Will Due Process Protections Be Preserved in Senate Mark-Up?

shutterstock_84372619On Thursday, the Senate Judiciary Committee began its mark-up of Title III of S.744, the Border Security, Economic Opportunity, and Immigration Modernization Act. When the mark-up continues on Monday, Senators are likely to vote on amendments addressing immigration courts. These amendments will be crucial in determining whether the full Senate receives a bill that provides due process protections to immigrants in removal proceedings.

S.744 would make significant improvements to an immigration court system that, for far too long, has failed to provide thousands of noncitizens with a meaningful opportunity to be heard. Currently, immigrants are deported without ever seeing a courtroom or after their cases receive only perfunctory review. Vulnerable noncitizens go before a judge without access to an attorney or necessary evidence. And, each year, thousands of noncitizens are detained throughout the immigration court process – often far from family, the evidence and witnesses they need for their case, and legal services – without being afforded an opportunity to ask for bail. This is a system that falls far short of the American values of due process and fundamental fairness.

S.744 contains key provisions that would improve the immigration court system by directing additional resources to the immigration courts, providing counsel for some noncitizens, enhancing review of removal decisions, and reigning in the overblown detention regime. In so doing, S.744 would help ensure that noncitizens get a fair hearing. However, next week, these important reforms may face attack from a variety of amendments, which would return the system to the status quo or even make things worse:

  • Gutting the bill’s program to provide counsel for certain vulnerable immigrants, including children and people with serious mental disabilities;
  • Expanding the already overbroad and wasteful immigration detention system and eliminating a cost-effective program that allows DHS to use secure alternatives to detention, like ankle monitors;
  • Making it more difficult to get bond hearings and reasonable bond;
  • Eliminating provisions to ensure that noncitizens who give up their right to a full hearing do so voluntarily and with an understanding of their rights and options;
  • Cutting the bill’s expansion of Legal Orientation Programs (LOP), leaving many detained immigrants without even basic information about their rights and the immigration court process;
  • Rolling back the bill’s expansion of immigration judges and staff for immigration courts and the BIA, leaving no way to address the system’s lengthy backlog; and
  • Eliminating the bill’s guarantee of 3-judge panels from the BIA.

In addition, Senators are likely to offer amendments that would further ensure immigrants have access to fair hearings. For example, the Judiciary Committee will likely consider an amendment that would provide noncitizens facing removal with automatic access to their immigration records. The Committee also may consider an amendment that would help ensure that people who are able to demonstrate compelling reasons for not appearing for their hearing are not ordered deported and would prevent immigrants from being deported for crimes that were not cause for deportation at the time they were committed. Votes on these amendments will be key in determining whether future immigrants will have a meaningful opportunity to be heard when facing deportation.


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  1. I think addressing the first bullet point above (providing counsel) will address a long standing injustice in our immigration court system. For far too long immigrants (who are often of low economic status) have been denied the right to counsel in matters directly affecting their ability to remain with their families stateside. It is crazy that we allow appointed counsel for murderers solely because of their citizenship status, but deny assistance to otherwise law-abiding people because they are undocumented. Removal cases and other immigration matters do not only affect the undocumented subject, but also their family members here in the U.S. who are often U.S. Citizens. What good does it do to deport an undocumented single mother of citizen children when those children will be forced into the foster care system thus creating an additional economic burden for society.

    If any of the bullet pointed issues above are allowed into the bill, undocumented immigrants will still face something less than legal presence. They will still be in the shadows as people who have some rights but not others. Providing due process would strengthen the system and even allow the government to justify decisions that may be seen as negative from the public perspective. Hopefully economic and efficiency interests will not prevent the creation of a system that is truly fair for everyone.

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