I recently received a comment on my Facebook page relating to a news article that I shared which discussed the possibility of legal representation being made more readily available for unaccompanied minors. To fully deal with all of the issues that our Immigration system faces would require numerous blog posts, so I am going to attempt to keep the issues narrowed down to those most relevant to the Facebook comment that I received.
Our Constitution offers certain protections for all person in the United States. The presence of these protections arise from the principles that our country was founded upon; namely that all men are created equal. More specifically, the 5th and 14th Amendments provide for due process of law.
“Immigration proceedings, although not subject to the full range of constitutional protections, must conform to the Fifth Amendment’s requirement of due process.”[1] As the U.S. Supreme Court outlined in Galvan v. Press, 347 U.S. 522, 531 (1954), policies concerning immigration are uniquely concerned with the political conduct of the government, but the executive branch of the government must respect the procedural safeguards of due process when enforcing immigration policies. In INS v. Chadha, 462 U.S. 919, 940-41 (1983), the U.S. Supreme Court went further in stating that the power of Congress over immigration matters is not open to question, but how this power is implemented must comport with the Constitution as its implementation cannot offend some other constitutional restriction.
Due process means that there is a right to a fair process and to be heard. In Immigration proceedings, this means that immigrants are given the right to a fair hearing and to present their case for relief from removal. Calling for due process does not mean that we are giving away everything and that we are picking and choosing between the laws.
When I hear people talk like the comment I received, it makes me disappointed. Disappointed in our media system and our politicians who are so eager to score political points or to make it big that they report things as fact that are not true or are not the whole story. And, because these are the things that are reported, people who are not in a position to know otherwise believe these things as gospel.
The reality is that our immigration system is broken. Immigration reform is desperately needed and, when you talk to most who are familiar with the issues in the Immigration system, the Immigration reform that is being called for is not amnesty; rather it is something far from it that would require years and the payment of significant fines to navigate. Most of the talking heads in the political world refer to any Immigration reform that offers any path to legalization as amnesty. However, amnesty is a true forgiveness without any punishment, which is what was done under the Reagan administration in the 1980s. The Senate has already passed a bill, which the House refuses to bring to a vote, which would call for approximately $10,000 worth of fines per person; a 10 year probationary period; plus other requirements such as paying back taxes, ineligibility for certain tax benefits, learning and passing an English proficiency exam (which is already required for citizenship), passage of a civics exam (which is also already required), as well as a requirement to refrain from breaking any other laws (including most minor traffic offenses) of this country. All to only become Lawful Permanent Residents and then not be eligible to apply for citizenship, with all of the hurdles of that application, for at least 5 years. In essence, this is a much harsher sentence than many drug offenders, murders, child molesters, or other criminals face in our criminal system; yet it is being referred to as amnesty. Let's add that the bill proposed would include a cut-off date requiring persons to prove physical presence in the United States for at least 5 years prior to that date, so it is not a blanket invitation for continued migration. The main reason this is opposed is not out of some moral obligation or a sense of saving our nation money (because it would actually help lower our national deficit and debt, which will require a separate blog post to explain); it is because 80% of those estimated 7 million voters would vote for the Democratic party once eligible to vote (which would be at least 15 years).
Today, enforcement continues to be stepped up, but provisions to allow the Immigration courts to function keep being stalled. Immigration proceedings truly are death penalty consequences in a traffic court setting. Our Immigration judges are forced to decide which immigrants qualify for the limited forms of relief available while denying many more heartbreaking cases; cases where they know that their decision carries the equivalent of a death sentence to the person in front of them. The denial rate for asylum cases alone is about 75%. The numbers for the other limited forms of relief are not much better. Practically, for the current influx of children crossing the border, asylum is the primary form of relief for which they would even possibly qualify for; staggering numbers when you consider the denial rate.
Today, enforcement continues to be stepped up, but provisions to allow the Immigration courts to function keep being stalled. Immigration proceedings truly are death penalty consequences in a traffic court setting. Our Immigration judges are forced to decide which immigrants qualify for the limited forms of relief available while denying many more heartbreaking cases; cases where they know that their decision carries the equivalent of a death sentence to the person in front of them. The denial rate for asylum cases alone is about 75%. The numbers for the other limited forms of relief are not much better. Practically, for the current influx of children crossing the border, asylum is the primary form of relief for which they would even possibly qualify for; staggering numbers when you consider the denial rate.
When appearing before the Immigration courts, immigrants are afforded a right to be represented by an attorney; yet it is a limited right because they must hire and pay for their own attorney. This has always been a difficult task, but it has become even more difficult in recent years with nonprofits and schools that provide pro bono legal services losing funding. Having an attorney is vital, though, in a system that many attorneys find to be confusing at best. From a practical standpoint, having attorneys allows the Immigration courts to function more efficiently because attorneys can guide the immigrants to the forms of relief from removal for which they are eligible, advise those who wish to return to their home country on how best to do so, and ensure that rights are protected.
Moving back to the unaccompanied minors. When news reports are shown, oftentimes what's shown are teenagers who come across. While still minors and in need of assistance to navigate the system, it is easier for people who are not dealing with the system day to day to dismiss the need for added protection when it is teenagers. However, what many do not think about are the many young kids, 2, 3, 4, and 5 years old, just to name a few ages, who come across unaccompanied. These children need assistance to navigate the system. Yes, there may be some who do not qualify for immigration relief and the best that an attorney can do is to ensure that safeguards are in place when they leave rather than them simply being dumped a few miles across the border. But, for others, they may be victims of crime at the hands of U.S. Citizens, have be kidnapped and trafficked across the border by the cartels, or be fleeing from persecution. Without due process, these kids will not receive the protection they deserve; the protection that our laws call for. How can we call the process fair or claim that they have been afforded the right to be heard with no protections?
Let us add that certain protections are necessary. Some of these children being detained may very well be United States Citizens. The comment on my Facebook page included a statement that we should be sending these children back their parents. Yet, with these children, they may not even know who or where their parents are, may be orphans, or may be fleeing abusive situations. They may also be runaways from within the U.S. who happened to be apprehended and sent to Immigration and Customs Enforcement solely because of their ethnicity and/or proximity to the border. There have been numerous reports from reputable sources recounting cases where children or mentally handicapped individuals were deported from the United States when they were second or third generation U.S. Citizens with their families living in the United States and unable to locate them for months and may only find them after reporting them missing and an FBI photo search locating them if a photo was taken for there to be a photo match. Perhaps the myth needs to be dispelled that ICE and Border Patrol officers are friendly at the border, within the U.S., or even have the time or resources to create an environment in which children would recount their stories. In fact, ICE agents are on a quota for the number of individuals they must deport every week, month, and year. It is simply impossible for ICE and Border Patrol officers to be able to make the determination for every person entering and due process be afforded without going through the Immigration courts. And, for children, it is impossible for this determination to be made without representation because they are simply not capable, due to their legal disability of being minors and lacking capacity, to be able to answer the necessary questions or to know the information necessary to navigate the Immigration system.
Let us add that certain protections are necessary. Some of these children being detained may very well be United States Citizens. The comment on my Facebook page included a statement that we should be sending these children back their parents. Yet, with these children, they may not even know who or where their parents are, may be orphans, or may be fleeing abusive situations. They may also be runaways from within the U.S. who happened to be apprehended and sent to Immigration and Customs Enforcement solely because of their ethnicity and/or proximity to the border. There have been numerous reports from reputable sources recounting cases where children or mentally handicapped individuals were deported from the United States when they were second or third generation U.S. Citizens with their families living in the United States and unable to locate them for months and may only find them after reporting them missing and an FBI photo search locating them if a photo was taken for there to be a photo match. Perhaps the myth needs to be dispelled that ICE and Border Patrol officers are friendly at the border, within the U.S., or even have the time or resources to create an environment in which children would recount their stories. In fact, ICE agents are on a quota for the number of individuals they must deport every week, month, and year. It is simply impossible for ICE and Border Patrol officers to be able to make the determination for every person entering and due process be afforded without going through the Immigration courts. And, for children, it is impossible for this determination to be made without representation because they are simply not capable, due to their legal disability of being minors and lacking capacity, to be able to answer the necessary questions or to know the information necessary to navigate the Immigration system.
In answer to the Facebook comment that we do not allow children to get away with stealing and murdering just because they are children. No, our judicial system provides punishments but it also provides for protections to ensure that those children's due process rights are upheld.
As I understand it, what the Obama administration is requesting is not as much appointing and paying private attorneys, although that would certainly go great lengths in solving many of the issues. Most of the funding would go to nonprofit organizations who would oversee volunteers who take on the cases pro bono. The money would fund technology and basic supplies needed to do the casework and would possibly offer some student loan forgiveness to encourage more people to volunteer. The problem with our judicial system as a whole, not just Immigration, is that the cost of getting a law degree and maintaining a law license has increased 20 to 30 fold in the past 20 years. As such, attorneys have been required to raise their fees and take on fewer pro bono or reduced rate cases in order to cover their expenses. Also, attorneys are limited in their ability to volunteer hours to oversee law students or other persons who desire to work through a nonprofit that offers representation. This particularly hits your disadvantaged groups, such as the lower end of the socio-economic scale, handicapped, minors, etc... who may not have any other recourse for seeking representation, eliminating from our country the long-held motto that there is liberty and justice for all and is closing off the courts to these disadvantaged groups. It is a proven fact that those with money and means have a much higher success rate in all courts, which is driving our nation to be a nation of, by, and for the wealthy and is contrary to everything that our founders set forth as our American way of life.
As I understand it, what the Obama administration is requesting is not as much appointing and paying private attorneys, although that would certainly go great lengths in solving many of the issues. Most of the funding would go to nonprofit organizations who would oversee volunteers who take on the cases pro bono. The money would fund technology and basic supplies needed to do the casework and would possibly offer some student loan forgiveness to encourage more people to volunteer. The problem with our judicial system as a whole, not just Immigration, is that the cost of getting a law degree and maintaining a law license has increased 20 to 30 fold in the past 20 years. As such, attorneys have been required to raise their fees and take on fewer pro bono or reduced rate cases in order to cover their expenses. Also, attorneys are limited in their ability to volunteer hours to oversee law students or other persons who desire to work through a nonprofit that offers representation. This particularly hits your disadvantaged groups, such as the lower end of the socio-economic scale, handicapped, minors, etc... who may not have any other recourse for seeking representation, eliminating from our country the long-held motto that there is liberty and justice for all and is closing off the courts to these disadvantaged groups. It is a proven fact that those with money and means have a much higher success rate in all courts, which is driving our nation to be a nation of, by, and for the wealthy and is contrary to everything that our founders set forth as our American way of life.
I ask those that feel they must weigh in on the Immigration issue to stop solely listening to the politicians and news media who provide limited information. I also ask our politicians to begin listening to those who are most familiar with the Immigration system to design Immigration reform that actually addresses the problems rather than only advancing political agendas. Meaningful reform can only happen when real, accurate information is provided and when an attitude that there should be no rights is departed from. Our founders fought for the principle that all men are created equal. Almost every major conflict our nation has ever been a part of has been to protect the rights of people around the world. The fight for civil rights came about because of the misguided perception that certain persons were not equal and therefore were not entitled to Constitutional rights. Because of the courage of civil rights leaders, due process rights, among other rights, where finally afforded in the manner our Founders intended, equal justice for all. We say that we have emerged from those days, yet here we are once again. It is a slippery slope, and one that we should not enter lightly because the consequences are severe; not only to those too whom we deny rights but to ourselves as well.
[1] Salgado-Diaz
v. Gonzales, 395 F.3d 1158, 1162 (9th Cir. 2005); see also Pangilinan v. Holder, 568 F.3d
708, 709 (9th Cir. 2009) (order); Campos-Sanchez
v. INS, 164 F.3d 448, 450 (9th Cir. 1999) (“The Fifth Amendment guarantees
due process in deportation proceedings.”).
