The American Bar Association says US immigration courts are ‘on the brink of collapse’

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An attorney for an immigrant child appears before a judge in a Virginia immigration court in 2018.

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The American Bar Association is proposing a major overhaul of the US immigration system, calling the courts that decide whether to deport immigrants “irredeemably dysfunctional.”

“The immigration courts are facing an existential crisis,” the association says in a report released Wednesday. “The current system is irredeemably dysfunctional and on the brink of collapse.”

The only way to fix “serious systemic issues,” the report argues, is to create what’s known as an Article I court. Akin to tax or bankruptcy courts, this would be a court that’s independent from the Justice Department.

It’s an idea that’s been proposed before by advocates and immigration judges. And the American Bar Association listed a similar proposal as an option for reform in a 2010 report on the US immigration system.

Its report on Wednesday warns that recent policy changes have made a system that was already stretched at the seams even worse.

“The state of the U.S. immigration court system has worsened considerably since our 2010 report,” this report notes, specifically mentioning an unprecedented backlog of cases, increased wait times, policy changes that aim to accelerate cases without allocating enough funding, over-reliance on video teleconferencing during court proceedings and possible bias in the hiring of judges.

The Justice Department, which runs US immigration courts, did not immediately respond to a request for comment on the ABA report.

The report also alleges that judicial independence has been called into question “with a resurgence of alleged politicized hiring and the adoption of policies that arguably undermine immigration judges’ ability to perform their role as a neutral arbitrator of fact and law.”

The report lists more than 100 recommendations, including when video conferencing should be used in court and rescinding the recently imposed quotas and metrics used to evaluate immigration judges. Many of the recommendations were also made in 2010 but were not followed, the report acknowledges.

“There have been virtually no new immigration laws addressing issues covered by the 2010 Report, and few of the 2010 recommendations were adopted by either the Obama or the Trump administrations,” it says. “At the same time, certain policies that were in place at the time of the 2010 Report and that promoted the fairness, efficiency, and due process of the immigration system have been undermined.”

This time around, the association says it’s recommending “more drastic reforms.”

“Recent political and legal developments have exposed the fragility of our administrative systems,” the report says. “Today, our immigration courts and other adjudicative systems face untenable backlogs, yet efforts to reduce those backlogs have been largely ineffective, or, at worst, counterproductive to the goals of an independent judiciary.”

More than 800,000 cases are currently pending in US immigration courts, according to the Transactional Records Access Clearinghouse at Syracuse University. At the time of its 2010 report, the ABA says there were about 262,000 cases pending.

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