Reforming the Immigration Court System

Please note: This blog post was originally published on Sunday, February 21, 2010.

On February 2, a report entitled “Reforming the Immigration System: Proposals to Promote Independence, Fairness, Efficiency, and Professionalism in the Adjudication of Removal Cases” was presented to the American Bar Association’s Commission on Immigration. The report, which is almost 500-pages long, was prepared on a pro bono basis by the law firm of Arnold and Porter. Those who are interested may want to read the 78-page Executive Summary of the report.

This is the first of several articles regarding the various recommendations contained in the report.

The ABA’s News Release points out that DHS “law enforcement and other officers, rather than government attorneys, initiate immigration court proceedings”.

I remember that when I served as an INS Trial Attorney 30 years ago, deportation officers, not attorneys, prepared Orders to Show Cause, as NTAs were called then.

This is the equivalent of police officers, rather than the District Attorneys’ Office, initiating criminal court proceedings. Police officers are trained to apprehend criminals, not to determine whether they meet the legal standards for prosecution.

Why is it important that government attorneys rather than DHS officers initiate removal proceedings?

In this case, an example is worth a thousand words.

We currently represent a woman in removal proceedings. The woman was born in Mexico. When she was a teenager, she was petitioned for a green card by her U.S. citizen step-father. Although she was only 16 at the time, she was given the third-degree by immigration officers as to whether she was married or had any children. Satisfied that the answer to both of these questions was negative, she was told to go home, and wait for a decision to be made on her application for permanent residence.

Over two years later, she received a letter in the mail informing her that her fingerprints had expired and that she needed to retake her fingerprints. She wrote back asking for a postponement because she was expecting a baby. Her appointment was rescheduled and, a few months later, the INS sent her a green card in the mail. No one bothered to inquire as to her marital status. Her alien registration card indicates that she was granted permanent residence as an immediate relative of a U.S. citizen.

Fast forward five years. She was excited to finally be able to apply to become a citizen of the United States. After all, her husband, who she married before she got her green card, was now a naturalized U.S. citizen and a Staff Sergeant in the U.S. Air Force. He had served two tours of duty in Iraq. Also, their two children were both U.S. citizens. She was the only one in the family who was not a U.S. citizen.

On the day of her naturalization interview, the DHS examiner told her that her application was denied. Not only that, but she was placed in removal proceedings. She was shocked, and so was her husband. They immediately called our office and scheduled an appointment to see me.

As I read her NTA, the document that initiated her removal proceedings, I could not believe my eyes. The NTA accused her of obtaining her green card by fraud!

What was the fraud that the officer was alleging? That since she was married when the DHS mailed her a green card as an immediate relative, she should be deported. Never mind that the INS should never have issued her a green card in the first place. The mistake was clearly a screw-up on the government’s part, not the result of fraud.

Long story short, we went over the head of the officer who issued the NTA and persuaded the government to withdraw the fraud charge.

However, this demonstrates why government attorneys, who are familiar with the immigration laws and the definition of fraud, should be the ones to issue NTAs, rather than DHS officers, who have no legal training and who may see fraud where none exists.