The detention and deportation issue is further complicated by immigration judges, many of who were political appointees during the George W. Bush administration and who have little or no experience in immigration law.
Most immigrants who appeal their cases to the Board of Immigration Appeals can not afford lawyers, though reliable data concludes that legal representation significantly increases their chances of winning, especially in cases where the immigrant is seeking asylum in the U.S.
Addressing that issue, Attorney General Eric Holder has recently reversed a Bush-era order that said immigrants facing deportation do not have an automatic right to an effective lawyer. He said the government would appoint lawyers for immigrants contesting their deportation.
Meanwhile, ICE practices have also attracted the attention of Congress. Congresswoman Lucille Roybal-Allard, a California Democrat - and the first woman of Mexican ancestry to be elected to the U.S. Congress -- has introduced legislation to help to ensure that detainees, especially unaccompanied children, are treated humanely, receive access to legal representation and obtain needed medical care."
Some civil liberties advocates see some modest glimmers of progress. Francis A. Boyle, a law professor at the University of Illinois, told us, "It is extremely difficult to defend the basic human rights of undocumented aliens here in the United States. But there has been an amelioration of the mass raids of undocumented workers that Bush engaged in. Also, they have begun to put more pressure on employers, who are hiring these people illegally."
He added, "Obama should have reversed the Bush policy of giving local law enforcement agencies the power to police immigration law -- something they are not qualified to do, which leads to racial profiling specifically against Latinos, and is counter-productive to ordinary policing of the community. But the Obama policies are certainly an advance for human rights over the racist, exploitative and near-totalitarian Bush policies.
But I wouldn't bet on things getting better any time soon. Witness this postscript as reported by the blog of The Legal Times:
"Three siblings who are seeking asylum in the United States after fleeing El Salvador to escape gang violence face imminent deportation unless the Supreme Court or top administration officials intervene to temporarily block removal, lawyers for the siblings say.
"The Board of Immigration Appeals, a component of the Justice Department, earlier rejected the siblings' asylum request. An appeal of that decision is pending in the U.S. Court of Appeals for the 8th Circuit. But when the board last month denied an effort to reopen the case, Immigration and Customs Enforcement moved quickly to deport the three.
"The board's original ruling, which held that the siblings did not belong to a sufficiently "visible" social group, was criticized by some advocates as establishing too narrow a definition of social group. Lawyers from Latham & Watkins who represent the siblings say the three belong to a social group--youths who, based on religious and family values, shun membership in a gang.
"Without warning, according to the Latham attorneys, federal immigration authorities took two of the siblings into custody July 6 to begin the removal process. The third sibling voluntarily surrendered. Their lawyers say the three are expected to be deported imminently if there is no intervention.
"The lawyers are urging Homeland Security Secretary Janet Napolitano and Attorney General Eric Holder Jr. to intervene. Immigration and Customs Enforcement's "haste is terribly misguided, and we hope that you will intervene to prevent this family from being deported before they have had a full and fair opportunity to pursue their appeal," wrote Latham & Watkins associate Lori Alvino McGill to Holder on July 10. Click here for a copy of the letter to Holder.
"The 8th Circuit on July 14 issued a one-sentence order denying a motion to stay removal pending appeal. Latham lawyers then filed an emergency application to stay pending appeal with Justice Samuel Alito Jr., the circuit justice for the 8th Circuit. The application asks Alito to stay the board's removal order pending the appellate court's review of the board's decision.
"Alito today denied the application without referring it to the full court for consideration. The lawyers plan to re-apply today to another justice, which the rules allow, said McGill, who is counsel of record in D.C. with Latham partner Richard Bress.
"The petitioners, a 22-year-old woman and her two 19-year-old brothers, fled El Salvador in 2004 to live with their mother, who is in this country legally and living in Minnesota, said McGill.
"The siblings said they feared reprisal from the Mara Salvatrucha (MS-13) gang in El Salvador. Gang members threatened to murder the brothers and rape their sister for the brothers' refusal to join the gang, according to the Latham lawyers."
