I'll be speaking this afternoon at the Association of American Law Schools annual conference in the Immigration Law and Administrative Law sections' co-sponsored session entitled Adjudication in Immigration Law: Concerns and Realities. My talk focuses on the severe flaws in the immigration adjudication system, a topic on which I've written and blogged before. For those who will be in attendance and are averse to ruined punchlines, read no more! But for those who won't be joining us in NOLA, here's a sneak preview:Immigration scholars have decried the state of immigration adjudication for years, noting the serious deviations from minimal due process standards. My recent co-authored study, Refugee Roulette, highlights the extreme disparities in decision-making in the asylum system that result from these systemic problems. The dire lack of resources allocated to the system is a central problem; the adjudication process screams for more immigration judges, more clerks and clerical support for those judges, and more professional development programs for judges on the bench. As enforcement of immigration laws becomes more stringent, the problem gets worse: from 1998 to 2008, the number of matters received by immigration courts increased by 24% while the number of immigration judges increased by 6%.
Enter comprehensive immigration reform. With a Democratic President and a Democratic majority in both houses, this would seem a prime opportunity to improve the immigration adjudication system. What does the CIR ASAP bill introduced by Rep. Luis Gutierrez in December, likely the more immigrant-friendly and less politically viable of the comprehensive immi
gration reform proposals, have to say about the state of the immigration courts? In line with the enforcement emphasis of the past decade, the bill contains generous increases in border patrol personnel, support, and equipment, including 5000 new border patrol officers by 2014, 1200 agriculture specialists (!) by 2014, $1 billion each year through 2014 to improve border ports, and even body armor, GPS, night vision equipment, and power boats for border enforcement. In striking contrast, the bill does not even mention funding for immigration courts.While the CIR ASAP bill contains many provisions beneficial to immigrants, I query the value of improved laws if the adjudication process remains severely dysfunctional. I'm hopeful but not optimistic that the Schumer/Graham comprehensive immigration reform expected early this year will include increased funding for immigration courts. The same goes for the likelihood that the Obama Administration will promote intelligent enforcement of immigration laws, including increased prosecutorial discretion. Without a functional adjudication process, it will be hard to meet even the most basic standards of fairness in the immigration arena.
