Spring 1999, Volume XIV Number 2 Immigration: A Dialogue on Policy, Law, and Values The American Bar Association & Immigration Policy by Neal R. Sonnett At the end of the twentieth century, large numbers of immigrants continue to come to the United States, seeking refuge from persecution, or new opportunities for themselves and their families. In 1999, as in 1900, the courts and lawyers play a vital role in the quest for equality and justice for these newcomers. Recent law changes have affected virtually every aspect of immigration law: authorizing the summary rejection of asylum seekers and international travelers; eliminating rights to fair hearings and to administrative and judicial review in many cases; mandating detention without bond; creating a computerized worker registry to enforce employer sanctions; and denying a wide range of public assistance to long-term lawful permanent resident aliens and refugees. These changes represent the abandonment of certain principles upon which our nation’s immigration policy has long been based. They are also creating new and more daunting challenges for the legal community. Immigrants can no longer navigate the immigration labyrinth on their own, and civil, family, and criminal matters often have collateral immigration consequences. As defenders of justice and individual liberties, lawyers can help newcomers assert their rights and be a force for change. Immigration is both a legislative and a programmatic priority of the American Bar Association. The ABA House of Delegates has approved numerous policies that have enabled the ABA to be actively involved in the major immigration debates of the last two decades. On the basis of these policies, the ABA Coordinating Committee on Immigration Law advocates fair implementation of the law in both the legislative and regulatory arenas. The Committee also coordinates activities to improve the law, increase immigrants’ access to the justice system, and educate lawyers and the public about the scope and effect of immigration law developments. Asylum and Expedited Removal. Congress recently gave immigration officers at airports and other ports of entry the authority to make on-the-spot deportation decisions, which previously had been made only by immigration judges after an adversarial hearing at which the alien could be represented by counsel. As a result, asylum seekers who reach our shores after stressful and fatiguing journeys must prove a "credible fear of persecution" in order to avoid immediate expulsion and to be allowed to apply for asylum before an impartial immigration judge. There is no statutory right to legal representation or a qualified interpreter to assist in this screening process, and judicial review is barred. The ABA opposes summary removal laws and is committed to restoring meaningful hearings with access to legal counsel, administrative and judicial review. Legal Immigration and Naturalization. For two centuries, the United States has attracted newcomers from around the world and pursued a generous naturalization policy to encourage eligible individuals to become citizens and participate in all facets of American life. The ABA supports retaining the basic structure of the current legal immigration system and opposes new barriers for those seeking citizenship through the naturalization process. Due Process and Legal Representation. The new immigration laws are placing many immigrants and refugees in an untenable situation, in which they are detained without bond, denied access to lawyers, deported without hearings, and barred from appealing to the federal courts. The ABA is committed to restoring due process and judicial review to the immigration laws and has filed amicus curiae briefs on these issues in the U.S. Supreme Court. The ABA also is addressing a range of detention concerns. Mandatory detention of legal residents without consideration of release or providing a custody hearing has been held unconstitutional by several lower courts. Mandatory custody also burdens nonprofit legal providers by creating numerous obstacles to providing legal assistance to INS detainees. The ABA has urged the Department of Justice to detain asylum applicants only in extraordinary circumstances and to explore alternative means of ensuring appearance at court proceedings. The ABA leadership continues to work closely with the Department of Justice and the INS on developing and implementing standards to improve access of counsel to persons detained in all facilities where the INS holds detainees. The ABA’s Immigration Pro Bono Development and Bar Activation Project educates the bar about the legal needs of newcomers and how to improve the delivery of legal assistance to them. Through grants and technical assistance to bar associations, the project ensures that state and local bar associations are educated about these issues and that they intensify efforts to provide representation to immigrants. In Harlingen, Texas, the ABA’s ProBAR project provides pro bono assistance to indigent asylum seekers who are detained in isolated facilities where representation is not available. Working with the State Bar of Texas and the American Immigration Lawyers Association, ProBAR matches detainees with volunteer lawyers and law students. ProBAR also conducts daily group legal rights presentations for INS detainees. In addition, the Judicial Immigration Education Project is examining immigrant- and immigration law-related issues that may arise in civil and criminal court proceedings and developing a curriculum and reference materials on immigration law issues for state and federal court judges. Employment Discrimination. To reduce incentives for illegal immigration, the 1986 immigration reform law imposed sanctions on employers who hire unauthorized workers. Widespread discrimination against people who appear to be "foreign" was later documented by the GAO. Other studies revealed that sanctions were not effective in reducing illegal immigration. Under the 1996 amendments, employers are still required to check the employment eligibility of new hires, but there are some procedural changes. Minority citizens and residents who are discriminated against in the employment process due to national origin or citizenship status now must prove that the discrimination was intentional. The law also requires the INS and Social Security Administration to test various computerized verification systems. The ABA and others have called for repeal of sanctions and the implementation of an effective anti-discrimination campaign. The ABA also is concerned that the verification pilot programs will lay the foundation for the development of national data files on all Americans and lack safeguards against inappropriate use or disclosure of information. Public Benefits. The 1996 welfare reform law denied a range of benefits to long-term lawful permanent resident aliens. The immigration law further expanded on those restrictions. SSI, Medicaid, and Food Stamps subsequently were restored to many legal immigrants, refugees and asylees, but not to the same extent as existed previously. Legal resident aliens who pay taxes and meet other public responsibilities should not be foreclosed from receiving access to "the basic necessities of life" when circumstances force them to turn to the government. The ABA favors restoring to legal residents access to the federal- and state-funded benefits, assistance, and services that existed prior to 1996. Neal R. Sonnett is the Chair of the ABA Coordinating Committee on Immigration Law. Spring 1999 Issue Home | American Values | Levels and Criteria | Congress and Courts Bilingual Education | The Future | The ABA & Immigration | Resources Contributors | Comments | Credits/Disclaimers Focus on Law Studies Home | Subscribe to Focus | Questions/Ordering Back Issues