executive adjudicatory agency. The third, and final, proposal is considered the hybrid approach. The Immigration Courts and BIA would be replaced by an administrative agency that would handle trial-level cases and an Article I Court that would hear appeals. The executive summary ultimately concludes that the Article I Court is the best option, with the administrative agency being a close second. Despite the apparent advantages of the hybrid approach, the authors of executive summary do not endorse this method "since it is too complex and too costly relative to the other two options."

Acknowledging that overarching changes would take significant time to implement, if ever fully realized, the executive summary makes recommendations for smaller scale initiatives that could be undertaken to foster more immediate change. The suggestions, which would require the enactment of legislation, include:

• Requesting additional immigration judges;
• Permitting all eligible non-citizens to adjust to lawful permanent residence or eliminate bars to entry;
• Amending the definition of "aggravated felony" and eliminating retroactive application of such provisions;
• Curtailing the use of the administrative removal process by DHS and the use of expedited removal for non-citizens at the border or within the U.S.;
• Amending the definition of "crime involving moral turpitude";
• Eliminating or narrowing the mandatory detention provisions to persons who are clearly a risk;
• Restoring judicial review of discretionary decisions under an abuse-of-discretion standard;
• Permitting the Federal Circuit Courts of Appeals to remand cases to the BIA for further fact finding;
• Extending the deadline for filing a petition for review of a BIA decision; and
• Establishing a right to representation in adversarial removal proceedings and for individuals in groups with special needs.

Given the current contentious political climate, reforms that can only be accomplished through legislation seem highly unlikely to come to fruition anytime soon. Alternatively, the governmental bodies should concentrate on implementing the proposed reforms that do not require legislative action. These reforms include:

• Increasing the use of prosecutorial discretion by DHS officers and attorneys and giving DHS attorneys greater control over removal proceedings;
• Requiring asylum claims arising in expedited removal proceedings be adjudicated by asylum officers;
• Reducing the use of detention and expanding alternatives to detention;
• Requiring more written and reasoned decisions from immigration judges and more written decisions from the BIA;
• Increasing training opportunities for immigration judges;
• Limiting the conduct of hearings by videoconference to procedural matters in which the non-citizen has given their consent;
• Increasing three-member panel review at the BIA;
• Permitting de novo review by the BIA of immigration judge factual findings and credibility determinations;
• Amending regulations to require BIA removal orders to contain notice of appeal rights; and
• Modifying and expanding the Legal Orientation Program to reach additional non-citizens needing legal assistance.

The executive summary's objectives are certainly honorable and commendable, but unfortunately not completely plausible given the current political climate in the U.S. The governmental bodies should, at the very least, work towards implementing the recommendations that do not require legislation. And, hopefully, they will continue to strive towards the larger reforms that are necessary to ensure independence, fairness, efficiency and professionalism in the adjudication of removal cases

A special election was held on January 19, 2009 to fill the Senate seat left vacant by the late Edward Kennedy. Although this was a Massachusetts special election, people from Columbus, Ohio to Troy, Michigan and all across the United States watched intently as Republican attorney Scott Brown defeated the democratic front-runner, Martha Coakley. Some have declared that his election did away with the filibuster-proof majority of Congressional Democrats and, with it, any chance of immigration reform. The election of Scott Brown may have been a surprise, but should by no means be considered the end of any possibility of immigration reform in the United States.

It is true that today's contentious political climate has fostered a system where a party change in one single Senate seat could potentially jeopardize the passage of much needed reforms, including immigration. While campaigning for Congress, Scott Brown's statements regarding immigration policy focused on stripping rights for illegal immigrants and combating illegal immigration through enhanced border security. His legacy as a Massachusetts State Senator includes the introduction of legislation that, if passed, would have required foreign nationals to provide proof of work authorization to pursue a wage enforcement action against a U.S. employer. Unfortunately, such laws are short-sighted and fail to recognize that preventing wage enforcement actions could serve to embolden U.S. employers that hire and take advantage of undocumented workers.

However, Scott Brown's record as a U.S. Senator is yet to be established and, regardless of whether he is ultimately a proponent or opponent of immigration reform, he is but one vote. Comprehensive immigration reform, before and after the election of Scott Brown, needs to be a bi-partisan effort -- with the support of Democrats, Republicans and Independents alike. The President did not dedicate much of his State of the Union Address to immigration reform, but he did urge Congress to "continue the work of fixing our broken immigration system - to secure our borders, enforce our laws so that everyone who plays by the rules can contribute to our economy and enrich our nation." Hopefully, the members of Congress will heed the President's words -- remembering that the United States is a "nation made up of immigrants from every corner of the globe" and "neither party should delay or obstruct every single bill just because they can" -- and work towards passing positive immigration reforms in the upcoming year.

We are starting to see the beginning of the immigration reform debate. Robert Menendez (D-NJ) introduced The Military Families ACT which if passed would allow USCIS to grant permanent residency to children and spouses of those honorably serving or have honorably served in the Military even if the spouse or child is undocumented alien. Several Democratic members of Congress already voiced their support to this legislation.

Traditionally, only US citizen applicants are permitted to immediately confer permanent residency status to spouses and children, but not if they are undocumented. This Act attempts to correct this situation and take care of family members of the military personnel.

According to the Immigration Policy Center, currently there is 114,601 foreign born persons in the armed forces. They represent 7.91% of active duty personnel. Most foreign born personnel in the military were able to acquire Citizenship pursuant to Sec. 1440 of the INA which conferred Naturalization through active-duty during periods of military hostilities. But this law ironically does not extend status to their family members.

The US has been at war for more than eight years. The continued need for foreign born military personnel with various language and other skills is clear. The passage of this legislation to protect the family of this important group is without a doubt is in our clear national interest.

Rest assured that this bill is far from being signed into law. Many believe that this legislation should be part of the overall immigration debate which will not be jumpstarted before the next year. Also, expect opposition form some lawmakers such as Representative Lamar Smith who simply does not think this is necessary.