Ensuring Fairness and Due Process in Immigration Proceedings

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					 As a nation founded by immigrants and built
on the rule of law, the United States must balance
the challenges of controlling borders and protecting

           American Bar Association
      Ensuring Fairness
     And Due Process In
 IMMIGRATION
 PROCEEDINGS
national security with the interests of protecting civil
liberties and ensuring due process for immigrants.
           DRAFT



ENSURING FAIRNESS AND DUE PROCESS IN
     IMMIGRATION PROCEEDINGS

    As a nation founded by immigrants and built on the rule
    of law, the United States must balance the challenges of
    controlling borders and protecting national security with
    the interests of protecting civil liberties and ensuring
    due process for immigrants.
As a nation founded by immigrants and built on              recommendations to strengthen fairness and due
the rule of law, the United States must balance             process for those persons caught up in the
the challenges of controlling borders and                   immigration enforcement and adjudication
protecting national security with the interests of          system.
protecting civil liberties and ensuring due
process for immigrants.                                     Several of the ABA’s recommendations for
                                                            improving the nation’s immigration system call
Immigration continues to shape and strengthen               for increasing federal funding of certain
our country. Today, more than one in every five             programs and activities. We recognize that our
U.S. residents is either foreign-born or born to            nation is experiencing a fiscal crisis and
immigrant parents. Every day more immigrants                understand that difficult decisions will have to be
seek to come to our country to reunite with close           made regarding the allocation of scarce
family members, fill jobs and find protection               resources. However, while some of the
from persecution in their homelands. The                    recommendations may result in initial additional
development, implementation and enforcement                 outlays, part or all of that investment may
of our immigration laws should seek to balance              ultimately be recouped as a result of the cost-
this influx with the necessity of controlling our           savings provided through implementation of the
borders through a fair and effective system of              recommended programs.
immigration. However, our immigration laws
today are extremely complex, disjointed and                 With this in mind, the ABA has proposed
often counterintuitive, particularly for people             legislative and executive branch actions to
who often are just becoming familiar with our               improve our immigration system.
language, culture and legal system.

Moreover, despite that immigration matters                        ACCESS TO LEGAL
routinely involve issues of life and liberty, the             REPRESENTATION AND LEGAL
administrative system of justice that exists for
                                                                    INFORMATION
immigration matters lacks some of the most
basic due process protections and checks and
                                                            A hallmark of the U.S. legal system is the right
balances that we take for granted in our
                                                            to counsel, particularly in complex proceedings
American system of justice. As the national
                                                            that have significant consequences. Meaningful
voice of the legal profession, the ABA has a
                                                            access to legal representation for persons in
unique interest in ensuring fairness and due
                                                            immigration proceedings is particularly
process in the immigration enforcement and
                                                            important. The consequences of removal can be
adjudication systems, and those topics comprise
                                                            severe, resulting in separation from family
the primary focus of our recommendations here.
                                                            members and communities, or violence and even
                                                            death for those fleeing persecution. Yet,
Even a cursory review of the immigration system
                                                            immigrants have no right to appointed counsel
today shows that it is plagued with problems at
                                                            and must either try to find lawyers or represent
every level. Ultimately what is needed, and what
                                                            themselves. Legal assistance is critical for a
the ABA supports, is comprehensive reform that
                                                            variety of reasons, including a lack of
fairly and realistically addresses the U.S.
                                                            understanding of our laws and procedures due to
undocumented population, the need for
                                                            cultural, linguistic or educational barriers.
immigrant labor, the value of family
                                                            Statistics show that asylum seekers and others
reunification and the importance of an effective
                                                            who have legal representation are significantly
and humane immigration enforcement strategy.
                                                            more likely to succeed in their immigration
However, political realities dictate that reform
                                                            cases. Representation is therefore crucial – the
may be difficult to achieve in the immediate
                                                            outcome of an immigration case should not be
future. In the meantime, Congress and the
                                                            determined by a persons’ income, but on the
Administration should implement these
                                                            merits of his or her claim.
                               American Bar Association ● Ensuring Fairness and Due Process in Immigration Proceedings ● 1
1. The ABA supports the due process right to                orientation”) presentations have viable claims for
counsel for all persons in removal                          relief. Of this figure, many secure pro bono
proceedings. For indigent noncitizens who                   counsel and others can afford to retain counsel.
are not able to secure pro bono counsel,                    A very small percentage – those eligible for
government-appointed counsel should be                      relief from removal who cannot otherwise obtain
provided.                                                   legal counsel – should be eligible for appointed
                                                            counsel.
More than half of noncitizens in immigration
proceedings lack legal counsel. The reasons                 Beyond the obvious interest of affected
vary, but for many the cost of retaining counsel            noncitizens, legal representation also benefits the
presents an insurmountable obstacle, and free or            government and the administration of justice
low-cost legal services simply may not be                   through improved appearance rates in court,
available to them. Under U.S. law, noncitizens              fewer requests for continuances and shorter
have a right to counsel in removal proceedings,             periods in detention at significant financial
but at “no expense to the government.” This                 savings. It also deters frivolous claims. Above
provision does not necessarily preclude                     all, increased representation serves the
government-funded counsel; it merely provides               government’s interest in seeing that its decisions
that counsel need not be provided as a matter of            in these consequential cases turn on U.S. legal
right. In fact, some courts have recognized in              standards and merit and not on a litigant’s
theory that due process might necessitate the               income.
appointment of counsel in particular cases.
                                                            To facilitate the appointment of counsel in
The ABA supports establishing a system to                   appropriate cases, Congress should repeal the “at
identify indigent persons with potential relief             no expense to the government” restriction in INA
from removal and refer them to legal counsel.               Section 292.
To ensure due process and the effective
administration of justice, all indigent noncitizens         2. A system should be established to provide
in removal proceedings should be screened by                legal representation, including appointed
lawyers or other highly trained experts                     counsel where necessary, for unaccompanied
supervised by lawyers. While such a system is               children and mentally ill and disabled persons
being developed, legal rights presentations (see            in all immigration processes and procedures.
4. below) should be made available, including
for those indigent noncitizens who are not                  There are classes of vulnerable persons for
detained. A legal rights presentation helps an              whom it is particularly important to ensure
immigrant make an educated judgment on the                  appropriate legal representation for the duration
availability of relief from removal in his or her           of their cases: unaccompanied alien children and
case. Once such a determination has been made               mentally ill and disabled persons. These persons
in the affirmative, the person should be referred           may lack the capacity to make informed
to legal counsel. While qualifying cases could              decisions on even the most basic matters
be referred to charitable legal programs or pro             impacting their cases and are not in a position to
bono attorneys where available, where these                 determine on their own whether they might
services are not, then government-paid counsel              qualify for relief. In fact, they may not be able
should be provided.                                         even to understand the nature of, much less be
                                                            able to meaningfully participate in, their
While establishing such a system would entail               immigration proceedings. However, the
some additional cost to the government, the                 particular vulnerabilities of these persons also
number of persons who are potentially eligible              make it difficult to impossible for them to obtain
for relief from removal is limited. Department of           counsel on their own.
Justice statistics show that roughly 10 percent of
those who receive legal rights (“legal
                               American Bar Association ● Ensuring Fairness and Due Process in Immigration Proceedings ● 2
Current law calls for the government to ensure             represent clients in need without regard to their
that unaccompanied children have legal                     citizenship or immigration status. Under the
representation in immigration proceedings and              current law, this option is no longer available.
other matters, but only “to the extent                     Pro bono lawyers, along with religious-based
practicable.” Similarly, the law allows, but does          and other nonprofit organizations, have worked
not require, the appointment of a guardian or              hard to fill the void but simply do not have
advocate for vulnerable unaccompanied children.            sufficient resources to meet the needs created by
For those who are mentally ill or disabled, the            continued increases in funding for enforcement,
law allows an attorney or other representative to          detention, and deportation.
appear on behalf of the respondent, but does not
require that legal representation be provided.             Congress should repeal the restrictions on LSC-
Fundamental principles of fairness and due                 funded grantees so that, at a minimum, legal
process demand that these vulnerable persons               services organizations are not restricted from
receive legal representation and guardians to              using nongovernment funds to represent
represent their interests throughout the                   immigrants regardless of their status.
immigration process. While pro bono
representation should be encouraged and utilized           4. The federal Legal Orientation Program
to the maximum extent possible, it cannot meet             should be expanded nationwide and be
the need in all cases, particularly for those who          provided to all detained and nondetained
are detained in remote border areas.                       persons in removal proceedings.

Congress and the Administration should act to              One of the ways that detained immigrants can be
ensure that legal representation is provided for           provided with appropriate legal information is
unaccompanied children and the mentally ill and            through Legal Orientation Programs (LOP). The
disabled in immigration proceedings, including             LOP program is administered by the Executive
by requiring government-appointed counsel                  Office for Immigration Review, which contracts
where necessary.                                           with nonprofit organizations to provide LOP
                                                           services at 25 detention facilities around the
3. Organizations that receive funding from                 country. Under this program, an attorney or
the Legal Services Corporation should be                   paralegal meets with the detainees who are
allowed to provide legal representation to all             scheduled for immigration court hearings to
persons who otherwise qualify for their                    educate them on the law and to explain the
services, regardless of immigration status.                removal process. Based on the orientation, the
                                                           detainee can decide whether he or she potentially
Programs funded by the Legal Services                      qualifies for relief from removal. Persons with
Corporation (LSC) are the primary source of                no hope of obtaining relief – the overwhelming
legal assistance for indigent and low-income               majority – typically submit to removal.
persons across the nation, but this critical               Currently only detained persons are eligible for
resource is not available to many people with              LOP services.
potential immigration relief, including asylum
seekers and unaccompanied children. The reason             According to the Department of Justice, LOPs
is that LSC funds only may be used to represent            improve the administration of justice and save
citizens, lawful permanent residents, refugees,            the government money by expediting case
and a few other specified groups of noncitizens.           completions and leading detainees to spend less
In 1996, Congress went one step further and                time in detention. Since the inception of the
extended the “alien restrictions” to all funds             program, the ABA has provided LOPs at the Port
received by an LSC grantee, including those                Isabel Detention Center in South Texas and can
from nongovernmental sources. Prior to that                unequivocally attest to the benefits that these
change, many legal services programs had used              presentations bring to detainees, the facility, and
foundation grants and other non-LSC money to               the immigration court system. Legal orientation
                              American Bar Association ● Ensuring Fairness and Due Process in Immigration Proceedings ● 3
presentations facilitate noncitizens’ access to            The loss of liberty has punitive effects and works
justice, improve immigration court efficiency,             to undercut rights on many levels, including the
and save government resources. Recognizing the             right to counsel. Furthermore, the impact of
value of LOPs, Congress in FY 2002 provided                detention is particularly negative for certain
$1 million in funding for the program and                  vulnerable groups, such as families enduring
increased that amount to $3.7 million for FY               indefinite separation, asylum-seekers and victims
2008.                                                      of crime suffering from trauma and fearful of
                                                           government authority, and those with physical or
Congress should provide increased funding to               mental conditions that may be exacerbated by the
expand the Legal Orientation Program                       lack of adequate medical care.
nationwide to all detained and nondetained
persons in removal proceedings.                            Detention also imposes a significant financial
                                                           burden on the public; the federal government
                                                           spent $1.7 billion on immigration detention in
    IMMIGRATION DETENTION                                  2007. Efficient and effective use of scarce
                                                           public resources should be directed toward
The Department of Homeland Security’s                      detaining only those who pose a threat to public
Immigration and Customs Enforcement (ICE) is               safety, national security, or present a substantial
one of the nation’s largest law enforcement                flight risk. Persons who do not meet those
agencies. ICE annually detains over 300,000                criteria should be released under appropriate
foreign nationals in facilities throughout the             conditions to ensure compliance with their
United States. Of the more than 30,000 daily               immigration proceedings.
detention beds available to ICE, over half are
rented from private prisons and state and local            Where ICE has discretion to consider release of
jails. In recent years, immigration detainees              eligible noncitizens in immigration proceedings,
have represented the fastest growing segment of            it should adopt and consistently enforce a policy
the U.S. incarcerated population.                          favoring release under appropriate conditions. In
                                                           addition, Congress should enact legislation to
1. Noncitizens in removal proceedings should               revise current laws that require mandatory
not be detained, except in extraordinary                   detention or set such strict requirements as to
circumstances, such as when national security              practically remove discretion to release on the
or public safety is threatened or when a                   part of ICE.
noncitizen presents a substantial flight risk.
                                                           2. The use of alternatives to detention should
Although immigration is a civil, not a criminal,           be enhanced and implemented appropriately.
matter, various provisions of the Immigration
and Nationality Act provide for detention of               ICE detains over 300,000 persons annually,
foreign nationals. The primary reasons for                 including long-time permanent residents, sole
permitting detention in the immigration context            care providers, survivors of torture and abuse,
are to ensure that people appear for all scheduled         and people with serious medical conditions who
immigration hearings and comply with the final             need specialized care. Humanitarian concerns
order of the immigration judge. Unfortunately,             and limited detention capacity have sparked
even immigrants who may be eligible for release            national efforts over the past several years to
often remain detained because they cannot afford           integrate into ICE’s general practices the use of
to post the high bonds. These persons often are            various alternatives to detention. Detention
detained for months or even years while their              alternatives used by ICE include release on
immigration cases work their way through the               orders of recognizance, release on bond,
courts.                                                    supervised release, and electronic monitoring.


                              American Bar Association ● Ensuring Fairness and Due Process in Immigration Proceedings ● 4
Alternatives to detention offer the prospect of a            The ABA regularly receives reports from
considerable cost savings. The cost of detention             attorneys representing detained immigrants,
is approximately $95 per day per person, while               national and local immigrant advocacy groups,
alternative programs can cost as little as $12 per           and direct letters and phone calls from detained
day. Experience has shown that alternatives                  immigrants around the country that indicate
programs, designed and implemented                           serious, continuing problems with detention
appropriately, can be extremely effective. A                 facility conditions including: inadequate or
pilot alternatives program coordinated by the                prohibitively expensive access to telephones,
Vera Institute of Justice between 1997 and 2000              including for calls to pro bono or retained
resulted in a 93% appearance rate for asylum                 counsel; inadequate access to legal materials;
seekers in the program, at about half the cost of            delayed or denied medical treatment; and
detention. Aside from the issue of the cost-                 unsanitary conditions. The concerns identified
effectiveness, utilizing alternatives in appropriate         by the ABA are consistent with issues raised in
cases also serves to increase access to legal                the 2006 report of the DHS Office of the
representation and may allow noncitizens to                  Inspector General: “Treatment of Immigration
fulfill their family, work, or community                     Detainees Housed at Immigration and Customs
responsibilities while awaiting determination of             Enforcement Facilities.”
their case.
                                                             In addition, there are many noncitizens held for
Congress should continue to provide increased                long periods in immigration detention to whom
funding for alternatives to detention and direct             the Standards do not apply at all. ICE does not
ICE to implement true alternatives to detention              apply or enforce the Detention Standards at
that apply to only those who would otherwise be              Bureau of Prisons facilities or facilities designed
detained and that use the least restrictive options          to hold people on a short-term basis, though
necessary to ensure that an immigrant appears in             hundreds of immigration detainees are held in
court.                                                       these facilities every day. While some of these
                                                             facilities may be accredited by the American
3. The ICE National Detention Standards                      Correctional Association (ACA), the ACA
should be strengthened and adopted as a                      standards were not designed for immigration
regulation; the Standards should be                          detention and do not include the detailed
implemented and enforced at all facilities                   provisions for access to legal counsel and legal
where noncitizens are detained for                           materials that are essential for noncitizens in
immigration purposes.                                        detention.

For those persons who are detained, it is                    DHS should revise and strengthen the detention
essential to provide uniform and consistent                  standards to ensure appropriate oversight and
standards to ensure that facilities housing federal          include additional protections related to access to
detainees are safe and humane. During the late               counsel and legal materials, and prompt and
1990s, the ABA and several other organizations               effective medical care. DHS should adopt the
worked with the government to develop                        Standards as regulations that apply to all
standards to govern the conditions for those in              facilities that hold immigration detainees.
immigration detention. The ICE National
Detention Standards encompass a diverse range                4. Detention space should not be contracted
of issues, including access to legal services.               for or constructed in, and detainees should
While the development of the Detention                       not be transferred to, remote locations where
Standards was a positive step, it has become                 legal assistance is generally not accessible; the
apparent that ICE’s inspection process alone is              Detainee Transfer Standard should be revised
not adequate to ensure facilities’ full compliance.          to expressly prohibit the transfer of a detainee
                                                             if it will impede an existing attorney-client
                                                             relationship.
                                American Bar Association ● Ensuring Fairness and Due Process in Immigration Proceedings ● 5
Meaningful access to legal representation must
be a primary consideration in determining the                  IMMIGRATION ADJUDICATION
location of immigration detention facilities.
Currently, many immigration detention facilities             The Executive Office for Immigration Review,
are located in remote areas of the country. While            an office within the Department of Justice, is
this creates serious barriers to detainees who               responsible for administrative adjudication
have retained counsel because of travel costs and            functions within the United States and oversees
other logistical difficulties, it is an even more            more than 200 immigration judges in over 50
serious problem for detainees who are                        immigration courts around the country.
unrepresented and need access to pro bono                    Immigration judge decisions are administratively
immigration services, which often are not                    final unless the case is appealed to the Board of
available in these remote locations. While the               Immigration Appeals (BIA). BIA decisions are
government must understandably give                          binding unless modified or overruled by the
consideration to the cost of detention bed-space,            Attorney General or a federal court.
this interest should not trump the detainees’ due
process right to counsel.                                    Several changes in recent years have undermined
                                                             the quality of due process received by
In many cases, persons are initially detained in             noncitizens in the immigration adjudication
one area, but then transferred to another facility.          system. First, there have been vast increases in
The current Detainee Transfer Standard requires              the resources devoted to immigration
ICE to take into account whether a detainee is               enforcement efforts that have resulted in an ever-
represented when deciding whether to transfer                burgeoning caseload in the immigration courts --
him or her. However, the ABA has observed                    in 2007, immigration judges handled
that this has not prevented transfers of                     approximately 350,000 cases. Yet there has not
represented detainees or those with imminent                 been a commensurate increase in resources
hearing dates, such that access to counsel is                available to the courts. Second, a series of
severely impaired, court dates are missed, cases             procedural reforms has been adopted that
are delayed, and detention is prolonged. When                significantly revised the manner in which
cases are prolonged, cost savings from housing               appeals from the immigration courts were
detainees in remote areas is consumed by the                 considered by the BIA. These procedural
increased length of the stay. It is clear that               reforms resulted in a loss of confidence in the
stronger provisions and regulations are required             fairness of review at the BIA and generated a
to ensure that detainees are not transferred to the          massive number of appeals to the federal courts.
detriment of their legal rights, depriving them of
ready access to counsel or access to family                  The American Bar Association believes that
members, material witnesses, or evidence that                these problems can best be addressed by moving
would assist with case preparation or defense.               toward a system in which immigration judges are
                                                             independent of any executive branch cabinet
DHS should adopt a policy or Congress should                 officer. Indeed, we are currently considering
enact legislation to require that detention                  how such a system might best be implemented.
facilities, to the extent practicable, are located           In the meantime, the Administration and
near areas where free or low-cost legal                      Congress should immediately take the following
representation with expertise in asylum and                  steps to restore confidence in the immigration
immigration law is available. DHS/ICE should                 adjudication system and ensure that noncitizens
revise the Detainee Transfer standard explicitly             are afforded appropriate due process in all
to prohibit transfer when it would impede an                 proceedings.
existing attorney-client relationship.




                                American Bar Association ● Ensuring Fairness and Due Process in Immigration Proceedings ● 6
1. Removal decisions should be made only by                2. Discretion to grant certain forms of relief
impartial adjudicators, preferably                         should be restored to immigration judges.
immigration judges, following a formal
hearing that conforms to accepted norms of                 Several laws enacted in 1996 removed certain
due process, and should be subject to                      long-standing discretionary waivers of removal
administrative and judicial review.                        and substantially limited the discretion of
                                                           immigration judges to recognize compelling
Low-level immigration officers have been                   circumstances in particular cases. As a result, a
granted unprecedented authority to determine               person who has lived in the United States since
admission and removal cases. This occurs in the            early childhood as a lawful permanent resident,
context of “expedited removal” applying to                 whose entire family is here, whose spouse and
noncitizens who arrive at a port of entry or who           children are U.S. citizens, who speaks only
have been unlawfully present in the United                 English and knows no other culture but ours may
States for up to two years. During expedited               be deported and permanently barred from re-
removal a person does not have the right to legal          entering the United States. All this may be due
counsel, an interpreter, or review by an                   to a minor criminal offense committed years ago,
immigration judge. It may also apply in cases of           which may not even have been a ground for
“expedited administrative removal,” a system               deportation when it was committed and may not
used for certain persons with criminal                     have been considered a conviction under the law
convictions, and “reinstatement of removal,”               of the state where it occurred.
which is the application of previous removal
orders to those who return to the United States            Current laws severely limit discretion by an
without permission.                                        immigration judge to provide humanitarian relief
                                                           in such a situation. Additionally, the deportee
All of these systems, although they address                may have no right to have an independent federal
serious problems in the immigration enforcement            judge review the case. Restoration of discretion
system, implicate due process concerns. They               to immigration judges is necessary in the interest
expressly exclude the oversight of an impartial            of fairness, proportionality, and justice.
adjudicator; they are radically accelerated; they
are largely insulated from public scrutiny and             Congress should enact legislation to restore the
judicial review. The continuation and expansion            authority of immigration judges to grant
of such hidden systems of administrative                   discretionary relief on a case by case basis.
procedure violate many of the most fundamental
norms of due process.                                      3. The Board of Immigration Appeals
                                                           “Streamlining Procedures” adopted in 2002
Congress should enact legislation to restore the           should be repealed.
authority to conduct removal proceedings solely
to immigration judges. All removal hearings,               The Board of Immigration Appeals (BIA) has a
however named, should conform to accepted                  unique role and mission. The purposes of the
norms of due process, including the right to be            Board’s administrative review are to provide
notified of charges, to examine and rebut                  guidance to immigration judges below through
evidence, to be present, to defend oneself with            the interpretation of the law, to achieve
legal assistance, and to have a decision that is           uniformity and consistency of decisions rendered
based on a record and subject to meaningful                by the 200- plus immigration judge corps, and to
administrative and judicial review.                        ensure fair and correct results in individual cases.
                                                           In an overwhelming majority of appeals, the
                                                           Board is the court of last resort. In this context,
                                                           the quality of the administrative appeal is crucial.


                              American Bar Association ● Ensuring Fairness and Due Process in Immigration Proceedings ● 7
With the expressed intent to eliminate a backlog            federal courts to review implementation of the
of cases at the BIA, the Department of Justice              laws and issue injunctions. The Supreme Court
implemented a series of procedural reforms in               limited the reach of some of these jurisdictional
2002. These procedural reforms limit the use of             preclusions and confirmed that the writ of habeas
the Board’s traditional three-member panel                  corpus remained available to challenge a range
review and allow in most cases a single Board               of immigration law questions. However, in 2005
member to decide the merits of an appeal with               the Real ID Act incorporated aspects of these
only a brief order and no written opinion. These            rulings and established a system of judicial
changes not only resulted in a significantly lower          review that seeks to insulate discretionary
number of appeals being granted by the BIA, but             determinations from all judicial oversight.
also greatly increased the number of BIA
decisions being appealed to the federal courts --           These restrictions on federal judicial review are
from 5 percent (about 125 cases per month) to 25            exceptional in scope and establish a dangerous
percent (1000 to 1200 cases per month). Rather              precedent for unreviewable government actions.
than eliminating the backlog of cases, the                  As such, they are incompatible with the basic
reforms appear to have instead shifted the burden           principles on which this nation’s legal system
to the federal courts. Having an efficient system           was founded. The ABA is cognizant of the
is important, but simply shifting the burden is             impact that the increased number of immigration
not efficient. In addition, efficiency must not be          appeals has had on our federal courts in recent
at the cost of transparent, meaningful review.              years and the concerns of some that restoring
                                                            federal review in a number of areas would
The Department of Justice should repeal the                 further exacerbate this problem. However, we
“Streamlining Procedures,” or at a minimum,                 believe that incorporating the changes outlined
revise them to revert to the Board’s historic               above to improve the administrative system of
practice of adjudicating its cases, with very               adjudication and review will ensure that only
limited exceptions, in three-member panels that             those cases that necessitate further review will
issue full written decisions in each case.                  reach the federal courts.

4. Federal judicial review of immigration                   Congress should enact legislation to restore
decisions should be restored and made                       federal judicial review of immigration agencies’
meaningful.                                                 decisions, including deportation orders,
                                                            discretionary decisions, detention, and expedited
Access to the courts is an essential feature of our         removal.
system of government, and the implementation                                 ______________
and execution of the immigration laws have
often been corrected by such judicial oversight.            The recommendations discussed above are
Judicial review also has been important                     among a wide range of issues endorsed by the
historically in protecting immigrants’ rights and           ABA and are by no means exhaustive. We
civil liberties.                                            emphasize these issues because of their
                                                            timeliness and importance to our nation.
In 1996, Congress sought to tighten the access of
immigrants to the federal courts while at the               For more information, please contact Thomas M.
same time narrowing the ability of the courts to            Susman, Director of the ABA’s Governmental
protect immigrant rights. The 1996 laws                     Affairs Office, at susmant@staff.abanet.org or
contained provisions to restrict the review of              (202) 662-1765.
deportation orders by federal courts; eliminate
the review of discretionary denials of relief;              For more information on ABA Legislative
eliminate the review of custody decisions; bar              Priorities, visit www.abanet.org/poladv.
habeas review of orders denying admission,
except in rare cases; and limit the power of
                               American Bar Association ● Ensuring Fairness and Due Process in Immigration Proceedings ● 8