Statement to the Senate Committee on the Judiciary
Mr. Chairman and members of the Committee, thank you for the opportunity to submit a statement for today's hearing on improving efficiency and ensuring justice in the immigration court system.
Human Rights Watch is an independent organization dedicated to promoting and protecting human rights in some 90 countries around the globe. We work to secure increased recognition of and respect for internationally recognized human rights in the United States, focusing on issues arising from excessive punishment and detention, insufficient access to due process, and discrimination.
Human Rights Watch welcomes the steps taken by the Executive Office for Immigration Review (EOIR) in recent years to improve access to immigration courts, including its expansion of the Legal Orientation and Pro Bono Program (LOP). We believe, however, that more steps should be taken to achieve the goal of fair and efficient treatment of all cases handled by the immigration courts. We know that this is a goal we share with EOIR as well as with members of this Committee.
I. The Backlog of Immigration Court Cases Violates Rights
The Obama administration's stepped-up enforcement of immigration laws has resulted in a significant increase in the number of immigration proceedings, but without a concomitant increase in funding for more EOIR courtrooms, judges, or other necessary personnel, it has compounded the backlog of pending cases. The Transactional Records Access Clearinghouse has recently reported the number of pending cases before immigration courts is at an all-time high, at over 267,000 pending cases as of December 2010. As of February 2011 the average wait time for immigration cases was 467 days. There are valid inefficiency concerns with such extraordinary backlogs, especially at a time of fiscal downturn in the United States. A related concern is how these backlogs harm the fundamental human rights of immigrants. Human Rights Watch would like to provide you with three such examples.
First, and most fundamentally, backlogs mean that non-citizens will face unnecessary delays in the resolution of their cases. The International Covenant on Civil and Political Rights (ICCPR), to which the United States is party, provides that everyone has the right to liberty and must have an opportunity to challenge deprivation of liberty before a court. The Human Rights Committee, which monitors compliance with the ICCPR, states that this right applies to all deprivations of liberty, including immigration detention. Legal proceedings should not involve unnecessary delay in their final resolution. While this standard is geared towards criminal defendants who face deprivation of liberty at a trial, they are relevant to immigration proceedings where a person is detained.
Second, many detained immigrants face longer periods of detention because of EOIR backlogs. The American Immigration Lawyers Association reported in 2009 that detained non-citizens in the New York area who were eligible for some sort of immigration remedy were having cases scheduled seven to eight months into the future. Many of these non-citizens remain in detention during these extended periods due to the severe and expansive mandatory detention laws passed in the US in the mid-1990s, which in turn have a deleterious effect on asylum seekers and other vulnerable groups, such as torture victims.
These mandatory detention laws require the detention of many asylum seekers. The United Nations High Commissioner on Refugees in 1999 issued Guidelines on the Detention of Asylum Seekers stating that "[a]s a general rule, asylum seekers should not be detained," and that "the use of detention is, in many instances, contrary to the norms and principles of international law." Mandatory detention laws also require the detention of lawful permanent residents convicted of certain crimes, even if the crimes were not of a violent nature and the lawful permanent resident has strong family and community ties and is neither a flight risk nor dangerous. In discussing immigration detention, the UN Human Rights Committee has stated that detention is arbitrary "if it is not necessary in all the circumstances of the case, for example to prevent flight or interference with evidence: the element of proportionality becomes relevant in this context." Immigration detention should therefore only be used in those cases in which legitimate government interests cannot be fulfilled through any other means. The detention, additionally, should be as limited as possible, and not arbitrarily extended due to a bureaucratic backlog in cases.
Third, non-detained asylum seekers whose cases are pending in backlogged immigration courts are often faced with the substantial hardship of being barred from work authorization for months or years. Because asylum seekers, like other aliens, do not have the right to court-appointed legal representation, and because they are barred from work authorization from the moment they apply for asylum for the first 180 days, unless granted asylum sooner, they are compelled in most cases to seek out pro bono attorneys or to proceed pro se. It is not uncommon, therefore, that pro bono attorneys seek continuances because they do not have adequate time to prepare a case. When such continuances are filed, the 180-day clock stops ticking. While the continuances are pending, and immigration courts struggle to reschedule the necessary hearings in the midst of the case backlog, asylum seekers are barred from working for very long periods of time, which forces them either not to be able to meet their basic needs, placing an onerous burden on social services or community organizations to support them, or forces them to work illegally in highly exploitative situations. This, in effect, becomes a deterrent to their right to seek asylum.
- Congress should reexamine the effectiveness and cost of mandatory detention laws.
- Until EOIR backlogs can be eliminated or reduced, Congress should eliminate or decrease the duration of the bar on work authorization for asylum seekers, as well as the clock-stopping rule.
II. Fair Treatment of Asylum Seekers and Other Immigrants Will Reduce Backlogs
Part of the solution to backlogs lies in better procedures to ensure fundamental fairness in immigration courts. Human Rights Watch has reported on two distinct factors that have added to the EOIR backlog, but that also threaten immigrants' rights to fair treatment in immigration courts. First, US law allows for practically unfettered transfers of immigrant detainees between detention facilities across the country. Such relocations interrupt court proceedings and delay case resolutions, inevitably adding to the backlog in immigration cases. They also separate detainees from their attorneys, witnesses, families, and support networks. Second, the US fails to provide basic safeguards to vulnerable non-citizens in immigration proceedings, particularly persons with mental disabilities. These vulnerable non-citizens are often unable to participate meaningfully in their proceedings, which leads to significant delays.
Congress should work to address these two systemic failures in the immigration system. By doing so, Congress will be both protecting the human rights of non-citizens in immigration proceedings and, at the same time, helping to reduce the considerable backlog in the immigration court system.
Detainee Transfers Impede EOIR's Ability to Hear Cases Expeditiously
Immigration and Customs Enforcement (ICE) oversees the nation's largest system of incarceration-over 300 different facilities, from small local jails to large dedicated facilities run by ICE. ICE has almost unlimited power to transfer detainees between facilities, and the agency does not shy away from doing so: in the ten years between 1999 and 2008, over 1.4 million detainee transfers took place. While certain detainee transfers may be necessary, ICE has declined to set reasonable limits to its transfer power. Interference caused by a poorly timed and careless transfer serves to delay court proceedings and likely contributes to the backlog.
Human Rights Watch has documented numerous situations where transfers directly interfered with the non-citizen's ability to access counsel or to retain counsel once transferred. Detainees are often transferred hundreds or thousands of miles away from their families and home communities before they have been able to secure legal representation. Despite laudable efforts to implement LOP programs in some of these remote locations, almost invariably there are fewer prospects for finding an attorney in the remote locations to which detainees are transferred. Detainees must therefore go through the entire complex process of defending their rights in immigration court without legal counsel. One detainee told Human Rights Watch:
"In New York when I was detained, I was about to get an attorney through one of the churches, but that went away once they sent me here to New Mexico.... All my evidence and stuff that I need is right there in New York. I've been trying to get all my case information from New York ... writing to ICE to get my records. But they won't give me my records; they haven't given me nothing. I'm just representing myself with no evidence to present."
Transfers make the ongoing task of maintaining an attorney-client relationship much more difficult, and sometimes even sever the relationship completely. An attorney in El Paso told us simply, "it's a regular occurrence that people lose their attorney after transfer." Some detainees lose their attorneys completely after transfer because of changes in the law in the new jurisdiction, because logistical challenges make ongoing representation impossible, or because the immigration judges in the new location will not allow their attorneys to appear via telephone or video and the detainee cannot afford to pay for an attorney to travel to the new location. Losing an attorney forces a detainee to find other counsel or to resort to representing himself in immigration proceedings. Either way, the transfer ensures that proceedings will be delayed as the detainee and the court must grapple with the lack of representation.
In addition, although most detained non-citizens have the right to a timely "bond hearing" - a hearing examining the lawfulness of detention (a right protected under US law as well as human rights law) - our research shows that detainees are transferred without taking into account their scheduled bond hearings, which burdens immigration courts and creates duplicative work. One immigration attorney we interviewed told us: "We've ... had cases where people are given a bond in city A and before the family can even post the bond in city A, they are transferred to El Paso - and then find that their bond is cancelled by the immigration judge down here." In such a situation, the decision in the original bond hearing becomes a nullity and a waste of court resources.
Finally, an immigrant has a right, protected under both international human rights and US law, to present a defense to removal. The long-distance and multiple transfers documented by Human Rights Watch often make it impossible for non-citizens to produce evidence or witnesses relevant to their defense, which slows down court proceedings and contributes to the backlog. A legal permanent resident originally from the Dominican Republic, who had been living in Philadelphia but was transferred to Texas said,
"I had to call to try to get the police records myself. It took a lot of time. The judge got mad that I kept asking for more time. But eventually they arrived. I tried to put on the case myself."
If a transferred immigrant wants to try to return to the original court to be closer to his or her attorney, evidence, and witnesses, the non-citizen must file for a change of venue, an additional proceeding that can add to the court backlog. One attorney told Human Rights Watch that she had to file a "phone book" worth of documents to make a successful case to change venue.
These are just a few examples of how transfers can interfere with court proceedings, leading to delays and additional court hearings. To prevent this unnecessary use of scarce court resources, ICE should be prohibited from transferring any immigration detainee who is represented by counsel, or whose rights would otherwise be hindered by a transfer. Fair treatment at the hands of immigration courts is often synonymous with efficient treatment and reduction in the immigration court backlog.
- In order to reduce court backlogs, Congress should place reasonable checks on ICE's transfer authority.
- Until transfers are reduced or eliminated, EOIR should issue guidance for immigration judges that encourages changes of venue to locations (and discourages changes of venue away from locations) where the detainee has counsel, family members, community ties, or other key witnesses, unless the detainee so requests or consents, or unless other justifications exist for such a motion apart from ICE agency convenience.
- EOIR should issue guidance for immigration judges that gives priority to in-person testimony, but when such testimony is not possible, requires judges to allow video or telephonic appearances by family members and other key witnesses. Any decision to disallow these types of appearances should be noted on the record along with the reason for the decision.
- Until EOIR backlogs can be eliminated or reduced, ICE and EOIR should prioritize efficient handling of custody reviews and bond hearings, respectively.
Lack of Counsel for Vulnerable Populations Contributes to the Backlog
Despite the proven effectiveness of LOP programs, and efficiencies when immigrants are represented by counsel, the refusal of the Department of Justice to provide counsel to vulnerable populations in immigration proceedings, particularly persons with mental disabilities, violates immigrants' rights to a fair hearing, leads to unnecessary delays, and adds to the courts' backlog.
The ICCPR provides for the right to legal representation during deportation. Moreover, UN principles governing all detainees state that a detainee should receive legal assistance if he or she is unable to afford a lawyer. Recognizing that individuals with mental disabilities may need additional support and assistance in court, the Convention on the Rights of Persons with Disabilities (CRPD) - which the United States signed in 2009 but has not ratified - provides for the right to legal assistance so that individuals with mental disabilities can participate in proceedings concerning their rights. The CRPD requires that governments "ensure effective access to justice for persons with disabilities ... including through the provision of procedural and age-appropriate accommodations" and further "take appropriate measures to provide access by persons with disabilities to the support they may require in exercising their legal capacity."
The US immigration court system, complicated and adversarial at the best of times, is particularly confusing for people with mental disabilities, who may find it difficult to follow proceedings or provide credible evidence to lawyers and judges without legal representation and adequate support.
Human Rights Watch has documented cases of non-citizens, many of whom were asylum seekers and victims of torture, who did not know what a judge was or what the judge asked; who were delusional or experienced hallucinations; who could not read or write, tell time, name their birth place, or say what day it was; and who did not understand the concept of deportation.
Individuals with mental disabilities interviewed by Human Rights Watch doubted they could explain their claims without a lawyer:
"If I say something stupid or I lose my papers, I just have to be careful with the judge ... I want help in my case. I need help," said Angelo, a 45-year-old legal permanent resident from Mexico with an unspecified mental disability and long history of hospitalization.
Sebastian, a 50-year-old non-citizen from Cuba taking multiple psychotropic medications, told us, "For me court is difficult because I don't understand what they are telling me. The judge asks me questions and I have to answer because I have no one to represent me. I told the judge that I can't represent myself because of my nerves and I need an attorney," he said.
While US immigration law does not afford a right to free legal representation in immigration proceedings, court-appointed lawyers could clearly assist persons with mental disabilities and EOIR to examine their cases more expeditiously. Human Rights Watch has interviewed a number of immigrant detainees in proceedings who spoke of multiple hearings and multiple continuances without resolution that could have been avoided if they were represented.
For example, Fernando C., a legal permanent resident from Mexico who had been in the US for 40 years, and who was unable to remember his date of birth or why he was on medication, said that he had been to see the judge five times since arriving in Port Isabel: "I tell him I can't represent myself and I need help. The judge just gives me extensions to see if I can get a lawyer ... It's hard because I have something wrong with my head, and I have trouble deciding what to tell him."
Christopher A., a non-citizen from Kenya with bipolar disorder who had been detained for ten months when interviewed, said that he had had "four or five" court dates without a lawyer and "desperately" needed one. "The judge said if I don't have a lawyer in April he will just have to make a decision," he said.
The Immigration and Nationality Act provides that if "it is impracticable by reason of an alien's mental incompetency for the alien to be present at the proceeding, the Attorney General shall prescribe safeguards to protect the rights and privileges of the alien." The Attorney General and the Department of Justice have thus far failed to prescribe any such safeguards. By not offering the safeguard of legal representation to this vulnerable group, the Department of Justice is adding to the pending case backlog faced by EOIR.
- Congress should mandate the Department of Justice to appoint counsel to persons with mental disabilities in immigration proceedings. In the meantime, the Attorney General should review whether provision of counsel in certain circumstances would help to facilitate proceedings and reduce delays in the resolution of cases.
- EOIR should develop regulations and guidelines for immigration judges to ensure that the rights of people with mental disabilities are protected in the courtroom, including by:
- Setting a standard for competency to proceed in an immigration hearing;
- Eliminating the regulation that a person who is "mentally incompetent" can be represented by the "custodian," meaning the warden of the facility where he or she is detained; and
- Directing immigration judges to order a mental health evaluation where competency is in question.
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In conclusion, the growing backlog in immigration courts is due to a number of factors that have gone untended over time. Two of these factors, unfettered transfers and refusal to appoint counsel to persons with mental disabilities, are government practices that: 1) violate due process and other basic human rights of non-citizens; 2) result in delayed case resolutions and add to the pending case backlog; and 3) could be easily addressed with regulatory or statutory changes. We urge the Committee to act to ensure that these practices are modified to address the problem of the EOIR backlog and to come into compliance with international human rights standards.
Human Rights Watch believes that the immigration court system, as currently administered, is in the throes of a vicious cycle. Government policies that violate the due process rights of non-citizens in proceedings add to the pending case backlog. The backlog, in turn, creates more due process concerns. Fair treatment of asylum seekers and other immigrants will certainly better protect their fundamental rights, but it will also reduce the costly and inefficient backlogs currently plaguing EOIR and the system of courts it administers.
We thank the Chairman and the Committee for their interest in this matter and for their consideration of our recommendations.
 International Covenant on Civil and Political Rights (ICCPR), adopted December 16, 1966, G.A. Res. 2200A (XXI), 21 U.N. GAOR Supp. (No. 16) at 52, U.N. Doc. A/6316 (1966), 999 U.N.T.S. 171, entered into force March 23, 1976, ratified by the United States on June 8, 1992, Article 9(1) "No one shall be subjected to arbitrary arrest or detention. No one shall be deprived of his liberty except on such grounds and in accordance with such procedure as are established by law;" ICCPR, art. 9(4).
 Human Rights Committee, General Comment No. 8, in Report of the Human Rights Committee, Human Rights Committee, U.N. GAOR, 37th sess., Supp. No. 40, Annex V at 95 (1982).
 UN Human Rights Committee, General Comment no. 13, Equality before the courts and the right to a fair and public hearing by an independent court established by law, HRI/GEN/1/Rev.1 (1984), art. 14.
 EOIR/AILA Liaison Meeting Agenda Questions and Answers, March 19, 2009, http://www.justice.gov/eoir/statspub/eoiraila031909.pdf (accessed May 13, 2011).
 Office of the United Nations High Commissioner for Refugees, "Guidelines on Applicable Criteria and Standards relating to the Detention of Asylum-Seekers," February 1999 (detention of asylum seekers is "inherently undesirable"), http://www.unhcr.org/refworld/pdfid/3c2b3f844.pdf (accessed May 13, 2011).
 A v. Australia Communication No. 560/1993, U.N. Doc. CCPR/C/59/D/560/1993 , April 30, 1997, para.9.2.
 Human Rights Watch, Locked Up Far Away: The Transfer of Immigrants to Remote Detention Centers in the US, December 2, 2009, http://www.hrw.org/en/reports/2009/12/02/locked-far-away-0, p. 5.
 Kevin H. (pseudonym), Otero County Processing Center, Chaparral, New Mexico, February 11, 2009.
 Human Rights Watch, Locked Up Far Away, p. 50.
 Ibid., p. 61.
 ICCPR, art. 13: "An alien lawfully in the territory of a State Party to the present Covenant may be expelled therefrom only in pursuance of a decision reached in accordance with law and shall, except where compelling reasons of national security otherwise require, be allowed to submit the reasons against his expulsion and to have his case reviewed by, and be represented for the purpose before, the competent authority or a person or persons especially designated by the competent authority." See also Immigration and Nationality Act, Sec. 292, 8 USC 1362: "In any removal proceedings before an immigration judge and in any appeal proceedings before the Attorney General from any such removal proceedings, the person concerned shall have the privilege of being represented (at no expense to the Government) by such counsel, authorized to practice in such proceedings, as he shall choose."
 Human Rights Watch interview with Miguel A. (pseudonym), Port Isabel Service Processing Center, Los Fresnos, Texas, April 23, 2008.
 Human Rights Watch, Locked Up Far Away, p. 64.
 ICCPR, art. 13.
 Body of Principles for the Protection of Persons Under Any Form of Detention and Imprisonment, principle 17(2), G.A. Res. 43/173, Annex, U.N. Doc. A/Res/43/173 (Dec. 9, 1988).
 International Convention on the Protection and Promotion of the Rights and Dignity of Persons with Disabilities (CRPD), adopted December 13, 2006, G.A. Res.61/106, U.N. Doc. A/61/49 (2006), entered into force May 3, 2008, art. 13.; Ibid., art. 12.
 Human Rights Watch, Deportation by Default: Mental Disability, Unfair Hearings, and Indefinite Detention in the US Immigration System, July 25, 2010, http://www.hrw.org/en/reports/2010/07/26/deportation-default-0.
 Ibid., p. 53.
 Ibid., p. 53.
 Ibid., p. 54.
 Ibid., p. 74.
 Immigration and Nationality Act, Sec. 240(3), 8 USC 1229a(b)3.