March 20, 2013 STATEMENT–LIRS Statement for Hearing: “Building an Immigration System Worthy of American Values”

Press Contact: Jon Pattee, LIRS Assistant Director for Media
202-591-5778, jpattee@lirs.org

Lutheran Immigration and Refugee Service (LIRS), the national organization established by Lutheran churches in the United States to serve uprooted people, is pleased by Congressional and Administrative efforts to draft and enact comprehensive immigration reform. LIRS is grateful for the Senate Judiciary Committee’s decision to hold a public hearing regarding the need for due process, fairness, and justice in our immigration system within the context of immigration reform.

“LIRS and our broad network of social ministry organizations, churches and church leaders are committed to ensuring that U.S. immigration policies are consistent with our country’s fundamental values and afford justice to all,” says Linda Hartke, LIRS President and CEO.

Three essential steps towards a just immigration court system are providing the Department of Justice’s Executive Office for Immigration Review (EOIR) with funding for robust and efficient case adjudication and custody determinations, and expanding funding for EOIR’s Legal Orientation Program to reach all facilities that detain immigrants on behalf of the Department of Homeland Security, Immigration and Customs Enforcement (ICE).  Additionally, appointment of government funded counsel for unrepresented and vulnerable migrants and refugees in removal proceedings promotes both justice and efficiencies.

Finally, provisions of law that require mandatory detention should be replaced with individualized assessments and the asylum filing deadline should be eliminated.

Limited Funding for EOIR Limits Access to Fair Process in Immigration Proceedings

With approximately 84% of detained immigrants appearing before the courts without an attorney, immigration judges are increasingly presiding over cases presented by respondents who are ill-informed and unprepared to make educated decisions about their cases.[1] These factors make the court process less efficient and more prone to reaching improper conclusions.  Dana L. Marks, an immigration judge in San Francisco and the president of the National Association of Immigration Judges, has stated that immigration judges often feel that asylum hearings are “like holding death penalty cases in traffic court.”[2]

Increased Immigration Enforcement, Yet Limited Funding Support for Courts

Despite generous congressional support for Department of Homeland Security’s (DHS) immigration enforcement initiatives, EOIR has not received sufficient support to keep pace with the number of DHS-initiated removal cases. From FY 2004 to 2010, DHS’s budget for border and interior enforcement grew by over $6 billion. During this time period, EOIR’s budget increased by just over $100 million.  The discrepancy in funding between DHS and EOIR remains a challenge.

Between FY 2001 and 2011, the number of immigrants detained by the federal government increased from 209,000 to 429,000. The dramatic growth in detention has contributed to the overwhelming caseloads for EOIR’s immigration judges, as the detained docket has faster case completion timelines and fewer detained individuals are represented by counsel. The summer of 2012 ended with a new record backlog in immigration courts of 322,681 cases, 23 percent higher than two years earlier. The backlog in January 2013 remains 23.2 percent higher than at the end of September 2010. [3]

EOIR’s Legal Orientation Program Improves Immigration Court Efficiencies, But Its Reach is Limited

The vast majority of detained immigrants are unrepresented by legal counsel in their legal proceedings before the court. EOIR’s Legal Orientation Program (LOP), operational only 25 of the approximately 250 detention facilities nationwide, helps to fill in important gaps. Funding LOP at additional facilities would increase the cost savings, improve efficiencies, and lead to more just outcomes in immigration courts.

LOP improves the efficiency and effectiveness of the immigration court process, producing significant cost saving benefits to the government. According to an April 2012 EOIR report to the Senate Committee on Appropriations, LOP reduced case processing times by an average of 12 days when compared to detainees who did not receive LOP. A reduced duration of immigration court proceedings leads to a reduction in detention time, which is significant as detention costs ICE on average $164 per detainee per day. The report also found that after deducting the cost of providing LOP services, the net savings to the government in FY 2011 were more than $17.8 million.[4]

The impact of LOP on the federal immigration system has been widely praised:

• EOIR’s immigration judges have praised LOP for better preparing immigrants to identify forms of relief and to recognize when no forms of relief are available.[5]
• Detention facility staff observed a reduction in behavioral problems when detainees have access to legal information.[6]
• LOP participants who are released on bond or their own recognizance are more likely to appear for future court hearings than those who did not participate in the program.[7]
• Attorney General Holder has described LOP as a “great success story” and a “critical tool for saving precious taxpayer dollars” based on savings to immigration courts and the immigration detention system.[8]

For individuals, LOP educates detained immigrants so that they can, at the very least, understand their legal options and responsibilities and make more informed decisions about their immigration cases. Immigrants in detention are often housed in areas that are far from their family, attorneys, and other social services providers. LOP helps to mitigate the isolation of detention by providing detainees with basic information on forms of relief from removal, how to accelerate repatriation through the removal process, how to represent themselves without an attorney, and how to obtain legal representation.

Vulnerable Individuals Require Counsel for Just and Efficient Court Proceedings

Immigration proceedings are a daunting labyrinth for any individual to navigate alone – especially as the consequence of deportation is tremendous – and the challenges are exacerbated in detention. Yet 84 percent of detained immigrants go through the process without counsel.

At a minimum, the government should provide counsel for the most vulnerable individuals in detention, including children and individuals with mental disabilities. Providing counsel to the most vulnerable individuals in removal proceedings will save court resources as well as promote fairness. EOIR has expressed “great concern” about the large number of individuals appearing in immigration court without representation, and has also noted that “[n]on- represented cases are more difficult to conduct,” and that they require additional effort and time from immigration judges. Legal representation is vital to ensure the immigration courts serve immigrants with mental disabilities and other vulnerable populations, including juveniles, fairly and efficiently.

Individualized and informed detention determinations and removal decisions are preferable to arbitrary and overbroad mandates.

Federal enforcement laws and policies should not use a blanket approach for reaching detention determinations.  Such one-size-fits-all enforcement methods have led to more migrants being detained than is necessary to meet the goal of immigration detention—compliance with immigration processes.  Congress should allow Immigration Officials to utilize discretion based on individual circumstances when making detention determinations, and Immigration Judges to use discretion when holding custody redeterminations.

ICE has recently developed and implemented nationwide use of a risk assessment tool to reach consistent and informed determinations of when detention is truly necessary and when low-risk migrants should be released or placed in a less-restrictive program.[9]  This tool should enable the government to identify which individuals present genuine risks of flight or threats to public safety as well as people who may be negatively impacted by detention, such as survivors of torture, domestic abuse victims, and other victims of violence.

An effective risk assessment should also inform the government about the level of risk in individual cases and how to mitigate any risk in the most cost-effective and least restrictive manner, including the use of alternatives to detention. Equipped with relevant information, the government would be empowered to facilitate the safe release of vulnerable migrants who pose no risks of flight or danger, but whose applications are pending in the immigration courts or on appeal. A system of informed decision-making, a continuum of effective alternatives to detention, and a process of release that promotes safety will foster long-term security and model efficient and just governance that is consistent with the spirit of welcome the United States is known to embody.

ICE should continue to monitor the results of this important assessment tool and make adjustments as necessary to best tailor detention determinations to the mission of the agency while maximizing cost-effective release and supervision options.

Finally, Congress should restore discretion to immigration judges to consider all equities in removal decisions. Immigration judges should be given authority to ameliorate hardship faced by families who might otherwise be forced apart by detention or removal from the United States.

Elimination of One-Year Filing Deadline for Asylum Applications

The existing one-year filing deadline for those seeking asylum in the United States should be repealed.  The filing deadline has barred individuals fleeing persecution from receiving asylum.  It has also delayed the resolution of asylum cases and required thousands of cases that could have been resolved at the DHS Asylum Office to be shifted to an already bursting immigration court docket.  Asylum seekers presenting their claims before an immigration court face an adversarial process that can be retraumatizing for survivors of torture and other forms of persecution.  Many asylum seekers are pro se and struggle to navigate the complexities of our immigration legal system.

LIRS recommendations to Congress regarding the Department of Justice’s Executive Office for Immigration Review:

• Direct the government to appoint legal counsel for extremely vulnerable populations, such as mentally incompetent individuals or children. Providing counsel will save court resources and promote fairness.
• Eliminate the one-year filing deadline for asylum seekers. U.S. laws must be changed to ensure the efficient use of EOIR and DHS resources and the protection of bona fide refugees.
• Extend initial jurisdiction of all asylum cases filed by children under the age of 21 to DHS’s Asylum Office. A change in law is needed to best utilize the expertise and strengths of DHS Asylum Officers, reduce the burdens on immigration courts and prevent vulnerable children from having to face adversarial asylum proceedings.
• Provide EOIR with robust funding. U.S. immigration courts need more staff and resources to address the overwhelming number of cases being referred by DHS and to allow them the time and legal support to carefully consider each case.
• Expand LOP funding to reach all facilities that detain individuals on behalf of ICE. Increased LOP funding would improve immigration court efficiencies and ensure that individuals in detention receive basic information.
• Restore discretion to immigration judges to consider all equities in removal decisions. The government should be given authority to ameliorate hardship faced by families who might otherwise be forced apart by detention or removal from the United States.

LIRS recommendations to Congress regarding the Department of Homeland Security:

• Oppose restricting the liberty of migrants based on arbitrary determinations that do not evaluate individual risk factors or demonstrate the need to detain.
• Repeal federal statutes that mandate detention without an individualized assessment of the need for detention, i.e., a real public safety threat or a demonstrated risk of flight that cannot otherwise be mitigated.
• Ensure access to judicial review of any decision to restrict liberty, including but not limited to the use of detention.
• Require any restriction of liberty to be the least restrictive form of custody necessary and proportionate to meet government interests.
• Eliminate the one-year filing deadline for asylum seekers. U.S. laws must be changed to ensure the efficient use of EOIR and DHS resources and the protection of bona fide refugees.
• Amend overly-broad anti-terrorism provisions that define “material support” too broadly and define victims of terrorists as terrorists for purposes of admissibility to the United States.

LIRS is nationally recognized for its leadership advocating with and on behalf of refugees, asylum seekers, unaccompanied children, immigrants in detention, families fractured by migration and other vulnerable populations, and for providing services to migrants through over 60 grassroots legal and social service partners across the United States.

If you have any questions about this statement, please feel free to contact Brittney Nystrom, Director for Advocacy at (202) 626-7943 or via email at bnystrom@lirs.org.

Additional LIRS Resources

• The March 14, 2012 LIRS statement for the House Appropriation Committee, Homeland Security Subcommittee hearing on immigration detention releases may be read here:  https://www.lirs.org/press-inquiries/press-room/031413statement/
• The March 19, 2012 LIRS statement for the House Judiciary Committee hearing on immigration detention releases may be read here: https://www.lirs.org/wp-content/uploads/2013/03/LIRS-Statement-for-Hearing-3-19-13-final.pdf
• The October 2011 report, Unlocking Liberty: A Way Forward for U.S. Immigration Detention Policy, may be read here: www.bit.ly/VwrNFE
• The May 18, 2011 LIRS statement for the hearing on improving efficiency and ensuring justice in the immigration court system may be read here: https://www.lirs.org/press-inquiries/press-room/051811statement/