At its annual meeting, the American Bar Association (ABA) called for an overhaul of the immigration court system. Currently, immigration courts operate under the aegis of the attorney general, which the ABA says leads to conflicts of interest. As Dana Marks, president of the National Association of Immigration Judges, told the Times, "There have been increasing concerns about the propriety of housing a neutral court in the law-enforcement arm of the government." The ABA has proposed setting up special courts to hear immigration cases -- like those that hear tax cases -- to avoid these conflicts.
In addition to being overburdened with cases (some judges will make life-changing decisions for 50 immigrants a day), the immigration courts are also highly politicized. A 2007 Washington Post investigation found that under Bush, one-third of immigration judges had Republican connections and half had no experience in immigration law. There is also little consistency: Immigration advocates point out that whether one's request for asylum is granted largely depends on the judge hearing the case.
But the larger problem, which the ABA suggestion doesn't really address, is that immigration decisions are generally not subject to review by the judiciary. The Supreme Court has consistently avoided infringing on the executive branch's power to make immigration and naturalization decisions, thus limiting the role courts can play in protecting immigrants' rights. Immigrants do not have full due-process rights -- like the right to legal counsel -- because, the courts have reasoned, “deportation is not a punishment.”
It seems like an intractable problem. Short of judicial intervention, the only recourse is political, and Congress has largely ignored calls for immigration reform. It will require outside political pressure to get Congress to act on the ABA's recommendation, but the media largely ignores the issue -- that is, except when news is slow and they decide it's time to invent another "border violence" crisis.
-- Gabriel Arana
