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Neither the Department of Homeland Security nor the nation’s immigration courts — both overwhelmed by exploding caseloads and inadequate resources — are ensuring fair decisions and due process for noncitizens, according to a top-to-bottom investigation of the system for removing aliens from the United States. A pro bono team of 50 lawyers and legal assistants at Washington, D.C.’s Arnold & Porter spent more than a year examining the removal adjudication system at the request of the American Bar Association’s Commission on Immigration. In a 500-plus-page report to be released today, the law firm details its findings, including inconsistent positions taken by DHS on asylum and other issues, high levels of stress and burnout among immigration judges, inefficient circuit court review of removal orders, unsupportable disparities in decisions by immigration judges, a dramatic expansion of the grounds for removing noncitizens based on “aggravated felony” convictions, and too many judges who display bias or intemperate behavior on the bench. An example of one judge’s behavior and the consequences it had for an immigrant family were chronicled by The National Law Journal last month. The report also urges a major restructuring of the adjudication system by elevating immigration courts to Article I status and makes roughly 60 other recommendations, about half requiring action by Congress and other non-legislative steps, to address the myriad problems with the system. “The last round of comprehensive immigration reform failed,” said Karen Grisez, chair of the ABA commission and a partner in Fried, Frank, Harris, Shriver & Jacobson. “We thought if it does come back in Congress, it would be great if we had a marker out there that had credibility and offered really in-depth, thorough recommendations for improving the system.” Although there have been other studies of the system, “This one is comprehensive in covering the full process — from the issuance of notices to appear by DHS, which starts the process, to the end of adjudication,” said Lawrence Schneider, head of Arnold & Porter’s international trade practice and a leader of the study. “We began by looking at all of the literature out there — a massive search as a beginning point. Then we interviewed scores of people about their experiences, ideas and reactions with respect to the current system. So with that combination, we’ve created what hopefully will be a great guidebook for policymakers as they consider changes.” Schneider said Arnold & Porter logged 13,000 hours on the study. The report’s recommendations that would require legislation include: • Hire 100 additional immigration judges as soon as possible, but at least within the next three to four years, and increasing the number of law clerks from the current one per four judges to one per judge; • Establish a right to representation in adversarial removal proceedings and for individuals in groups with special needs, such as children and the mentally ill; • Amend the definition of “aggravated felony” which is now so broad that DHS has initiated removal proceedings against persons convicted of misdemeanors and other minor crimes and that has contributed to the overwhelming immigration caseload; • Eliminate or narrow the law’s mandatory detention provisions to target persons who are clearly flight risks or pose a threat to national security, public safety, or other persons; • Amend the law to permit courts of appeal to remand cases to the Board of Immigration Appeals for additional fact finding. • Non-legislation recommendations include: • Increase the use of prosecutorial discretion by DHS officers and attorneys, for example, to stop litigating a case after key facts develop to make removal unlikely; • Increase training opportunities for immigration judges and require more written, reasoned decisions by the judges; • Reduce the use of detention, expand alternatives to detention, expand use of parole for asylum seekers, and address concerns related to the location and transfers of detainees. Immigration law scholar Andrew Schoenholtz of Georgetown University Law Center, a member of the ABA commission, called “ground-breaking” Arnold & Porter’s analysis and recommendation for the restructuring of the immigration courts. The firm examined other Article I courts, independent agencies and a hybrid of the two before recommending Article I status for immigration courts — a change that has garnered support from the judges’ union, other legal groups, academic experts and even some federal judges. “There is no question in terms of addressing these issues that I’d love to see immediate changes in caseload and resources,” said Schoenholtz. “We need more judges and more DHS trial attorneys, but we need fewer cases. When you combine the two, you begin to shape a system where DHS can prioritize who to prosecute, who to remove, and you get better quality of decision-making by judges.” Commission Chair Grisez said that for her personally, the recommendation on representation of noncitizens was “most significant” in improving the system. “I am extremely concerned about the fact that persons in these proceedings, including children and the mentally ill, are forced to go through the process without lawyers unless they’re lucky enough to find a pro bono lawyer.” Grisez said she asked Arnold & Porter to undertake the study because of the breadth of the firm’s involvement in immigration matters, its strong pro bono commitment and its understanding of the systemic problems in the immigration system.

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