A New Type of Immigration Court is Needed
Guest blogger: Arvind Ravikumar, University of San Francisco law student:
Immigration courts are currently part of the Department of Justice and immigration judges currently do not have much autonomy and independence. For example, because immigration courts are part of the Department of Justice, they often have to implement the enforcement priorities of this Department even though it may conflict with protecting the procedural and substantive rights of the immigrants who are brought into these courts. Immigration judges are often overworked and they are bound by a strict statutory framework which does not give them much flexibility. For example, in Lopez-Telles v. INS, 564 F.2d 1302 (9th Cir. 1977), the Ninth Circuit noted that an immigration judge is an officer created by statute and not by the Constitution and that an immigration judge does not have inherent powers like a judge in the federal judiciary. For example, an immigration judge does not have the authority to terminate deportation proceedings once immigration officials have initiated these proceedings and prosecuted them to a conclusion, and they also cannot terminate proceedings based on equitable or humanitarian grounds alone. An immigrant judge can only determine whether the grounds for deportation charges have been sustained by the requisite evidence.
I agree with commentators such as Immigration Judge Dana Leigh Marks that immigration judges should be made Article I judges. I find it interesting although regulating immigration is one of Congress’ Article I powers just like taxing and regulating bankruptcy, immigration courts have not had the same degree of autonomy and independence like tax and bankruptcy courts. We need immigration judges to be more independent of the officials in the Department of Justice because the stakes for many immigrants are high while they do not have many of the safeguards that citizens may enjoy. For example, deportation is considered a civil proceeding and because of this, there is no right to appointed counsel. Indigent immigrants need access to appointed counsel just like many criminal defendants but they cannot have an attorney appointed for them free of charge. Even though deportation is considered a civil proceeding, the consequences of a deportation order can be just as harsh as a criminal conviction if not more so. Because of this, indigent immigrants often have to represent themselves but because they do not have legal training, they are often not able to adequately protect their rights. In addition, other factors in civil deportation proceedings are also more disadvantageous to immigrants such as the requirement that immigration officials have to prove deportability only based on “clear and convincing evidence” rather than the more stringent “beyond a reasonable doubt” standard. Also, evidence which is gained through Fourth Amendment violations is not excluded under the exclusionary rule in civil deportation proceedings. In this context, it is important that we have independent Article I immigration judges who can exercise more discretion, particularly in cases where the immigrant is quite disadvantaged. Immigration judges should be able to terminate deportation proceedings on equitable or humanitarian grounds.
bh