Immigration reform: Requests to separate immigration courts and judges from the Justice Department

The United States Department of Justice (DOJ), also known as the Justice Department, is the U.S. federal executive department responsible for the enforcement of the law and administration of justice. The Department is led by the Attorney General, who is nominated by the President and confirmed by the Senate and is a member of the Cabinet. The current Attorney General is Eric Holder.

The United States Department of Justice (DOJ), also known as the Justice Department, is the U.S. federal executive department responsible for the enforcement of the law and administration of justice. The Department is led by the Attorney General, who is nominated by the President and confirmed by the Senate and is a member of the Cabinet. The current Attorney General is Eric Holder.

Immigration Judges and courts are different from most courts because the legal process in immigration is not a function of the Judicial Branch of government, but rather it is part of the Executive Branch, reporting to the U.S. Department of Justice (“DOJ”). According to leaders from the National Association of Immigration Judges (“NAIJ”), this is a significant problem and impediment to doing real justice. As employees of the DOJ Executive Office for Immigration Review, the Immigration Judges who also act as the attorney for the DOJ and must follow orders and policy from the Executive Branch. Recently when President Obama directed Immigration Judges to start hearing newly arrived immigrant children’s cases, solely before their other pending cases, some of those judges started to speak up and state their objections.

Judge Dana Leigh Marks is the president of NAJI and she is speaking out, calling for the separation of immigration courts from the DOJ. In several published articles, Marks highlights the irony in the system where judges and courts are funded and overseen by the agency established to implement and prosecute immigration laws. Marks recently stated, “Our goal is to serve as a neutral court, but paradoxically we are housed in a law enforcement agency.[i]” Further, she highlighted, “There is no other court system in which the government would be allowed to order a total overhaul of the docket, placing particular cases at the top.[ii]

Congress has yet to move forward on comprehensive immigration reform, but if and when they do, these Immigration Judges want separate immigration courts.

The organized union for Immigration Judges was represented at a recent National Press Club event, in part, by Denise Noonan Slavin, the union’s executive vice president. Salvin spoke with Judge Marks and rhetorically asked, “If your gas tank has a leak do you keep filling it up with gas or do you fix it first?[iii]

Not only is the gas tank leaking, as you might say, the line for gas is out the door; many say the underfunding of the current immigration courts is to blame for a massive backlog of 375,000 immigration cases, seen by 227 field judges who hear cases.[iv] Judge Marks is one of those judges and she alone has over 2,400 pending cases. The next case set on Judge Marks’ calendar might be heard three and a half years from its filing date.[v]

Article I of the U.S. Constitution provides for the establishment of courts.

Like the court systems for tax and bankruptcy, immigration courts, independent of the DOJ, could be established under Article I of the Constitution.[vi] While the cost of establishing a new court structure under the Judicial Branch could be significant, the savings of time and resources could make it well worth the investment. Judge Marks suggests, “This would free them (judges) from any control or influence by the Attorney General or Department of Homeland Security.[vii]

Whether comprehensive immigration reform would include new immigration courts is unknown and there have not yet been significant responses from members of Congress on this subject. Meanwhile, it is likely certain that advocates for sensible immigration reform, like Judge Marks, will continue pushing the case to remove the immigration courts and judges from the Executive Branch.

KiKi M. Mosley is an immigration attorney who represents immigration clients and experiences the backlog of cases and troubled system first-hand, and works diligently to share ideas for system reform. Attorney KiKi M. Mosley is licensed to practice law by the State of Illinois and Louisiana. She is skilled and experienced in complex immigration law issues. For more information, please visit www.KiKisLaw.com, and do not forget to “Like” the firm on Facebook and “Follow” on Twitter. You can also review Attorney Mosley’s endorsements on her Avvo profile.

[i] PBS News hour, the Rundown, Immigration Judges’ union seeks independent court system, by Alicia Caldwell, Associated Press, Aug. 27, 2014.

[ii][ii] See PBS article at FNi

[iii] See PBS article at FNi

[iv] AZcentral, 12 News, Immigration Judges urge removal from Justice jurisdiction, by Erin Kelly, Gannet Washington Bureau, Aug. 27, 201.

[v] See AZCentral article at FNiv

[vi] Power…to constitute tribunals inferior to the Supreme Court. Article I U.S. Constitution.

[vii] The Hill, Let Immigration Judges be judges, by Dana Leigh Marks, May 9, 2013.

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Executive orders in immigration: President Obama to follow past presidents in executive action

A history of executive orders.

A history of executive orders.

President Obama, backed into a corner by Congress, must fix immigration with a pen and phone. The New York Times reports that the President, behind closed doors, is working on executive actions to overhaul immigration. An arduous task at best, the President has much work to do, meeting with lobbyists and members of interest groups and advisors. It is noteworthy that the executive branch of government may use executive orders to accomplish goals, despite the lack of an organized system for executive action. Congress, however, is by design, the branch of government best structured to conduct hearings, sort information and create laws. Without the meaningful assistance of Congress, President Obama is now expected to follow previous presidents who affected immigration using executive action.[i]

Everyone is affected by systemic problems in U.S. immigration but politics creates a permanent block to progress.

House Democrats want amnesty for individuals seeking asylum and immigration relief. House Republicans want southern border security and an efficient deportation process. With increased awareness of terror groups and rampant criminal action in the streets, many people living in violent and insecure countries are learning how they can come to the U.S., but they don’t know how to navigate the system to come legally, and follow in line with others making a run to U.S. borders. The immigration problems in the U.S. are not getting better and they will likely only grow worse. In the past, U.S. presidents, from both political parties, used executive orders to solve pressing immigration problems.

President Obama, like his predecessors, has executive order options he can use to overhaul immigration.

The way you hear House Republicans attacking and suing President Obama for signing executive orders in once instance, and criticizing him for failing to write immigration reform may be confusing to many. In fact, President Obama has only issued 185 executive orders as of August 5, 2014[ii]; According to Newsweek, his number, “Is Lower Than Any President in 130 Years.[iii]” In a recent report prepared by a political research organization, Executive Actions Speak Louder Than Words[iv], other recent presidents signed many more orders than President Obama:

  1. Barack Obama – 185 executive orders between 2009 and 2014;
  2. George W. Bush – 291 executive orders during two terms in office;
  3. Bill Clinton – 364 executive orders during two terms in office;
  4. George H.W. Bush – 166 executive orders during one term in office;
  5. Ronald Reagan – 381 executive orders during two terms in office;
  6. Jimmy Carter – 320 executive orders during one term in office.

Past presidents, including Reagan and both Bush presidents used executive action to address immigration.

Important executive orders have been used in recent history to address compelling civil rights problems. While so many people are quick to judge a current president’s record, it is easy to forget that this is not a new method to cure immigration problems in the U.S. Here is a summary of some notable executive actions in immigration, taken by recent U.S. presidents[v]:

  • 1987 – President Reagan eased immigration standards for 200,000 Nicaraguan exiles in the U.S.;
  • 1990 – President Bush Sr. protected Chinese students fearing persecution if sent back to China;
  • 1991 – President Bush Sr. delayed deportation for hundreds of Kuwaiti residents for four years;
  • 1992 – President Bush Sr. made repatriation “automatic” for Haitians coming to the U.S., including those with “potentially valid claim to refugee status”;
  • 1993 – President Clinton granted 18-month extension of the Deferred Enforcement Departure Program, giving 200,000 Salvadorans the right to legally live and work in the U.S.;
  • 1997 – President Clinton again used executive authority to give exemptions to up to 20,000 Haitians for an additional year, from strict new deportation rules;
  • 1998 – President Clinton temporarily suspended deportation to hurricane-ravaged countries;
  • 2001 – President Bush Jr. gave temporary protected status to up to 150,000 Salvadorans;
  • 2002 – President Bush Jr. expedited naturalization for green card holders enlisted in the military.

Obviously, the use of executive actions by U.S. presidents, in immigration, is a common practice. Despite House Representatives, who refuse to take meaningful action in immigration reform, the President can and apparently will sign one or a series of executive orders to address current immigration crises, including some 57,000 recent migrant individuals fleeing from Central America.

KiKi M. Mosley keeps pace with the immigration roller coaster on Capitol Hill because real people need immigration reform today.

Attorney KiKi M. Mosley is licensed to practice law by the State of Illinois and Louisiana. She is skilled and experienced in complex immigration law issues including DACA and related options for children arriving in the U.S. For more information about the law firm, please visit www.KiKisLaw.com, and do not forget to “Like” the firm on Facebook and “Follow” on Twitter. You can also review Attorney Mosley’s endorsements on her Avvo profile.

[i] New York Times, Behind Closed Doors, Obama Crafts Executive Actions, by Julie Hirschfeld Davis, Aug. 18, 2014.

[ii] Federal Register, Executive Orders website.

[iii] Newsweek, An Embarrassing Hole in Boehner’s Plan to Sue ‘King’ Obama, by Leah McGrath Goodman, Jun. 27, 2014.

[iv] American Bridge, Executive Actions Speak Louder Than Words, Aug. 8, 2014.

[v] See American Bridge report (HNiv) for specific article sources.

More than 60,000 unaccompanied minors need immigration lawyers and volunteer organizations need pro bono help

There are resources for immigrants seeking free legal counsel and for attorneys who want to volunteer their time on immigration cases.

There are resources for immigrants seeking free legal counsel and for attorneys who want to volunteer their time on immigration cases.

Congress who failed to take serious action to address an epic immigration crisis left 60,000 unaccompanied minors in the dust. Meanwhile, there are plenty of people with legal talent and non-profits with experience and commitment to volunteer initiatives to help children in need. Advocates for the children who fled from violence and instability in their home countries are working hard to train talented attorneys in immigration law, which is a large undertaking when immigration law and policy is complex and not intuitive.

Video: Vice President Joe Biden offers his candid comments about the need for more pro bono immigration lawyers.

The problems with unaccompanied child immigrants start when the children who do not know the law, have no idea how to ask for help. Many of these children might be able to qualify for asylum and could obtain relief to stay in the U.S., but the nine-page application is only available in English and without learning how to seek asylum in the first place, most remain helpless.

Instead of getting the help they need, the children will likely end up with denied asylum applications and face a federal prosecutor seeking deportation in immigration court. This presents a nearly impossible situation, says one immigration attorney quoted in a recent article about asylum for unaccompanied minors, “If you have an unrepresented child, their actual ability to do any of this as a pro se from my perspective is zero.[i]

To learn more about the challenges unaccompanied minors face in navigating our courts, read our article, Thousands of unaccompanied minor immigrant children need comprehensive immigration reform.

In response to the children’s crisis, bar associations and legal aid groups are eager to meet the children’s’ need, “”Every single immigration lawyers’ bar association across the country is scrambling to try to find people to even take the first little tiny hearing for these cases,” said Laura Lichter, a Colorado-based immigration attorney and the former president of the American Immigration Lawyers Association.[ii]

There are resources for immigrants seeking free legal counsel and for attorneys who want to volunteer their time on immigration cases.

There are several places attorneys can volunteer their time on pro bono immigration cases. The American Immigration Lawyers Association, (“AILA”) has pro bono programs[iii] and an immigration lawyer search tool available for members of the public looking for an immigration lawyer to volunteer some of their time to pro bono cases. Another fine organization, the National Immigrant Justice Center serves Chicago’s immigrant communities and they have pro bono resources and information about training for lawyers and educational opportunities.

Chicago-based immigration attorney, KiKi M. Mosley dedicates at least 10 percent of her law practice to pro bono cases. She can also direct people interested in more information, to the right people and organizations offering aid.

Attorney KiKi M. Mosley is licensed to practice law by the State of Illinois and Louisiana. She is skilled and experienced in complex immigration law issues including DACA and related options for children arriving in the U.S. For more information about the law firm, please visit www.KiKisLaw.com, and do not forget to “Like” the firm on Facebook and “Follow” on Twitter. You can also review Attorney Mosley’s endorsements on her Avvo profile.

[i] National Journal, Here’s How Hard It Is for Unaccompanied Minors to Get Asylum. By Rachel Roubein, Jul. 15, 2014.

[ii] CBS News, For unaccompanied immigrant children, a shortage of lawyers. By Rebecca Kaplan, Aug. 7, 2014.

[iii] American Immigration Lawyers Association website, Pro Bono.

Ninth hour congressional action by House Representatives: A good faith effort or a show play leaving President Obama to use his executive powers?

Ninth hour congressional action by House Representatives

Ninth hour congressional action by House Representatives

House Speaker John Boehner (R-Ohio) wants President Obama to use executive orders[i] to fix immigration issues, and on the other hand, endorses a lawsuit against him for several of his past issued executive orders including the orders regarding Deferred Action for Childhood Arrivals (“DACA”). Note that DACA does not give benefit to current arrivals; in order to qualify for DACA program, an individual needed to have been on U.S. soil before 2007. Nevertheless, House Republicans blame DACA for enticing new arriving immigrants.

In his press statement last Thursday about border security and House Republican proposals for reform, Speaker Boehner stated, “This situation shows the intense concern within our conference – and among the American people – about the need to ensure the security of our borders and the president’s refusal to faithfully execute our laws. There are numerous steps the president can and should be taking right now.[ii]

While Speaker Boehner speaks critically of President Obama, House Republicans have their own version of immigration reform legislation that does not sit well with President Obama’s administration.

Note that this statement by Speaker Boehner was issued with regards to H.R. 5230, the border supplemental legislation, proposed by House Republican Rep. Rogers (R-Kentucky), which as proposed, would provide additional money for international operations of U.S. Immigration and Customs Enforcement (“ICE”) to combat the problem of security threats from organized crime networks (drug cartels) and also to reimburse local communities for the cost of housing and educating unaccompanied minors. Of course, there are elements of H.R. 5230 that are more favored by the Republican ideals of addressing immigration.

President Obama would likely be advised to veto this legislation if it moved forward according to recent statement. In response to the introduction of H.R. 5230, the Executive Office of the President’s Office of Management and Budget stated in a July 30, 2014, statement, “Republicans released patchwork legislation that will only put more arbitrary and unrealistic demands on an already broken system. H.R. 5230 could make the situation worse, not better. By setting arbitrary timelines for the processing of cases, this bill could create backlogs that could ultimately shift resources away from priority public safety goals, like deporting known criminals.[iii]

The House Republicans offer a list of, “Immediate Steps the President Could Take to Start Solving the Border Crisis,” published on the House GOP website[iv]:

  • Send the strong, public message that those who enter illegally will be returned;
  • Stop abusing his prosecutorial discretion authority;
  • Stop releasing convicted criminal aliens from detention;
  • Crack down on fraudulent asylum claims;
  • Implement tougher standards for “credible fear” claims;
  • Detain asylum seekers until their claims are proved valid;
  • Restore agreements with local law enforcement agencies to enforce immigration laws;
  • Employ diplomatic resources to stop the border crisis;
  • Give Border Patrol agents access to federal lands.

While there are some steps on the GOP list that could be accomplished by President Obama issuing executive orders and directing DHS and ICE to act and implement new policies. The steps on this list may also be “easier said than done.”

Current immigration clients and their cases can be seriously impacted by the immigration system when it does not move along in an orderly fashion. Wait times are already many years in certain instances and the proposed legislation by the House Republicans could hurt many immigrants who are not part of any border surge, people who arrived on U.S. soil under much different circumstances and conditions. Attorney KiKi M. Mosley works diligently to follow the latest news on immigration reform and share valuable information to help readers keep up with the volatile process of fixing our broken immigration system.

Attorney KiKi M. Mosley is licensed to practice law by the State of Illinois and Louisiana. She is skilled and experienced in complex immigration law issues including DACA and related options for children arriving in the U.S. For more information about the law firm, please visit www.KiKisLaw.com, and do not forget to “Like” the firm on Facebook and “Follow” on Twitter. You can also review Attorney Mosley’s endorsements on her Avvo profile.

[i] Executive orders are enforceable law and are subject to judicial review, and if the executive order is not supported by the Constitution or by statute. When executive orders should be used, versus action voted by congress to be written in an executive order as delegated legislation, is a debatable political question influenced by policy and a variety of factors.

[ii] U.S. Speaker of the House John Boehner: Press Release, Statement by House GOP Leaders on Border Bill, Jul. 31, 2014, Speaker Boehner’s Press Office.

[iii] Executive Office of the President: Office of Management and Budget, Statement of Administration Policy, H.R. 5230 – Making Supplemental Appropriations for the Fiscal Year Ending September 30, 2014, and for Other Purposes. Jul. 30, 2014.

[iv] GOP.gov – House Republicans: Immediate Steps the President Could Take to Start Solving the Border Crisis, Courtesy of the House Judiciary Committee.