The Invisible Wall: The Institutionalized Barriers Within Immigration Proceedings

“[I]t must be concluded that all persons within the territory of the United States are entitled to the protection guarantied by those amendments, and that even aliens shall not be held to answer for a capital or other infamous crime, unless on a presentment or indictment of a grand jury, nor be deprived of life, liberty, or property without due process of law.”

Wong Wing v. United States (1896)

All people in the United States, regardless of documentation status, are constitutionally guaranteed the right to due process that the 5th and 6th Amendments stipulate. In practice, however, the design of immigration asylum proceedings undermines this right – an issue that goes largely unscrutinized by the press. Alarmingly high numbers of asylum-seekers appear unrepresented before the court. Immigration judges are not members of the judicial branch and work instead for the executive branch thereby effectively depriving them of the political autonomy that Article 3 judges enjoy. Furthermore, courts are understaffed and underfunded resulting in an overall lack of thoroughness in trial proceedings. Asylum-seekers face these institutionalized barriers which, for all practical purposes, render their right to due process insufficient.

The classification of immigration law as civil law discharges the government of the requirement to provide counsel. Asylum cases fall within the bounds of immigration law and can be further stratified into two categories: affirmative and defensive proceedings. The most significant differentiator between these is whether or not the process takes place in a courtroom in front of an immigration judge. Affirmative asylum-seekers are those who apply for asylum while deportation proceedings are not underway – they submit applications and complete interviews in an office setting. Defensive asylum-seekers are those whose affirmative asylum applications have been denied and, therefore, must appear before an immigration judge to present their cases. The lack of representation comes to be an issue in defensive asylum cases where the individual must prove a “history of persecution as a result of race, nationality, religion, membership in a particular group, or political opinion.” Lawyers are hugely advantageous in  helping their clients frame their fear of persecution within the legal jargon that is familiar to immigration judges. The Tahiri Justice Center has stated that representation is “the single most important factor affecting the outcome of an asylum case.” Statistics on case outcomes corroborate this statement: according to data compiled by TRAC, women and children on trial are 14 times more likely to be granted asylum when represented. Only 31% of minors are represented in pending cases. This is significant – when a minor appears before the court sans representation they face 9 to 1 odds of deportation. Overall, the National Immigration Forum notes that asylees are 5 times more likely to obtain asylum with an attorney. These statistics should not be shocking; most US citizens would struggle to win a court case without counsel due to difficulties navigating a complex legal code.

Immigration judges are employed by the Attorney General’s office to “perform such duties as the Attorney General shall prescribe.” This rhetoric highlights the dependence of immigration judges on the Attorney General’s office – but this structure does not provide the same shield from political and social influence that Article 3 judges are granted. The plenary power doctrine states that the legislative and executive branches retain absolute power over immigration law and enforcement, hence why immigration judges are part of the executive rather than the judicial branch. However, the American Bar has recommended that immigration judges be made independent from the Department of Justice thereby protecting them against removal without cause because they are not guaranteed lifetime tenure. Judges need to be able to act impartially and autonomously in order to preserve the integrity of the justice system. The political branches’ control over defensive asylum proceedings reduces the impartiality of the decisions on who is or is not granted asylum. 

Design and illustration by Hannah Lee

Immigration courts are underfunded and understaffed resulting in an average yearly workload of over 1,000 proceedings per immigration judge. Judges cannot be expected to gain a  comprehensive understanding of the individual circumstances of each case with such an overloaded schedule. Oftentimes, judges do not have time to prepare written decisions and opt instead to deliver oral decisions that do not fully elaborate on reasoning. Immigrants and their counsel, if present, are not always provided enough information in the decision to understand the basis for it thus making it difficult for them to appeal or dispute. Judges have also expressed a need for greater resources in the courtroom: 73% of immigration judges have said that improved technological resources would benefit them in their decision-making. 

The first step to mitigate these institutionalized barriers is to recognize and acknowledge them. In 2017, California state legislators allocated $45 million in funding for immigrant legal services from the state budget. This money has been used to support nonprofits that offer pro bono legal help to asylum-seekers and immigrants. The funding was dispersed to pertinent nonprofits across California but, according to regional breakdowns, organizations in Los Angeles and San Francisco received the most. NPR, in an article from 2019, points out that although these large cities may be able to offer asylum-seekers more legal aid than other areas, the high cost of living forces asylees to move to other locations with more affordable housing but fewer resources. Nevertheless, this budgetary allotment indicates an awareness of the need for asylum-seekers to be represented in their cases. The American Bar has acknowledged the need for immigration judges to be independent from the Department of Justice as well as the need for more funding and staffing in immigration courts. The identification of these issues is only the first step in remedying them; however, the more people are educated about these invisible barriers the quicker they can be removed.