Immigration system fails to serve justice

There is a set of rules that we value and rely on in the U.S. justice system: we expect that a person will receive “Miranda” warnings when arrested and be provided an attorney if he or she cannot afford one. We expect that a person held in pre-trial custody may ask for bail and that he or she has the right to a fair and speedy hearing before an impartial judge. We expect that a judge will throw out government evidence that was obtained in violation of the constitution and that a person convicted of a crime may appeal that decision. While the U.S. justice system is far from perfect and too often fails on its promises, we expect it to operate under a set of rules that affords defendants their day in court.

The immigration justice system, however, operates under an entirely different set of rules, a set of rules that falls far short of the American values of due process and fundamental fairness. In fact, the immigration system lacks nearly all of the due process protections that come into play in the U.S. criminal justice system. Immigrants facing deportation have neither a right to appointed counsel, nor a right to a speedy trial. Harsh immigration laws may apply retroactively, unlawfully obtained evidence may be used to prove the government’s case, and advisals of fundamental rights are given too late to be meaningful. Moreover, many immigrants are barred from appealing removal orders to a federal judge. Violations of due process that could not occur or would not be tolerated in the criminal justice system abound in the immigration system.
 
Today, the American Immigration Council issued a report, Two Systems of Justice: How the Immigration System Falls Short of the Ideals of Justice, which explores the various ways in which these two systems of justice are different. The report concludes that given the stakes involved in immigration cases and the increasing criminalization of immigration law, we must no longer tolerate a system that deprives countless individuals of a fair judicial process.
 
The report offers a series of recommendations that would start to bring the immigration justice system in line with American values of due process. Chief among these recommendations is that immigrants must have access to counsel at every stage of the removal process, including at the time of arrest.  The government should appoint counsel to immigrants who are unable to retain a lawyer on their own. In addition to counsel, other safeguards must be implemented to equalize the playing field. For example, immigrants should have access to immigration records and any evidence that might be used by the government against them; the government should not be allowed to rely on evidence obtained unlawfully; and all immigrants must be afforded the right to appeal their removal order to federal court.
 
Moreover, the penalty for violating an immigration law must be proportionate to the violation. This means that immigrants should not be deported for conduct that did not make them deportable at the time it took place. It also means that there should be statutes of limitations on most grounds of deportability, and there should be broad waivers of removal that allow immigration judges to consider the severity of the immigration violation as well as the effect removal will have on the immigrant and his or her family. Finally, our laws must treat immigration detention like the deprivation of liberty that it is. All immigrants should be afforded a prompt bail hearing, and the government must use alternatives to detention whenever possible.
 
Fortunately, the fact that our immigration system fails to provide equal justice under the law has not gone entirely unnoticed by those with the power to change the system. Wednesday, the Senate Judiciary Committee is holding a hearing, “Building an Immigration System Worthy of American Values” to address reforming the immigration removal process. The hearing must be followed up by action. For far too long, immigration courts have failed to provide a fair, efficient, and effective system of justice. Comprehensive immigration reform is our opportunity to bring the immigration justice system in line with American values of due process.

Werlin is the deputy director of the Legal Action Center at the American Immigration Council.

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