A big part of the Immigration justice in America is the immigration trials.
How They Work
There are many reasons people end up in immigration court. It may be that they came to America to avoid prosecution in their home country or they are trying to avoid deportation from America. Or, they are merely trying to become a permanent resident of the United States. In any of these circumstances their case must be heard in an immigration court of law.
There are over 58 immigration courts throughout the United States, with over 330 immigration judges presiding over them. On average, a judge could be faced with approximately 1000 active cases. Immigration court budgets are far more restricted than federal district court budgets, and immigration courts do not have as much administrative support. The immigration case load is more than double what the federal district court caseload is. It creates a huge backlog in the immigration court system, and it can take years for some cases to be completed.
How Do Immigration Trials Work Compare to Criminal Trials
Even though immigration trials look similar to criminal trials, they have different constitutional protections. Immigrants do not qualify for defense attorneys that are appointed by the court. They either have to hire a lawyer, find a lawyer that will take on their case pro bono, or attend court without legal counsel. Out of all the immigrants who attended immigration court, only approximately 37% of them have a defense lawyer. About 86% of immigrants who have been mandatorily detained in jail during their immigration hearings appear in immigration court facing criminal charges do not have legal representation. Quite often, when appearing in the courtroom, the accused immigrant is wearing shackles and a jumpsuit. Many other constitutional safeguards are absent in immigration trials. In an immigration criminal trial, the judge’s duties are directed by the attorney general; however, the prosecutor is under the direction of Immigration and Customs enforcement. It can result in an overlap of political priorities. The difference in a regular federal trial is the fact that the judge is an independent member of the American judiciary, which falls under a different area of the government.
Appealing a Judge’s Deportation Order
The Board of Immigration Appeals process is open to immigrants who want to appeal a judge’s deportation order. The Board of Immigration is the Department of Justice Agency based in Virginia. Only approximately 9% of immigrants choose to appeal the judge’s order. The Board has under 25 employees, some full time, some part-time. They decide individually or as a panel on approximately 30,000 appeal cases annually. The Board can affirm without opinion, which means they can agree with the deportation order the judge issued without an explanation. It helps to expedite many of the deportation appeals. The Board of Immigration It has the ability to refer a deportation case to the attorney general; however, this seldom happens. The attorney general can overrule a board decision. The attorney general also dictates what kinds of appeals the board can rule on and can remove members of the board at any time.
Appealing a Board of Immigration Decision to the U.S. Courts of Appeals Federal Court
The U.S. Federal Courts of Appeals is one step below the Supreme Court of Justice. This type of appeal is costly, and most immigrants are not able to afford to take this route. Only approximately 2% of the over 300,000 immigration cases heard annually are taken to the federal court appeals process. Nationwide on average, only about 8% of the appeals are granted. However, if the federal appeals process takes too long, the deportation order stays in effect, and they can be deported before the outcome of the federal appeals process as they are no longer protected once it reaches this stage of appeal. On average, half of the Federal appeal cases are still pending when they are deported.
Immigration Courts Lack American Legal System Standards
The American legal system is based on principles that all people are entitled to a meaningful opportunity to be heard in a court of law and to due process. However, the immigration courts fall short of this standard. The fact that immigrants do not have the right to a government-appointed legal representation has a direct impact on the outcome of deportation hearings. Deportation falls under civil issues as opposed to criminal matters of the courts. Therefore non-residents are not constitutionally protected under the Sixth Amendment. However, American residents facing criminal charges are all entitled to legal representation, even if they can afford to hire one.
Immigrants that have been detained and are facing criminal charges have a hard time trying to find legal representation while they are in jail. It can be seen as unjust by immigrants as in every single immigration court case, and the U.S. government always has trained legal counsel. This lack of legal representation may result in a profound impact on the immigrant receiving a fair trial. It is also very common that immigrants do not understand the legality of the immigration court processes.
Immigration legal representation rates vary immensely from jurisdiction to jurisdiction. Immigrants who had immigration court hearings in small cities had a far more difficult time in retaining legal counsel than those who had hearings in large cities. Mexican immigrants were treated differently than other nationalities of immigrants. Mexican detention rates were approximately 78%, and their representation rate was only 21%. Mexicans faced the highest detention rates and the lowest legal representation rates. While Chinese immigrants had the lowest detention rates at approximately 4% and a 92% representation rate, which is the highest. It is a proven fact that immigrants that have legal representation have a much better experience through every stage of the immigration court process.
For immigrants in the United States to have a fair immigration trial, the ability to seek legal representation needs to change. When immigrants migrate to the United States, they are subject to the same laws as American citizens and, therefore, should have the same constitutional rights to legal representation.