Bloggings on Deportation and Removal

by Matthew Kolken

Suggestions for what can be done to ensure Due Process in Immigration Court Proceedings

The true obstacle to due process and fundamental fairness in civil removal proceedings is the harsh consequences of mandatory detention, and the administration's overtly castigatory immigration hold and detention policy that removes aliens from their support network vitiating both their ability and will to fight removal.

Current detention policies are penal in nature, and erode an individual’s ability to obtain counsel where an individual may be detained for months if not years while challenging removal. The elimination of the mandatory detention provisions of INA § 236(c), especially as applied to lawful permanent residents, will immediately address this concern. This change should be coupled with the vesting of jurisdiction to immigration judges over custody review of aliens charged as arriving aliens. *In the spirit of fundamental fairness, an immigration judge, not the agency seeking removal, should be the final arbiter of whether an alien is a risk of flight or a threat to the United States precluding release from custody.

Administrative closure or conditional termination should be mandated in cases involving unaccompanied minors, or individuals that are legally incompetent to stand before the Court pro se. Closure or termination should be followed by an immediate sua sponte custody review performed by the immigration court. In these cases the burden should shift to the Department to establish that the alien is either a risk of flight or a threat to the United States.

In sum, if mandatory detention is removed, and detention policies softened detained aliens will have the ability to seek counsel in the approximately year and a half period between the scheduling of master calendar hearings, and due process will be served.

Our immigration courts must also be provided with the resources necessary to ensure hearings are being conducted fairly. This would require the allocation of sufficient funding to enable Courts to spend adequate time at each hearing to ensure cases are prosecuted fairly and that the rights of unrepresented individuals in detained settings are being protected. *To this end, the hiring freeze on immigration judges and support staff should be lifted to provide efficient and effective operation of the Court. As it currently stands removal proceedings take years to complete.

According to Syracuse University’s Transactional Records Access Clearinghouse (TRAC) the average time removal cases wait to be heard before the immigration court has increased to 553 days, compared with 489 days at the end of FY 2011. The number of cases awaiting resolution before the Immigration Courts has risen along with the average time these pending cases have been waiting. As of February 2013, the backlog has reached a new all-time high of 325,296. That total rose by 1,571 in February 2013 alone.

Office of Chief Counsel may also be utilized as an asset to assist pro se aliens by advising the Court of potential relief available after a review of the record. Office of Chief Counsel should be reminded that the trial attorney’s obligation is to see that justice is done, which does not mean winning the case at all costs.

IJs should be required to educate pro se aliens to ensure a knowing, intelligent, and voluntary waiver of rights. Include a mechanism for automatic reopening of proceedings should it be subsequently discovered that an alien was not properly advised by either counsel or the Court prior to a waiver of available defenses.

As for availability of legal counsel, Court Administrators should be required to properly monitor the Free Legal Service Provider list to ensure that those appearing on the list are fulfilling their pro bono obligations. Each individual lawyer appearing on the list should be mandated where practicable to take at least one case per month on a pro bono basis. The time provided could be coordinated with State and local bar associations to include satisfaction of continuing legal education reporting requirements.

IJs and the BIA should be required to correct counsel errors without the necessary filing of an attorney grievance with a disciplining tribunal, especially when the error is clear on its face.

These are just a few simple, commonsense solutions to the problems immigrants currently face, and that serve the interests of justice.

I can only hope that someone is listening.

About The Author

Matthew Kolken is a trial lawyer with experience in all aspects of United States Immigration Law including Immigration Courts throughout the United States, and appellate practice before the Board of Immigration Appeals, the U.S. District Courts, and U.S. Courts of Appeals. He is admitted to practice in the courts of the State of New York , the United States District Court for the Western District of New York, the United States Court of Appeals for the Second Circuit, and is a member of the American Immigration Lawyers Association (AILA).

The opinions expressed in this article are those of the author(s) alone and should not be imputed to ILW.COM.