5 ways the new Congress can improve our immigration system

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Whether as part of the government shutdown negotiations or through other legislative efforts, Congress can make a real difference in the lives of immigrants a number of way. Here I’ve outlined five effective steps that can be taken:

1. Ensure judicial independence

Congress should make the Executive Office for Immigration Review (EOIR) — which oversees the Immigration Courts and the Board of Immigration Appeals — an independent Article 1 court.

{mosads}Over the past year, the Department of Justice (under whose authority EOIR falls) has restricted judicial independence by establishing case completion quotas, limiting the use of continuances, administrative closure and terminations, re-calendaring all 330,211 administratively closed cases on an already overcrowded docket of 809,041.

It has also attempted to alter the law on the right to a bond hearing, duress exceptions and access to asylum for victims of domestic violence. It is unprecedented in our democratic system for the executive branch of government to exercise so much control over the Judicial branch.

This is crucial to ensure that judges can do their jobs without being subject to today’s political whims and everyone in immigration proceedings can have a fair day in court. The National Association of Immigration Judges, the American Bar Association, and the American Immigration Lawyers Association have all called on Congress to make EOIR independent. Congress held a hearing on this issue in April 2018 and should follow up as soon as possible by passing the necessary legislation.

Congress can also take independent action to eliminate the case completion quota so judges don’t feel pressured to rush through cases that require time to ensure the respondent has their due process rights protected. Lawmakers also pass other legislation to ensure judges have the freedom to effectively and efficiently manage their dockets.

2. End prosecutions of asylum seekers

Congress should pass a law clarifying that it is unlawful to prosecute asylum seekers for entering the U.S. without documents, so-called ‘‘illegal entry” or “illegal re-entry.”

Prosecuting asylum seekers for entering without documents is a violation of domestic asylum law as well as international human rights law because asylum seekers have the legal right to seek asylum regardless of how they enter the country.

Prosecuting people fleeing for their lives simply for entering the U.S. without documents is not only against the law, it is costly and impractical, and is against American values of welcoming refugees fleeing persecution. Between fiscal 2017 and 2018 “illegal entry” prosecutions increased by 86 percent to 68,400 cases and “illegal re-entry” prosecutions increased by 38 percent to 23,400 cases. Previous administrations have correctly not prosecuted asylum seekers for undocumented entry. This administration fails to understand that many families fleeing persecution don’t have a choice but to seek protection in the U.S. however they can.

3. Protect domestic violence victims

In response to the former Attorney General Sessions decision in Matter of A-B- Congress should stand up for domestic violence victims and designate them as qualifying for asylum under ‘‘particular social group’’ and/or “political opinion.”

Congress has done this before for victims of forced abortion and sterilization. As a result of Matter of A-B- many women we work with at the Migrant Center have been denied protection and face imminent deportation back into the hands of their abusers, where there is a high probability they will be beaten, raped, and possibly killed.

4. Protect family unity and well-being

Congress can put an end to all family separation, not only for young children from their parents, but also end family separation for children 18 and older, siblings, spouses, and others. If we are a nation that values families, we should work to preserve the integrity of the family.

Lawmakers can also pass legislation protecting the parent or sponsor of unaccompanied children so that the administration does not deport them while the child is going through immigration court proceedings. Fear of deportation has made some sponsors hesitant to come forward and has increased the time children remain locked up.

Additionally, Congress should stop the administration from charging parents with smuggling their children under 8 U.S. Code § 1324. Congress can pass a law clarifying that bringing a minor child with you does not constitute smuggling, thereby clarifying that we are not a country that penalizes parents and children for wanting to be together.

5. Eliminate unjustified detention

Congress should ensure that detention is only used when necessary. That should be done after an individualized determination that a person is a flight risk or a danger to the community. First, to protect children, Congress can pass legislation enshrining the detention limits and other protections of the Flores Settlement Agreement that the administration is currently in the process of dismantling. Second, Congress can end detention bed quotas, which provide an incentive to imprison immigrants regardless of necessity.

Third, Congress can ensure ICE is held accountable for making appropriate decisions by increasing transparency in decision making. Legislation is needed to require that ICE provide written notice within two weeks of release requests to both detainees and their counsel of record with an explanation of the basis for the denial, a practice they very frequently do not. It is a basic human right, and a fundamental constitutional right, for a person to know why the U.S. government is taking away their liberty.

Fourth, Congress should also grant the right to a bond hearing for arriving aliens, those who present themselves at a Port of Entry, so that there is judicial oversight of ICE decision making and all individuals are treated equally before the law (non-arriving aliens already have the right to a bond hearing, although this law is currently under review by the Department of Justice).

Lastly, lawmakers should also look at ways to re-initiate the case management program and otherwise ensure that everyone is held in the least restrictive manner possible. The case management program has proven to be very effective at ensuring appearance at immigration hearings by connecting immigrants to services that help them navigate the complexities of immigration court and help them settle in as they await their hearing.

Sara Ramey is an immigration attorney and the executive director at the Migrant Center for Human Rights in San Antonio, Texas. The views in this article are not intended to reflect the official position of the organization. 

Tags Asylum Forced migration Illegal immigration to the United States Immigration Immigration to the United States Law Trump administration family separation policy

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