Imagine a legal proceeding where the judge is hired by the chief prosecutor, the defendant is charged with an unintelligible offense, he has no lawyer to defend him, the proceedings are conducted in a language he does not understand, and the punishment is banishment from his home, his livelihood, and his family for the rest of his life. This might be a scene in a courtroom operated by some totalitarian regime, or by a Taliban or Ayatollah fanatic. Actually, the above description represents "justice" in America's immigration courts. It's a bizarre world invisible to most Americans in which government power is used abusively and arbitrarily, constitutional rights are non-existent, lives are destroyed, and there is virtually no chance of correction.
Immigration courts determine whether a non-citizen may remain in the United States or be removed. Some 260 judges throughout the U.S. make that decision. These judges are lawyers in the Department of Justice assigned by the Attorney General for indefinite tenure, and can be terminated at will. The Bush Administration packed the immigration courts with "good Republicans" who were "completely on the team," and screened for their political and ideological affiliations. In contrast to all other judges in U.S. courts and agencies, immigration judges are neither independent nor impartial, and are not subject to codes of judicial ethics. They can interrogate immigrants and bully witnesses as if they were conducting an inquisition. These judges are partisans in the nation's "War on Immigrants."
Moreover, under rules of jurisdiction and appeal, their decisions are almost totally insulated form review by real federal judges. Indeed, in the handful of cases where federal review has occurred, appellate judges frequently condemned the conduct of immigration judges as "hostile," "intimidating," "insulting," "intemperate," "sarcastic," "mocking," and "contemptuous," and their decisions as "irrational," "arbitrary," "incomprehensible," "incoherent," and "indecipherable." One immigration judge for laughs referred to himself as "Me Tarzan" to a Ugandan defendant named Jane. Another immigration judge's contempt and disparagement of the defendant, according to the federal court of appeals, "seemed more appropriate to a court television show than a federal court proceeding." Richard Posner, one of the country's most respected federal circuit judges, observed that adjudication by immigration judges "has fallen below the minimum standards of legal justice."
To be sure, immigration judges operate under extraordinarily difficult conditions that most likely overwhelm, exhaust, and embitter them, and maybe provoke some of the excesses noted above. Their caseloads are enormous -- around 270,000 cases are being handled by the 260 immigration judges -- and they have virtually no staff or administrative support. Although law enforcement agencies continue to round up more and more immigrants to add to the courts' docket, a hiring freeze prevents hiring more immigration judges. To get a sense of the workload, consider that some immigration judges decide up to 2,400 removal cases a year. If the judge worked 5 days a week for 52 weeks, he or she would be responsible for adjudicating 10 cases a day. Assuming that most of these cases involve the fate of a person who seeks to remain in this country with his family and friends, and wants a judicial hearing to prove that he should not be deported, it's impossible for even the most well-meaning, professional, and conscientious immigration judge to dispense justice to all the defendants in his courtroom fairly and even-handedly. In such an environment -- described by one immigration judge as "like trying death-penalty cases in a traffic court setting," the outcomes are almost certain to be arbitrary, irrational, careless, and unfair.
But focusing on the judge is only a part of this mean-spirited and despairing picture. Immigrants about to be deported have no right to the assistance of counsel, and despite strenuous efforts by defender services, pro bono bar groups, and law school clinics, the vast majority of detained immigrants lack counsel to assist them. It's so ironic. A person charged with larceny for stealing a can of beans from a supermarket has a constitutional right to a lawyer, to a jury trial where guilt must be proved beyond a reasonable doubt, to call and cross-examine witnesses, to examine the prosecutor's files, and to appeal a guilty verdict. But in a proceeding to decide whether a person will be banished and exiled from his country and his family, he enjoys none of these rights.
But even in cases where a lawyer does appear for the immigrant, the lawyer's performance has been harshly criticized in numerous reports and studies as lazy, incompetent, and unprepared. Many of these lawyers have been expelled or suspended. Some of them pretend to be lawyers to defraud vulnerable immigrant families in desperate need of legal assistance. And even when competent lawyers are hired, their representation often is obstructed by the government's transferring the immigrant to a detention facility thousands of miles from his home. Indeed, two-thirds of all immigrants taken into custody in New York are sent to far away detention centers like Texas or Louisiana. And 80 percent of these immigrants do not have lawyers. And one should not ignore the practical reality that even the best lawyer to effectively defend his client may have to temper his zeal when dealing with a bullying and browbeating immigration judge.
Moreover, it's bad enough for an immigrant before a bad judge without the aid of a lawyer, or with a bad lawyer, to protect himself. It's even worse -- an almost impossible task -- for the immigrant to fully comprehend the legal rules of removal and asylum proceedings. Immigration law, according to judges, professional groups, and academics may be the most challenging of legal specialties, rivaled only by tax law. To be deported, a legal immigrant typically must have committed an "aggravated felony," or a "crime involving moral turpitude." But since there are dozens and dozens of potentially deportable crimes in federal and state criminal codes, deciding which ones qualify involves an interpretive process that Justice Alito in the landmark case of Padilla v. Kentucky characterized as "dizzying confusion." Indeed, his 14-page concurring opinion was devoted exclusively to demonstrating the complexity, ambiguity, and incoherent features of immigration law. Even determining what constitutes "persecution" is unclear, as Judge Posner recently noted when he eviscerated for its "warped logic" an opinion of an immigration judge. Immigration judges and immigration lawyers undoubtedly have difficulty trying to decipher the nuances of immigration law; it's an even greater perversion of justice to expect that a deportable and lawyerless immigrant facing a harsh and impatient judge would be able to comprehend and apply laws and rules that even Supreme Court Justices find confusing.
And, finally, adding to the grotesqueness of the process is the added burden for immigrants who do not understand English of trying to comprehend the court proceedings. Court translators often translate only selected portions of the proceedings. They typically translate when the judge speaks to the lawyers or the defendant himself, but too often do not translate the testimony of witnesses, which is crucial to making credibility and other factual determinations which will be the basis for the removal decision.
The picture is bleak and dire. Is there a path to reforming the immigration justice system to ensure fairness? A recent report by the American Bar Association makes several important recommendations. Separating the immigration judge from the Department of Justice and making the judge independent would be a good start. Improving the professionalism and training of judges is another. Obviously increasing the availability of qualified immigration lawyers and improving their training and performance are critical. Providing more resources to this resource-starved system also is critical. However, given the deportation crackdowns and implementation of the Obama administration's Secure Communities initiative, it's unclear whether additional resources will make any significant improvement. For now, continuing to expose this contamination in our justice system may be all that can be expected. As Justice Louis Brandeis once remarked, "Sunlight is the best disinfectant."
Fairness? Is it "fair" that people come to our country ILLEGALLY and take jobs from CITIZENS and LEGAL immigrants? Is it "fair" that ILLEGAL ALIENS cost us BILLIONS of tax dollars? Is it "fair" that ILLEGAL ALIENS suck our educational and health care systems dry?
To be "fair" these people should have come here LEGALLY or stayed LEGALLY in our country. THEY are the ones not being "fair"!
This mess came about because of massive violation of the law. Illegal Immigrants poured into the USA on the blind faith that our law would never be enforced. Now that they are caught up in the mess of their own creation, the complaints are flying left and right. When you sew the wind, you reap the whirlwind.
Looking at it from a different perspective. Not only did this person come here illegally they compound it by bringing along their family, thinking that breaking the law is and inalienable right? Then they purchase a home or rent a house that is often a flop house. What rights have they to own or illegally rent? or to break housing laws? Again breaking the laws by falsifying status to attain employment? While incapable of speaking the language? Is that so the defense could be ignorance that they didn't know they were breaking the law? Now look at the expenses involved not only in prosecution and providing a defense and interpreter, but all the support services associated. School districts and counties all over the country have to provide education, medical, and law enforcement. The lowering of quality of life as illegal immigrants take over areas of neighborhoods looking for work, harassing the local American woman. Many crusaders, say these things don't happen but they do, frequently all over the country. Their is escalating gang violence, which is all too real. Like a snowball rolling down the hill getting bigger and bigger and hurting Americans. The author in denial, would rather you just look at the original snowflake.
Many immigration cases involve people who do have a "green card" (i.e., status as a "lawful permanent resident") and thus are in the United States legally. However, because of having committed a crime that might be considered an "aggravated felony," which in some instances may actually be a misdemeanor, their LPR status can be revoked.
Another significant group of cases are those in which someone here without a valid visa claims asylum on the ground that he/she will be subject to "persecution" if deported. This raises lots of questions regarding the credibility of the person claiming asylum, as well as the definition of "persecution." For example, to appease the Christian right, for many years anyone who came to the US illegally from China could seek asylum based on a claim that he/she would be subject to punishment in China for having violated that country's "one child" limit. Similarly, to appease those on the left, women who came to the US illegally from many African countries could seek asylum based on a claim that they would be subject to persecution in the form of forced clitorectomy.
No thanks.. let them stay home, and they won't ever see the inside of an immigration court costing taxpayers thousands of dollars a miniute.
Instead Obama and his supporters are pushing an agenda designed to drive down wages and hurt US workers.
Illegal=Illegal=Illegal
Why does there even need to be a court? Go back to the country you came from until you follow the rules. Simple.
"A person charged with larceny ...has a constitutional right to a lawyer, to a jury trial where guilt must be proved beyond a reasonable doubt, to call and cross-examine witnesses, to examine the prosecutor's files, and to appeal a guilty verdict. But in a proceeding to decide whether a person will be banished and exiled from his country and his family, he enjoys none of these rights."
The judges in the courts we are most familiar with (Arlington and Baltimore), take great care to explain the due process protections and rights to those before the court (whether those rights get exercised w/o counsel is another matter).
Omitted in this article is the fact that although immigration law is complex, once in the system removal is inevitable unless a respondent enjoys a claim to lawful status or is able to regularize their status or can make an asylum claim. A final note, the current backlogs allow many respondents who contest their removability to stay in the U.S. for one to four years while their appeals are exhausted. That represents time that may be used to regularize their status.
Simply fixing the immigration courts will not necessarily do anything to prevent families from being broken up. Otherwise, much of the article is spot on (especially the need for independent judges and better access to counsel/legal advice for respondents).
Also let's be honest with ourselves - the vast vast majority here illegally should be kicked out from a purely objective standpoint. The only arguments brought against it are emotional (family, etc.). My emotion based response to that is that it's unfair to citizens, to legal immigrants and to aspiring legal immigrants to let illegals stay.
Moreover, when you go to a country and then stay there beyond your visa or just flat out sneak into a country, it is your responsibility to learn the language. So this "they don't understand" critique makes my eyes glaze over.
These people did not magically teleport into the middle of the US, they consciously broke multiple laws to get here and many more to stay and work. To claim they have done nothing wrong is laughable!
Also to try and sanitize the issue in the name of PC by reducing their actions to inconsequential misdemeanors by saying that being here illegally and without documents equates to simply not having papers on you at the time of being questioned is ludicrous.
Then trying to sell the line that they are law abiding "citizens" who are then being unfairly ejected for trivial things like jaywalking or speeding, is like saying that a murder is executed for eating their last meal - not the crime they committed.
Laws are there for a reason and punishments are not meant to be inconsequential.
Civility and humane treatment absolutely but we should not confuse basic "human rights" with privileges extended under out constitution to visitors. Deportation is not punishment merely restoring status quo since like Madoff's "wealth", you cannot take away rights and freedoms that were never theirs to start with.
If you can try to learn US immigration history; not all immigrants crossed the boarder illegally to become illegal. Most legal immigrants end up becoming illegal because of current system and the wait for decision. Like your ancestors, people migrant to the US for many reasons legally and become illegal because of the system.
Read/Google “Immigrant and Ethnic History in the United States” one of many recommendation is by Diane C. Vecchio Furman University: “During the colonial period, Benjamin Franklin cursed the great wave of German immigrants as "generally the most stupid of their own nation." The famine Irish were reviled in Massachusetts, where they were caricatured with ape-like features. As Eastern and Southern Europeans poured through Ellis Island at the turn of the 20th century, President Coolidge declared that "America must be kept American” . . . .
To enter the country on a non-resident visa with the intent to stay and work any way, as a good percentage of illegals do, is visa fraud - a deportable offense that could get you banned for up to 10 years.
Just because someone is given the right to come here to visit or study is a promising of nothing more than exactly that. That right expires with the visa and if they overstay for whatever reason - then they are in violation of immigration law. Worse yet - if they land and then file immediately for adjustment of status, that actually confirms their fraudulent intent!
The courts are clogged because of the sheer volume of people who somehow feel that if they are on US soil that it is then their right to stay indefinitely with full privileges - despite what our laws say. And worse yet when they cry foul and feel very aggrieved. I think not!