With daily headlines about immigration, HIAS PA is receiving more calls than ever from not just would-be clients but also the public at large, all circulating around the same question, “can they do that?” Expressions of consternation, fear and anxiety for loved ones, colleagues, friends and neighbors are coming at us almost as frequently as calls from our clients and would-be clients. While I don’t pretend to be able to explain all of the complexities and nuances of American Immigration Law in one brief column, it does strike me that I could add a little quick enlightenment about the broader context which most nonimmigration attorneys don’t understand.
So, first and foremost, it must be understood that there is no one place that a foreign-born person should go to obtain some kind of authorization to be in the country. While the rest of our civil judicial system is, by comparison, straightforward—a tenant or a landlord with a legal problem relating to the tenancy files petitions in landlord/tenant court, a person with a legal problem relating to his family unit goes to family court and a contractor seeking to be paid or a person who seeks to sue his contractor for violating the contract in some way goes to small claims court (when the payment requested or alleged damage done is below a certain value)—a foreign person seeking to come to this country or remain in this country doesn’t have one specific place to go. Where he files a petition depends on whether he is seeking to come to the country temporarily (as a nonimmigrant) or permanently (as an immigrant), whether he seeks to remain in the country after already having entered (with or without authorization) or whether he is seeking to remain in the country after having been placed in deportation proceedings. Not every person who was not authorized to enter the country is placed in deportation proceedings. Therefore, some persons who entered without authorization but then have a valid legal claim for remaining in the country can make that claim by filing the appropriate petition with the appropriate administrative agency. So, when a family member, neighbor or colleague confesses to you that he has an immigration concern, know that it is not a simple matter to “go to immigration court” and straighten it out. The person’s circumstances must be evaluated to determine if there is a legal basis for remaining in the country and if there is, there must a determination about where that person should be making that claim.
This brings us to the second problem with immigration law in the United States. While immigrants who have been placed in deportation proceedings can be detained in a prison, they do not have a right to counsel. Some states, New York being the most advanced, have in recent months made attempts to fund attorneys for detained immigrants who can’t afford them but most states, including Pennsylvania, do not, as yet, have this funding. Therefore immigrants, unlike any other persons in this country and completely contrary to all of our laws and decisions which proclaim the importance of liberty above all else, can be locked up for months and some for years while awaiting a hearing regarding their deportation. HIAS Pennsylvania regularly provides legal and social services to persons who were locked up for several years while waiting for a hearing on their deportation cases. Ultimately, they are released and assisted by us because the court granted their request for asylum or for other legal reasons that means that they are not removable.
And this brings us to the third and final problem for purposes of this article. When in deportation proceedings, matters are sent to immigration court for adjudication. A party that is unsatisfied with a result there can file an appeal to the Bureau of Immigration Appeals. This process, of course, looks very much like any other legal process in our country—go to a subject matter court, like landlord/tenant court, and if unhappy with the decision there, appeal to a higher authority such as, in Pennsylvania, the Commonwealth Court. However, here is where the parallel ends. Immigration courts are part of the executive branch—not the judiciary. Therefore an executive agency, the Department of Justice, run by a presidential appointee, is in charge of running the immigration courts and the Bureau of Immigration Appeals (BIA). So how has that played out in the current administration? Attorney General Jeffrey Sessions has used his authority to “refer” BIA decisions to himself for review. Any decisions which he then disagrees with, he can vacate or otherwise change. See Matter of E.F.H.L. Respondent 27 I&N Dec. 226 (A.G. 2018) (reviewing Matter of E.F.H.L. Respondent 26 I&N Dec. 319 (BIA 2014) and finding that because petitioner ultimately withdrew his application for asylum decision affirming the right to a fair hearing should be vacated as moot). He has also made plans to place a quota on the number of cases that he expects Immigration Judges to complete per year and to impose penalties on remands that are made. See http://www.latimes.com/opinion/editorials/la-ed-immigration-courts-trump-sessions-backlog-20180409-story.html (showing how imposing such quotas violates due process) (last visited 4-16-18).
Because immigration adjudications are part of the executive rather than the independent judiciary branch, justice for the immigrant in deportation proceedings is severely compromised. Appeals of BIA decisions can be taken to the circuit courts, part of the independent judiciary, but again, as there is no right to counsel in immigration cases and appeals, in any event, are prolonged, this level of independent review is hardly sufficient to guard against due process concerns.
Cathryn Miller-Wilson is the executive director of HIAS Pennsylvania and can be reached at firstname.lastname@example.org or 215-832-0954.