Children and the Efficiency of the Immigration Court System

Children and the Efficiency of the Immigration Court System

Immigration is oftentimes a hot topic that people avoid bringing up around mixed company. However, with the political climate being what it is, and immigration is constantly talked about in Washington, it seems like many people are forgetting what happens after someone is confronted about being an illegal immigrant. That answer is immigration court.

Within the past few years, the backlog of cases that have found their way in to immigration court have reached record levels.

Nearly 550,000 cases are currently pending with only a limited amount of national immigration judges available to sit for them, leading those with a case being presented in front of immigration court to being delayed for years.

What is immigration court?

Immigration court is an administrative court branch run by the US Department of Justice. It specializes in handling only immigration cases.

In the United States, there are 50 courts available nationwide, and around 200 immigration court judges( Immigration court has a list of duties that include granting foreign nationals legal status in the United States, having foreign nationals who committed an immigration crime while in the U.S removed or deported, and hearing appeals from foreign nationals who are seeking asylum.

Immigration court judges are appointed by the United States Attorney General, and only sitting judges who are representatives of their union, the National Association of Immigration Judges, are allowed to routinely speak to the media about the events and updates that happen within the immigration court system.


Representation in Immigration Court

If you or someone you know must be presented in immigration court, it is important to seek counsel. Searching for “family attorneys near me“, “immigration court attorneys near me”, or even “attorneys near me” can be the first step in seeking representation in court.

Unlike other courts in the judicial system, such as criminal courts, immigration courts are not required to provide the defendant (in this case, anyone found to be a foreign national in the United States) with representation.

This oftentimes leads to a problem especially as it comes to unaccompanied minors. Children from the ages of 2 to 18 who do not have any representation must represent themselves. This is also true for adults who are unable to provide their own representation.

Another aspect of representation that is oftentimes forgotten about is the presence of a court interpreter.  A court interpreter serves as a bridge between judges, attorneys and individuals who cannot explain their case in English.

Unfortunately for many undocumented foreigners in the immigration court system, there are many well-qualified court interpreters who are leaving their jobs in the immigration court system due to disputes with salary and compensation.

Veteran court interpreter Carmelina Cadena, who has worked within the immigration court system for fourteen years, says that standards have deteriorated within the court system. She is no longer reimbursed for the many travel fees that are a result for traveling around the country to translate various court cases and her overall pay has decreased dramatically.

She is also quoted saying that she is worried for those being put on trial in immigration court, as  many veteran interpreters are leaving the positions and new interpreters with a lack of experience are taking their place.

In a recent interview on Huffpost former president of the American Immigration Lawyers Association Victor Nieblas has also expressed similar concerns, saying “the labor dispute is now spilling into the immigration courts, and it’s having an impact on the immigration judges, the attorneys, like myself and, more importantly…the individuals that are before the courts.”


Trump Administration and Immigration Court

Immigration has been a popular talking point among President Trump’s administration. According to a Fair US article, his plan to address illegal immigration has been based upon three core principles:

  1. The United States must build a wall across the southern border.
  2. Current immigration laws must be fully enforced.
  3. The interests of the American citizens must be put first.

Upon his election, President Trump has made tougher immigration enforcement a key policy goal of his administration. Especially focusing on trying to limit the number of juveniles who enter the country illegally.

In December 2017, the Executive Office for Immigration Reform sent out a memo that replaced guidelines put in place during May of 2007 that spelled out how judges and other court administration officials should treat children who were found to be illegally crossing the border.

An official from the Executive Office for Immigration Reform (EOIR) said that this new memo “contained clarifications and updates” to the guidance previously passed that was now “consistent with the laws as they’ve been passed by Congress.”

One aspect of the memo that specifically targets children is an update to how they are supposed to be made comfortable in the court. The previous guidelines stated that they were to be permitted to explore in the courtrooms, including the ability to sit in places such as the witness stand and the judge’s bench.

Updates to these guidelines now include time limits to these explorations, stating that they should occur only “to the extent that resources and time permit.”

Judges are also encouraged to be skeptical of the children and their cases, because of the perceived notion that “an unaccompanied minor generally receives more favorable treatment under the law than other categories of illegal aliens” and that therefore creates “an incentive to misrepresent accompaniment status or age in order to attempt to qualify for the benefits.

Another addition is the note to be on the lookout for the “fraud and abuse” that the unrepresented children in court may be attempting

Dana Marks, a sitting judge and spokeswoman for the National Association of Immigration Judges has found the memo to be extremely distressing, something that should concern the current immigration judges.

“There is a feeling that the immigration courts are just being demoted into immigration enforcement offices, rather than neutral arbiters,” Marks said. “There has been a relentless beating of the drum toward enforcement rather than due process.”

However, some judges see these memo updates to be beneficial to the court, such as former immigration judge Andrew Arthur, who now works for the Center for Immigration Studies.

Previously, he says, these former guidelines placed so much emphasis “on the potential inability of the alien to understand the proceedings…that it almost put the judge in the position of being an advocate”

During the initial phase of Trump’s administration, there was a decrease in the amount of illegal immigrants crossing the borders. However, since May 2017 the U.S Customs and Border Protection has seen an increase of children being apprehended alone or with family members.

The immigration courts have seen a massive increase in the amount of unaccompanied minors, most of them having fled Central America as increasing violence has forced many people to relocate further North.

In September, Attorney General Jeff Sessions stated that these recent updates were to address those unaccompanied minors who had affiliations with gang members or serving drug cartels. The new memo includes a notation for teenagers who are convicted as adults because of serious criminal activities.


Funding and Immigration Court

Funding for the immigration court system has often stagnated within the past ten years, with various previous presidential administrations failing to allocate funds to a system that was steadily growing with the number of cases presented. Now, this stagnation and lack of funding is being used by the Department of Homeland Security to justify denying immigrants access to court at all, and increase the amount of summary removal proceedings, or expedited removal.


According to Human Rights First, increasing the amount of expedited removal would be a violation of human rights, especially as those relate to foreigners seeking asylum.

Recent failures to implement safeguards in relation to the summary removal system have been documented by the U.S Commission on International Religious freedom and other organizations.

Expanding the amount of expedited removals could lead to more of these safeguards continuing to fail and forcing those under asylum to return to countries that they fled in the first place.

Heartland Alliance’s National Immigrant Justice Center released a paper titled “Order in the Court: Commonsense Solutions to Improve Efficiency and Fairness in the Immigration Court.”

This paper highlights 21 practical changes that the EOIR could implement without congressional action and at a low to no cost to taxpayers.  These changes are suggested after consulting professionals with up to thirty years of experience representing low-income immigrants and practicing law in the immigration court system.

Some suggestions for efficiency include creating alternative dispute resolution structures through inter-agency cooperation, such as forwarding cases of asylum to the office of asylum and cases involving domestic violence to other experts at the U.S Citizenship and Immigration Services Center.

The immigration court system is one that has been stagnating for almost a decade. With some changes and proper application of resources, hopefully it will stagnate no longer.

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