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Immigration Law

Hon. Dana Leigh Marks on Immigration Law Reform

Hon. Dana Leigh Marks, Sept. 20, 2022

"After 45 years in the field of immigration law — 35 years on the bench, deep in the belly of government bureaucracy, preceded by 10 years as an attorney in private practice representing families and businesses who wanted help obtaining legal status for relatives and employees — I have learned a thing or two about immigration law and policy.

Despite my retirement last December, I have found it impossible to disconnect from my life's work, so I remain active in advocacy to improve our nation's troubled immigration system.

From my experience, I believe two straightforward changes would dramatically improve the current morass that is our legal immigration system, as well as our dysfunctional deportation process.

First, we should update the current immigration law to better utilize the registry provision, which provides some long-term residents without legal status a way to become lawful permanent residents.

Second, we should move the immigration court system out of the U.S. Department of Justice and establish it as an independent Article I court.

To put these suggestions into perspective, you should know that during my career I have seen multiple waves of xenophobia hit our country, as well as multiple refugee crises.

I have seen the results of trauma and persecution firsthand, as well as the effects of life-threatening poverty. From the bench, I faced down criminals who I believe abused the goodwill of our country and deserved to be deported.

Since it is difficult, if not impossible, to control the international political and economic variables — the wars, famines, violence in other countries — that drive immigration to this country, I believe waves of migration will likely persist and can hardly be seen as surprising.

The Fallacy of "Just Do It the Right Way"

Most people have no reason to become familiar with our obtuse and complex immigration system. Understandably, they only become involved when someone they know needs help.

When polls ask members of the public for their views on immigration in general, attitudes differ greatly from what I saw when members of the public appeared before me.

People who knew an affected noncitizen and discovered just how difficult it was for them to resolve their status showed tremendous compassion. Countless employers have told me that an employee who lacked legal status was the best worker they have had. And seeing families torn apart, firsthand, is excruciating for anyone to watch, let alone live through.

Contrary to public belief, there is no straightforward way to gain legal status in our country these days. Regardless of their best of intentions, the vast majority of noncitizens who lack lawful status have no clear or direct path to get right with the law, despite the acknowledged contributions they provide our communities.

Update the Registry Provision

The failings in our immigration law have resulted in thousands of cases that might otherwise have been resolved without a court proceeding being added to the immigration court backlog. Because of the outdated legal immigration system, the immigration court backlog has grown exponentially over my 45 years in this arcane legal specialty.

While various political administrations have attempted to use their executive branch powers to tinker around the edges, only Congress can implement meaningful change that addresses the need for a functional system that provides noncitizens ways to regularize their status outside the immigration court system.

Updating the registry provision is a straightforward way to vastly improve the immigration system.

But in spite of the clear and agreed upon need for reform, immigration issues have become increasingly toxic and vitriolic hot potatoes on Capitol Hill. Numerous times in recent years congressional efforts to craft compromise legislation to improve the system have stalled and faded from public view.

This persistent stalemate has led to a desperate need to reform our legal immigration system. Simply put, the law that currently controls legal immigration is woefully out of date, extremely unworkable and deeply inconsistent with modern realities.

Our current law is based on the principles of family reunification and employers' needs for certain workers, which are still highly relevant guideposts. However, the current system is no longer viable because of outdated quotas.

It is not realistic to expect the spouse of a lawful permanent resident to wait decades in their homeland for the opportunity to obtain legal status. Nor is it reasonable to expect an employer to wait a decade or more for their essential worker to become able to work legally in this country.

Knowing these individuals should be allowed legal status because of the needs of their sponsors as well as themselves, the quota-based restrictions should be reformed. There is a straightforward reform that would largely solve this problem for many noncitizens: Update the law's registry provision.

This approach is far from new. For almost a century a provision in our immigration laws called registry has existed.

Registry allows noncitizens without legal status who can demonstrate a designated period of physical presence in our country and good moral character to apply for lawful permanent residence, provided they do not fall into other specifically disfavored categories — which include individuals likely to threaten national security or to use public assistance or welfare.

When first enacted in 1929, the registry category for lawful residence required 8 years physical presence. The time frame was subsequently updated on four occasions, to periods of 16 years, then 18 years, then 17 years, then 14 years, respectively.

But each time the update referenced a specific date prior to which a person's presence must commence. The most recent revision was in 1986, when the date was set at Jan. 1, 1972 — so the current requirement mandates more than 50 years of physical presence to obtain this relief.

Were Congress to update the date for registry to require any of the periods of time previously set — from eight to 18 years — and state the time frame of residence rather than referencing an exact date, it would avoid the need for future updating and, more important, thousands of individuals now caught in legal limbo would become eligible to fix their immigration status.

Legislation to do just that was introduced on July 20, co-sponsored by 46 members of the U.S. House of Representatives.[1]

This change would help noncitizens both in proceedings before the immigration court and outside of proceedings.

For now, we can only hope that the usual stalemate that plagues immigration legislation will finally be broken, so this common sense solution, which will benefit U.S. citizens as well as their foreign born relatives and employees, will become law.

Create an Article I Immigration Court

The second major reform that I believe is essential to bring order back into our immigration system is enhancing the independence of the immigration court by moving it outside the DOJ and the control of the U.S. attorney general.

An independent court is the best way to improve the efficiency and credibility of the court by insulating it from the political priorities and posturing of the executive branch.

Restoring faith in the system would reduce needless appeals and time-consuming legal challenges to the deportation process. This change would also be cost-effective.

Immigration court is not the kind of court most people expect. It is an administrative court, housed within the DOJ rather than the judicial branch of the government. Thus, immigration judges answer to the attorney general, and are told that our client is the U.S. government, not the public we should serve.

Despite the relative informality of the court structure, many of immigration cases are essentially death penalty cases. When someone comes to the U.S. fleeing violence, starvation or persecution, the consequences of deportation can mean — and has meant — their death.

When a longtime lawful resident violates the law, they may be forced to leave the only home they have known to return to a country that is literally foreign to them.

There is no right to appointed counsel in immigration court, even though in every case before me the government was represented by an experienced prosecutor.

Navigating through the overly complicated maze of bureaucratic requirements without legal assistance is often doomed to failure because of red tape, even when an individual has a valid legal reason to be living in the U.S. Creating an Article I court would provide judges with greater authority and the flexibility to address infirmities like this.

At present there are over 1.8 million cases pending before approximately 600 immigration judges nationwide, and many of those cases have been languishing on the docket for more than five years.

This untenable backlog has been created by years of underfunding, and exacerbated by policies motivated by political pressures and optics rather than judicial efficiency.

Immigration judges have been micromanaged for political gain instead of being allowed to control their own dockets for maximum effectiveness and fairness. Immigration judges cannot do their best because in many ways their hands are tied behind their backs due to bureaucratic interference.

Judges who try to work diligently within the system have become political footballs, frequently scapegoated and struggling to respond to the priority du jour. Measures that are amenable to soundbites and flashy optics are imposed, rather than the more difficult-to-implement systemic change.

For example, moving the cases of new arrivals to the front of the court dockets and mandating short time frames for judges to hear those cases may sound like a practical solution when surges of migrants arrive at our borders. It seems reasonable to predict this rapid process will deter others from coming.

But the reality is that this tactic has been tried repeatedly and has failed each time. It has been proven to have no perceptible impact on the number of new arrivals, yet the same tactic has been mandated by the politically motivated policies of multiple administrations of both political parties.

Judges in the affected courts have found that changes like these create lasting problems. Newer cases frequently are not ready for their hearings because noncitizens need to find attorneys or obtain necessary documentation, causing their cases get continued to a later date anyway.

Meanwhile, the case that was scheduled for that hearing slot years earlier, and which was ready to be heard, gets pushed to the back of a docket, often years in the future.

Frequent changes in policy like this, which are motivated by political optics rather than sound docket management, have caused the nearly complete dysfunction in the court we see today, where blame-shifting and name-calling abound, and morale has plummeted.

Immigration judges need traditional judicial tools and skilled court administrators at their disposal to address this backlog and prevent it from recurring, and those items are precisely what creation of an Article I court would provide.

There is virtually unanimous consensus among legal experts that this is a necessary and appropriate change, essential to enabling the immigration court to effectively address the current docket crisis.

The longer such reform is delayed, the more the backlog will grow and the more difficult it will be to plow through it. Even if the number of immigration judges was almost doubled, the Congressional Research Service estimates that there would still be a backlog of cases until 2030.[2]

Restructuring now is the right thing to do both for due process and for improved efficiency at the courts.

We have a huge opportunity to resolve this structural problem should Congress act right now. A bill called the Real Courts, Rule of Law Act is currently pending in the House of Representatives.[3] This bill, if passed, would create an Article I immigration court, modeled after the U.S. Tax Court.

If enacted, it would serve to shield the immigration court system from the political pressures of the executive branch. Dockets would be managed by a professional court management office, with due process and sound court management principles being paramount.

Executive branch overreach, which has been employed by Democrats and Republicans alike and undermines efficiencies because of the docket shuffling it causes, would cease.

Numerous legal organizations have endorsed the concept, including the American Bar Association, the Federal Bar Association, the National Association of Immigration Judges and the American Immigration Lawyers Association, just to name a few.

Moreover, this is a nonpartisan, good government reform. The underlying immigration law regarding who can be admitted to this country and who can be deported would be unchanged, leaving that politically charged debate untouched and nongermane to this improvement.

The incontrovertible benefit would be the protection of the deportation adjudication system from the shifting political priorities that have virtually crippled it. An Article I immigration court would profoundly improve our removal adjudication system.

Why We Need Congress to Act Now

Our nation's immigration courts are the first, and often only, court system noncitizens encounter. We should do our best to assure that their experiences instill in them respect for the American justice system.

We need to show the wisdom of our constitutional protections and the core values that undergird our legal system, such as our commitment to due process.

That is how we win their hearts and minds, even if individuals are required to leave the U.S. We can create allies, not enemies abroad. An Article I immigration court would fulfill the promise of those core legal values.

Updating the registry provision would provide a realistic solution for many noncitizens who want to get right with the law, without enduring the deportation process.

It would also provide a rapid resolution for many individuals whose cases are currently pending in the court backlog, as these are often straightforward cases that can be adjudicated quickly.

I can only hope that members of Congress and their constituents are listening and willing to act, so that they do not have to learn these lessons the hard way, as I have done.​"

Dana Leigh Marks served as an immigration judge from 1987 to 2021. She is president emerita of the National Association of Immigration Judges.

[1] H.R. 8433, 117th Congress (2021-2022); https://www.congress.gov/bill/117th-congress/house-bill/8433.

[2] The Congressional Research Service report dated April 25, 2022, entitled U.S. Immigration Courts and the Pending Cases Backlog available at https://crsreports.congress.gov. 

[3] H.R. 6577, 117th Congress (2021-2022); https://www.congress.gov/bill/117th-congress/house-bill/6577."

The opinions expressed are those of the author(s) and do not necessarily reflect the views of their employer, its clients, or Portfolio Media Inc., or any of its or their respective affiliates. This article is for general information purposes and is not intended to be and should not be taken as legal advice.