As Virginia AG Targets Immigrants, What About Asylum Seekers?

by Jason Dzubow

Virginia’s Attorney General, Ken Cuccinelli, last week released an advisory opinion concluding that law enforcement officers in the Commonwealth “may… inquire into the immigration status of persons stopped or arrested.”  The AG had previously determined that “law enforcement officers in Virginia in fact have the authority to arrest persons for criminal violations of immigration laws.”  Last week’s opinion effectively expands law enforcement’s power to inquire about a person’s immigration status:

So long as the officers have the requisite level of suspicion to believe that a violation of the law has occurred, the officers may detain and briefly question a person they suspect has committed a federal crime.

It's not "American" Gothic unless you have the ID to prove it.

It’s a little unclear to me what this means.  The opinion recognizes a distinction between civil and criminal violations of the immigration law, but it is not always clear whether the opinion is referring to civil violations, criminal violations or both. 

It’s also unclear how this advisory opinion will impact asylum seekers.  Many people in Virginia–including many of my clients–have pending asylum cases.  Some of these cases take years to resolve, and oft times the asylum seekers do not have any solid evidence of lawful status in the U.S.  At most, such people have a work permit, which is not proof positive of lawful status (in some cases, an alien’s status is terminated, but he remains in possession of his work permit).  Other times, the alien will have only a printed paper from the Immigration Court or the asylum office.  Anyone with a printer could create such a document, so it is weak proof of status. 

How then will Virginia law enforcement officers deal with asylum seekers?  Will they detain them until their status can be determined?  Detaining people who have possibly suffered past persecution and who have come to our country for help seems a cruel joke.  Or will the police simply take an alien’s word for it when she claims to be an asylum seeker?  I doubt such an “honor system” would be acceptable to the AG’s supporters.  Or maybe the police will be trained in the various documents that accompany asylum cases.  But this would be a poor use of time for officers who are already overburdened.

One possible solution would be for the federal government to immediately issue an identity document to anyone who claims asylum.  At least this would help such people avoid running afoul of local law enforcement.  As a patchwork of anti-immigrant laws spreads across the country, perhaps this type of federal intervention is the only practical way to protect people who have come here seeking asylum.

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Congressional Hearing on EOIR

by Jason Dzubow
On June 17, the House Subcommittee on Immigration, Citizenship, Refugees, Border Security, and International Law held an oversight hearing on the Executive Office for Immigration Review (EOIR).  The hearing was called by Chairwoman Zoe Lofgren (D-CA) as part of a long-running effort to understand why the Immigration Courts and Board of Immigration Appeals (BIA) are as backlogged, inefficient, and overwhelmed as they are. 
 

Where the magic happens.

While ranking member Steve King (R-IA) continued his crusade to find out what “really happened” in the asylum case of President Obama’s aunt, the rest of the Subcommittee and witnesses got straight to the crux of EOIR’s problems:  lack of resources, insufficient staffing and training of immigration judges, and a complete disconnect between EOIR’s capacity to adjudicate cases and ICE’s skyrocketing enforcement efforts.   

First up was Juan Osuna, former Chairman of the BIA and current Associate Deputy Attorney General at the Department of Justice.  As the DOJ representative before the Subcommittee, he was obliged to highlight the positive changes made during the Obama Administration’s stewardship of EOIR.  These efforts include the proposed hiring of 47 new immigration judges by the end of 2010, making the complaint process against IJs more transparent, improving the training regime for IJs, and having “meetings” with ICE to express EOIR and DOJ’s discontent with the massive number of immigration court cases being initiated by ICE right now. 

Mr. Osuna is right to be concerned about the astonishing increase in cases before the immigration courts.  He testified that there are a record 275,000 pending matters before EOIR.  Coupled with the decline of IJs actually hearing cases, this has resulted in an average wait-time of 439 days for a case to go to trial.  That’s right—the average person who has a case in immigration court has to wait over a year for a hearing on the merits of his or her claim.  Meanwhile, armed with a gargantuan budget and an enforcement mandate, ICE keeps arresting, detaining, and issuing “notices to appear” to as many noncitizens as it possibly can.  EOIR has no control over this and clearly isn’t keeping up.   

As Representative Pedro Pierluisi (D-PR) pointed out, the overwhelming caseload and lack of support is creating a great deal of strain on immigration judges themselves.  Witness and Immigration Judge Dana Marks (also President of the National Association of Immigration Judges), noted that the average Federal district court judge handles 400 cases per year and has three law clerks to assist him.  The average immigration judge completes 1500 cases per year and gets ¼ of one law clerk.  Further, TRAC Immigration reports have indicated that an IJ gets an average of only 70 minutes to hear an immigration case.  Practically speaking, that means that in just over an hour, an IJ has to decide whether the law requires him to split up a family, keep someone detained, or send someone back to his home country to face persecution.  And the DOJ wonders why it has a hard time finding qualified, experienced immigration judges? 

The laundry list of problems raised at the hearing could go on for pages, so I’ll stop here.  I think it is clear enough that as a starting point, EOIR needs more resources if ICE is going to continue to funnel record numbers of people into deportation proceedings.  For other suggestions on how to reform the immigration court system, I recommend reading a recent ABA report called “Reforming the Immigration System: Proposals to Promote Independence, Fairness, Efficiency, and Professionalism in the Adjudication of Removal Cases.” You can read the full ABA report here.

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Non-Christians Need Not Apply

by Jason Dzubow

According to the Chicago Tribune, a prominent refugee resettlement agency, World Relief, has enacted a policy that requires new employees to be Christians.  World Relief is an arm of the National Association of Evangelicals, an organization that has represented a diverse array of Evangelical churches and parishioners since 1942.  The agency receives about 65% of its budget from the federal government and assists 40% of refugees resettling in the U.S.  According to its mission statement, World Relief empowers the local Church to serve the most vulnerable, and its “staff and volunteers help thousands of refugees – victims of war and persecution – replant their lives in the United States.”  The agency has 23 offices across the U.S., and is the biggest evangelical refugee resettlement agency in America.  From the World Relief website:

In[its United States] offices, World Relief offers legal support, job training and English classes to immigrants.  In Baltimore, a Legal Services clinic reaches out to thousands of clients each year—helping them fill out paperwork, joining them at hearings and ensuring they understand their rights and responsibilities.  World Relief is also engaged in advocacy for immigration and refugee policy. 

One “unfortunate part” of World Relief’s selective hiring policy is that it could conflict with professional guidelines for social workers and clinical psychologists.  As a result, the agency’s mental health unit was forced to close down and refer its clients elsewhere.  Though current employees don’t necessarily have to be Christian, they risk termination if they don’t affirm the organization’s Christian mission statement “to follow Jesus by living holy, humble and honest lives.”  Non-Christian employees in hard-to-replace roles can apply for an exemption, but they must sign the Christian statement of faith if they ever change positions.

Already some employees are searching for new employment and some funders have decided not to renew grants.  The World Relief  interim director, the Rev. Brad Morris, said the hiring policy has nothing to do with the services provided and that he doesn’t see a conflict.  “I don’t believe it’s discrimination. It’s an internal hiring policy,” he said.

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Northern Mariana Islands Court Ramps Up

by Jason Dzubow
Who wouldn't want asylum here?

The new Immigration Court in the Northern Mariana Islands is up and running.  An article in the Saipan Tribune reports that “The Department of Homeland Security’s Immigration and Customs Enforcement has filed 30 new removal cases, bringing to 51 the total number of cases that have been filed with the Saipan U.S. Immigration Court since the federalization law took effect on Nov. 28.”

From Tuesday until Thursday, Immigration Judge Philip L. DiMarzio heard the 51 cases, mostly Chinese nationals involved in human smuggling cases.  In what appears to be a blatant breach of confidentiality, the paper reported and named a Chinese asylum seeker who appeared before the court.  For more on confidentiality and Immigration Courts, click here.

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We Need More Judges

by Jason Dzubow

Syracuse University’s Transactional Records Access Clearinghouse (TRAC) has issued a new report confirming what immigration attorneys already know: the waiting time for cases in the Immigration Courts is longer than ever.  From my experience, a typical case in the over-burdened Arlington, Virginia court takes almost two years.  It turns out, Arlington isn’t the slowest court in the land:

From the TRAC website:

Cases awaiting a hearing in the nation’s Immigration Courts reached an all-time high of 228,421 in the first months of FY 2010, according to very timely government enforcement data obtained by the Transactional Records Access Clearinghouse (TRAC). The current number of pending cases is up 23 percent just since the end of FY 2008, and 82 percent higher than it was ten years ago.

Wait times also vary markedly from one court to the next. At one extreme there are the Los Angeles and Boston Immigration Courts where pending cases have now been waiting for an average of 713 days and 612 days, respectively. At the other extreme, there is the Florence, Arizona Immigration Court with an average wait time of 75 days and the Miami (Krome) Immigration Court with 82 days.

I imagine that the courts in Florence and Miami are faster because those locations deal primarily with detained immigrants.  The courts make detained cases a priority.  Not, as you might expect, because the alien is in detention, but rather because the alien is in detention at government expense. This is made clear when you view the courts’ files, which are prominently labeled, “Detained at Government Expense.”

The problem could be alleviated (or at least ameliorated) if the Department of Justice would begin filling some of the 48 immigration judge vacancies.  Indeed, according to TRAC, since 2007, the number of immigration judges has actually gone down (from 229 to 227) while the case load has increased dramatically.  The backlog has resulted in difficult waits for asylum seekers and others caught in the system.

In a strongly-worded response to TRAC, EOIR Acting Director Thomas Snow calls the report “unbalanced” and states that it fails to acknowledge EOIR’s efforts to fill the vacant positions.  Acting Director Snow points out that 15 judges are in the final stage of the selection process, and EOIR is interviewing hundreds of candidates to fill the remaining IJ openings.  For aliens in the system, the process cannot move fast enough.  To properly enforce the nation’s immigration laws, ensure due process, and fulfill our humanitarian obligations, we need more judges.

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ABA Recommends Creation of Independent Immigration Courts

by Jason Dzubow

From Human Rights First:

After conducting a comprehensive review of the U.S. immigration adjudication system, the American Bar Association (ABA) Commission on Immigration released is long-anticipated report, “Reforming the Immigration System: Proposals to Promote Independence, Fairness, Efficiency and Professionalism in the Adjudication of Removal Cases.” The study found that pressures on the adjudication system have grown exponentially in recent years, as the number of people in immigration proceedings has increased and immigration enforcement efforts have heightened. The study recommends the creation of an independent immigration court, either as an Article I court or as an independent agency. It also makes a series of recommendations related to funding and staffing and suggests legal changes necessary to improve the fairness and efficiencies of immigration processes.

The full report is available here.

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