Reforming the Immigration System’s Adjudication of Removal Cases

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 described the current system as “in 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.

Overhaul of Removal System Recommended

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.

Three Options for Revamping the Removal Process

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 the executive summary do not endorse this method “since it is too complex and too costly relative to the other two options.”

Smaller Scale Legislative Changes

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.

Non-legislative Reforms to Removal Proceedings

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.

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