Immigration and Access to Justice: A Much Bigger Problem Than It Needs to Be

By Bob Glaves  |  CBF Executive Director

People come to America for the same basic reasons now as they have from the time of our nation’s founding: to seek economic opportunity and the American dream, to join their families, or to flee persecution or terror. We truly are a nation of immigrants, and from the start of our country to today, immigrants have played integral roles in our economy and in our communities.

Even if we had a well thought out and well-functioning immigration system that reflects these fundamental truths which no rational observer would mistake our current system for immigrants would have some unique needs for legal help, and many would also face additional challenges due to the language and cultural barriers they often confront.* Unfortunately, however, immigrants face far greater access to justice challenges today because we have a broken immigration system. These added challenges are unnecessary and ultimately counterproductive for all concerned, and expanding immigration enforcement without fixing the underlying systemic flaws will only make things worse.

* Those can be significant challenges for them, and in a future post I’ll talk more about the importance of the Illinois Supreme Court Language Access Program and similar initiatives that are addressing those issues.

The Broken System that Is the Underlying Source of Our Immigration Problems

There are two fundamental problems with our current immigration system that lead to many others. First, the laws that dictate how many people we allow in legally are arbitrarily set and generally bear no relation to the realities of our economy or what is happening in the world. For many years now, the system has lacked sufficient legal channels to function efficiently and effectively.

Second, with few exceptions, the only available penalty for violations of these flawed laws is deportation. A lucky few can get a deferred status that allows them to stay temporarily or longer term with limited rights. But the system does not allow for the range of penalties that our criminal justice system affords. We don’t throw everyone in jail who violates our criminal laws there are fines, probation and other penalties depending on the severity of the offense so that the punishment fits the crime. Not so for immigration, and many of our current problems stem from that glaring omission.

Back in 2011, Lee Ann Russo of Jones Day and I wrote an article for the CBA Record that talked in more depth about these flaws in the system and what a comprehensive fix should look like. What we talked about then unfortunately still holds true today due to a lack of political will, as a Chicago Tribune editorial this week underscored. And because this flawed system has been in place for decades now, we now have an estimated 11 million in the country without legal status, including hundreds of thousands here in Illinois.

They include people who were brought here as children through no fault of their own (many of whom have been temporarily protected in recent years through the DACA program initiated by President Obama); people who came here years ago to pursue the American dream and have lived here for decades, worked hard, stayed out of trouble, and started families that include children who are citizens; children and adults who came here to be with their families after finding they had no realistic legal options to do so; and many others who simply came in search of a better life and pose no threat to anyone.

Only a small minority of immigrants fall into the category of convicted criminals who pose a danger to the community, who virtually all agree should be priorities for deportation as they have been for years now. It is the millions who fall into these other categories who make the all or nothing part of our enforcement system such a problem.

An Array of Preventable Access to Justice Challenges

Apart from a number of social and economic dislocations caused by our dysfunctional immigration system, otherwise law-abiding people face a host of significant and preventable access to justice challenges due to their legal status, including:

  • People are more vulnerable to abuse or fraud. Examples include victims of domestic violence or trafficking, workers who toil in unsafe working conditions or are paid below market wages by unscrupulous employers, and consumer fraud victims. Their perpetrators prey on their vulnerability and then hold their immigration status over them to intimidate them from seeking legal redress.
  • People who are the main caretakers or breadwinners for families that include citizen children can be detained or deported, moving a formerly stable family into instability that has a number of unnecessary civil legal consequences. Examples include potential loss of their home through eviction or foreclosure, guardianship and custody issues, and other similar legal problems caused by breaking up the family.
  • The immigration court system faces lengthy and unnecessary backlogs because so many people are in proceedings who do not pose a threat to public safety. A recent Chicago Sun-Times article talked about how this problem plays out in Chicago, significantly slowing down the process for people who should be deported as well as people who have legal grounds to stay here and are unnecessarily detained or held back in the process.
  • People can be afraid to report crimes or cooperate with police out of fear of being reported to immigration authorities, making the job of local law enforcement more difficult and making the entire community less safe.
  • Thousands of people who pose no threat to public safety are held in remote detention facilities. This makes getting access to counsel much more challenging for them than if they were released into the community with alternative forms of detention that have been proven effective in ensuring compliance with the immigration court process.

These largely manufactured access to justice challenges create heightened need for legal aid and pro bono services and attendant funding, a need that is about to grow even larger right now as the new Administration significantly broadens enforcement efforts without addressing the underlying structural flaws in the system. In recent years, priority has been placed on people who pose a threat to public safety or have only recently entered the country and don’t qualify for protection. Now, children and families who have been here for decades and pose no threat to anyone also become potential targets for enforcement, making them even more susceptible to the challenges noted above, and making it more likely that immigration court backlogs are likely to grow even larger.

Getting to a Real Solution

There is only one way to solve the fundamental problems in our immigration system: taking an honest look at what has gone wrong and developing a fair process for treating the people who already are in the system, and then replacing it with a fair and efficient system that meets our economic and societal needs while ensuring that our safety and security are protected. The CBA, CBF and the ISBA, along with the ABA and many other legal groups, favor a comprehensive reform solution designed to do just that; a solution that also has broad bipartisan support from the business community, from a variety of faith based organizations, and in polls of the general public.

While we will never be able to let everyone in who would like to come here, a system that properly reflects our economic and societal needs will both make us safer and more successful for years to come. For those who have violated the immigration laws in the current broken system, there should be no amnesty, but a range of penalties depending on the type of violations that makes earned legalization possible for those who otherwise have played by the rules. Penalties should range from fines and a lengthy probation period, to deportation for those who have been convicted of serious crimes.

Leaving the broken system in place and then broadening enforcement so virtually anyone here without legal status is a target not only won’t fix the problems in our immigration system, it will only make them more pronounced. Our legal community should continue to advocate for real solutions while at the same time recognizing that a lot more immigrants in our community are going to need legal help in the coming months if the President’s recent executive orders on immigration are implemented as planned.