Immigration illustration

Immigration | Kate Evans

In a broken immigration system, fix enforcement and our message

Kate Evans

There are lots of issues that demand swift attention and action by the Biden administration, including changing the many ways that non-citizens and their family members, who are often U.S. citizens, are facing myriad walls internally and at the border. Addressing ineffective and unfair enforcement is an important first step. 

The immigration courts comprise a large piece of our immigration system and we need to restore fairness to that area of adjudication. 

These courts have a backlog of about 1.2 million cases, largely due to the Trump administration’s elimination of an enforcement priority system. Anybody who was here in violation of immigration laws became a target for enforcement, regardless of their ties, regardless of the effects of deportation on families and communities, but also regardless of whether or not they might have strong claims against deportation. As a result, the immigration courts are bogged down. The Biden administration’s decision on day one to redirect enforcement resources to targeted security priorities could help purge the courts of thousands of cases that do not serve our national interests. The order to halt deportation for the first 100 days of his term is also critical to allow for an evaluation and realignment of these priorities. 

Guaranteeing legal assistance for indigent non-citizens in immigration court could help assure that outcomes are just and not simply based on wealth. 

The attorney general is given the primary responsibility for interpreting the immigration laws, and the series of attorney generals within the Trump administration issued a staggering number of decisions that reversed prior precedent, including some high-profile asylum rulings that significantly restricted access to humanitarian protection. They also issued rulings that limited immigration judges’ authority to manage cases in a way that promoted fairness and a full resolution of an individual’s case inside and outside of the courts. Giving the judges back their independence is critical to assuring full and fair proceedings. 

There are a couple of bigger and fundamental reforms that that would do a lot to ensure that our immigration courts work well. One is to guarantee legal assistance for indigent non-citizens in immigration court to help assure that outcomes are actually just and not simply based on wealth. 

A bigger “ask” is restructuring the immigration courts as Article I courts, like bankruptcy courts. This is a reform supported by the American Bar Association and other advocates in response to the Trump administration’s ideological hiring and reversal of longstanding precedents and regulations. Restructuring the immigration courts would go a long way towards insulating what are akin to death penalty cases from a politicized traffic-court scenario, to paraphrase a former president of the National Association of Immigration Judge’s characterization of deportation proceedings. It’s a rule-of-law matter and simply about procedural protection and due process. It’s looking at protecting these institutions and the fairness associated with them.

Ideally there needs to be comprehensive immigration reform, and the president proposed a bill on his first day in office. So much of what has been disputed and politicized under both the Trump and Obama administrations is about the amount of space that exists for executive branch policy and enforcement action. That’s because our immigration laws haven’t been modernized in more than 50 years and they don’t function in a way that our society, our families, and our economy demand. As a result, there is this big space that is essentially left to the executive branch to set, administer, and enforce immigration policy. The shift in Senate control offers an opportunity for Congress to reclaim its role and implement the kinds of reforms that have been called for by businesses, faith-based communities, labor organizations, community groups, and a majority of voters in both parties.  

With these changes, alongside a reopening of our country to asylum-seekers and refugees, the Biden administration can reestablish the country as one that welcomes and values everyone. 

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Magazine Cover - Rebooting America

Winter 2021
Volume 40 | No. 1