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
And Due Process In
national security with the interests of protecting civil
liberties and ensuring due process for immigrants.
ENSURING FAIRNESS AND DUE PROCESS IN
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
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
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.”
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
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 email@example.com 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