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Arnold & Porter and the ABA Commission on Immigration Release Immigration Reform Report

March 21, 2019

A team of Arnold & Porter lawyers, led by Larry Schneider, was recognized yesterday for its role in producing a report, "2019 Update Report – Reforming the Immigration System: Proposals to Promote Independence, Fairness, Efficiency, and Professionalism in the Adjudication of Removal Cases." The report is an update to a 2010 report, also produced by Arnold & Porter for the ABA Commission on Immigration.

The two-volume, 225-page 2019 report once again takes a critical look at the immigration adjudication system (for removal, or deportation, of noncitizens), finding a severe lack of safeguards to ensure efficiency, fairness, and due process for noncitizens, including lawful permanent residents.

"We need legislation, system restructuring, and a whole series of reforms," Schneider said. The report includes more than 100 proposed reforms.

The event, carried live on C-SPAN, took place at the National Press Club and featured a panel, including Schneider; former Arnold & Porter attorney Michael Lee; Mary Giovagnoli, Executive Director of Refugee Council USA; Karen T. Grisez, pro bono counsel at Fried Frank; and Wendy Wayne, Chair of the ABA Commission on Immigration and founder and Director of the Immigration Impact Unit at the Committee for Public Counsel Services.

Panelists discussed the current state of immigration courts and removal adjudication, pointing out that conditions for immigrants seeking due process have worsened since the original report was issued nine years ago. The backlog of immigration court cases has more than tripled from 262,000 in 2010 to 800,000 today. A culture of "zero tolerance" has led to an increase in detentions and deportation proceedings. The growing use by the US Attorney General of self-certification (the authority to take cases away from the Board of Immigration Appeals and overrule or rewrite BIA decisions) has created severe unpredictability and the perception of unfairness. And, significantly, political pressures under the current Administration have created an atmosphere where "expedited removal is almost the default," Giovagnoli said.

The report issued Wednesday echoes many of the 70 recommendations made nearly a decade ago and adds many new recommendations. A major proposal includes the creation of an independent federal court under Article I of the US Constitution, based on models such as the Federal Tax Court and the Bankruptcy Courts, to replace the immigration courts and Board of Immigration Appeals that currently are housed within the U.S. Department of Justice. Such a court would remove many of the political considerations currently plaguing the system and allow for more consistent and timely application of immigration laws. Lee noted that today, immigration judges are not independent, "they're staff attorneys at the Department of Justice" largely carrying out the enforcement agenda of the agency.

Other recommendations include:

  • Require the Board of Immigration Appeals to issue more robust opinions, addressing all non-frivolous issues raised rather than often issuing decisions that address only a single issue; and require the opinion to be issued by a three-member panel, rather than one BIA judge.
  • Return discretion back to Immigration Judges to control their docket, according to the specifics of a case using continuances or other tools
  • Ensure fair treatment at removal hearings (including limiting the use of video teleconferencing for merits hearings), particularly for noncitizens who fear persecution or torture if returned to their country of origin
  • More broad-based training for immigration judges using non-lawyers, medical, and mental health professionals
  • Create a consolidated Code of Conduct specifically for Immigration Judges

Schneider accepted an award on behalf of the firm.

Bob Carlson, president of the ABA, thanked Arnold & Porter lawyers for their years of dedication in researching and producing the report, noting that together "we will bend the arc of the moral universe toward justice."

Arnold & Porter lawyers, professionals and staff involved in the effort included Ashley Bender, Kristine Blackwood, Catherine M. Brinkley-Talley, Dana Campos, Jean C. Choi*, Gaela Gehring Flores, Sean Hennessey, Kristin Hicks, Catherine Kettlewell*, Lucy S. McMillan, Theresa S. Nguyen, Sally Pei, Nancy L. Perkins, Csaba Rusznak*, Ronald A. Schechter, Lawrence A. Schneider, Pedro Soto*, Elizabeth S. St. John, Laura W. Tejeda*, Asim Varma, Carlyn S. Williams, Roxana E. Boyd, Elizabeth A. Fournier, Emily L. Clark*, Theresa L. Denson, Rodney Ellis, and Daniel J. Horne.

* No longer at Arnold & Porter