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Court Challenges Secrecy in Post-Sept. 11 Deportation Proceedings
By Deborah W. Meyers
Migration Policy Institute
October 1, 2002
Court Rules Secret Deportation Hearings Unconstitutional
In the most significant ruling by the courts against the Bush administration's
post-September 11 actions, the United States 6th Circuit Court of Appeals
declared that a blanket policy of secret deportation proceedings is
unconstitutional. Writing that "Democracies die behind closed doors," the
three-judge panel unanimously agreed that the press and the public have a
"right to access" to the proceedings, and that the government had acted
unlawfully in unilaterally closing all "special interest cases." The judges did
recognize, however, the government's right to argue for closed hearings on a
case-by-case basis.
Major Changes to Board of Immigration Appeals
Under the final rule recently published by the Justice Department, the Board of
Immigration Appeals will be reduced from 23 to 11 judges (after a transition to
reduce the backlog in cases), and most cases will be heard by a single member,
rather than a three-member panel. The rule also sets new time limits and
abolishes de novo review of immigration judges' (IJ) factual findings. The
government has argued that the changes will make the system more efficient and
help streamline the process. Advocates, however, argue that there will be insufficient
opportunities for fair review of IJ decisions, given the number of cases that
each member will have to handle, potentially leading to rubberstamping of
decisions, rather than consistent, fair reviews.
New LPRs Break One Million Mark
The Immigration and Naturalization Service announced that 1,064,318 individuals became legal permanent residents
(LPRs) between October 2000 and September 2001 (Fiscal Year 2001). The
numerical increase from previous years was attributed primarily to reductions
in the backlog due to improved processing. At the beginning of 2000, the
processing of applications was taking an average of 30 months; that time now
has decreased to 11 months. Nearly 850,000 applications remain pending.
Sixty-one percent of the new LPRs had been living in the US (as students,
temporary employees, refugees, asylees, or illegally) and adjusted their
status, while the remainder entered on visas. The leading country of origin was
Mexico (206,426), followed by India (70,290), China (56,426), the Philippines
(53,154), and Vietnam (35,531); immigrants from these five countries comprised
40 percent of the total number.
US, Canada Agree to Final Draft of Safe Third Country Agreement
Canada and the United States have reached an agreement to limit the access of
asylum seekers to the asylum/refugee system of the country of first arrival.
Discussions on this issue began last December under an immigration accord
between the two countries, and negotiation of such an agreement was one of the
30 points of the US-Canada Smart Border Declaration. Canada had reported that
nearly 40 percent of its asylum seekers were entering via the United States,
and some individuals had pending asylum applications in both countries (often
as a defensive measure to avoid deportation). Refugee advocates in both
countries have expressed concern about the agreement, fearing it will limit the
ability of asylum seekers to apply for asylum in the country of their choice,
thus reducing their likelihood of receiving protection. The agreement does
include exceptions, such as for family reunification, but overall, it would
likely shift an unknown number of asylum applications from the Canadian system
to the US system.
Refugee Admissions Fall Below Target
Due to the temporary shutdown of the refugee resettlement program after
September 11 and the increased security procedures that followed, US officials
and resettlement agencies now expect refugee admissions for the fiscal year
ending September 30 (FY 2002) to total fewer than 30,000. This falls far short
of the 70,000 slots approved for FY 2002, which had been the lowest ceiling
approved in 15 years. Traditionally, the United States has resettled more
refugees than all other countries combined.
President Signs Child Status Protection Act
People under the age of 21 who have applied for, and are entitled to,
immigration benefits no longer will be in danger of losing their eligibility
due to Immigration and Naturalization Service processing delays. Under the law
signed by President George W. Bush in August, the children of US citizens,
lawful permanent residents, refugees, and asylum seekers will be treated as
minors for adjudication purposes, regardless of their age at the time the
adjudication actually occurs, as long as they were under 21 at the time of
application. The law addresses the "aging-out" of otherwise eligible immigrant
children.
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