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Greg Siskind on Immigration Law and Policy

ABA ENDORSES PLAN FOR CREATING NEW INDEPENDENT IMMIGRATION COURT

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The American Bar Association endorsed a proposal at its winter meeting in Florida to create a separate immigration court system modeled on the federal tax courts. The ABA criticized the current system that the association says is overwhelmed and cannot function effectively since it is under the control of the Attorney General rather than independent. 

The ABA also approved a number of other recommendations including

- increasing the use of prosecutorial discretion to reduce the number of Notices to Appear served on noncitizens who are prima facie eligible for relief from removal or adjustment to lawful permanent status;

- establish a pilot program requiring approval by a DHS lawyer prior to issuance of discretionary Notices to Appear by DHS officers;

- upgrade DHS's data systems to better track detainees within the detention system and improve transfer protocols to ensure families and lawyers are properly informed of transfers of detainees;

- amend the definition of "aggravated felony" to require that any conviction must be for an actual felony with a term of imprisonment of at least a year imposed. Also, eliminate the retroactive application of aggravated felony provisions and restore a judge's discretion to consider a discretionary cancellation of removal for humanitarian reasons. Also, require that single crimes of moral turpitude should be crimes for which a sentence of more than a year was actually imposed.

- Add additional hiring criteria in applications for immigration judge positions to evaluate a candidate's background and judicial temperament including the ability to understand and consider the effect of cultural differences and to allow more public input in the hiring process by permitting professional organizations to screen candidates during final-level consideration.

- Regarding the Board of Immigration Appeals, increase resources available to the BIA including additional staff attorneys and Board members; require three-member panel review in all non-frivolous merit cases lacking obvious controlling precedent; extending the deadline for issuing decisions from 90 to 180 days from receipt of an appeal; restoration of the BIA's ability to review immigration judge factual findings and credibility determinations; issue more precedential decisions; make non-precedential decisions available to the public; require that all written decisions include responses to all non-frivolous arguments; apply a new code of conduct on BIA members;

- Restore the US Court of Appeals' authority to review discretionary decisions of the Attorney General under the abuse of discretion standard in effect prior to the 1996 immigration act; permit the courts of appeal to remand cases to the BIA for further fact finding; extend the 30 day deadline to file an appeal to the courts of appeal to 60 days with a provision to obtain a further 30 day extension for good cause or upon a showing of excusable neglect;

- Allow civil monetary penalties to be imposed by immigration judges against government attorneys as well as other representatives;

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