At the BBA Council meeting in May, then-BBA President Mark Smith appointed a Working Group to consider the rapidly unfolding immigration-related developments impacting our community and country. This Group, chaired by BBA Vice President Martin Murphy of Foley Hoag, worked hard over the summer, ultimately establishing a set of four principles, and an accompanying report, to guide the BBA’s response to these issues. The BBA Council considered, and adopted, these principles at their meeting in August. At that same meeting, the Council also endorsed three policy positions that align with the spirit of the principles and past BBA positions.
Keep reading for an overview of the new BBA principles, the three new policy positions, and a brief history of our past positions.
The New BBA Principles
Given the recent, and continuing, sweeping changes in immigration policy and enforcement practices, the BBA Council determined it would be worthwhile to produce a set of guiding principles that will help to frame and improve the Association’s response to these developments as they arise. As mentioned above, immediate Past President Mark Smith established a ten-person Working Group, chaired by Martin Murphy, which produced the principles and an accompanying report on the BBA’s role in the immigration policy space and the reasoning in which the four principles are based. The Working Group was composed of immigration law experts–including both Co-Chairs of the BBA’s Immigration Law Section–and volunteer BBA leadership.
The four principles provide:
Principle 1: Immigration is a defining feature of the American experience. Immigrants play a critical role in the civic, economic, and cultural life of our city, state, and country.
Boston is largely a city of immigrants, no less now than in the past. Our history, culture, economy, and traditions have been shaped by immigration, and the unique and valuable contributions of immigrants continue to strengthen our city’s civic, economic, and cultural life.
Principle 2: No person’s rights or human dignity should be devalued on the basis of immigration or citizenship status.
All human beings are the bearers of fundamental rights and freedoms that are embodied in the United States Constitution and the Universal Declaration of Human Rights (a declaration adopted by the United Nations General Assembly in 1948 to establish a common standard of fundamental human rights that should be protected for all peoples and nations). National governments must respect human rights when people enter their countries, and judicial systems must uphold these rights. The BBA affirms that all human beings have these fundamental rights, regardless of how they entered the United States.
Principle 3: The constitutional right to due process and equal protection, guaranteed to every person regardless of immigration or citizenship status, must be protected and enforced.
The United States Supreme Court has ruled that all people in the United States, including undocumented immigrants, are guaranteed protections under the Constitution’s Fifth Amendment (right to due process of law) and Fourteenth Amendment (right to due process and equal protection under the law). The BBA insists that these protections must be fully upheld and enforced.
Principle 4: Every person should have the full and meaningful ability to exercise their rights and to access justice through the legal system regardless of immigration or citizenship status, level of income, or economic circumstance.
The BBA asserts that immigrants, like all other residents of the Commonwealth, must be free to access courthouses, law enforcement agencies, and other governmental agencies without fear that doing so will lead to immigration detention or deportation. The BBA also believes that immigrants in removal proceedings should be provided with a lawyer to ensure they are able to exercise their rights and legal options to the full extent possible. Finally, the BBA believes that immigrants must have access to a fair legal process with independent judges when seeking immigration relief.
The Three New Positions
Given our past positions, and the above principles, the BBA Council also determined that it was appropriate to immediately endorse three particular policy positions, elaborated upon below.
ABA Resolution on Family Separation
As noted, earlier this summer the BBA endorsed the ABA letter related to family separation, expressing strong opposition to the practice of separating children from their parents when arriving at the Southern border. That letter noted that “the systemic practice of separating parents and children is antithetical to our values as a country, appears to violate longstanding precedent protecting rights to family integrity, burdens the federal criminal justice and immigration adjudication systems, and increases costs to the government.”
As of August 20, 2018, over three weeks after a court-ordered deadline of July 26, more than 500 children still remained separated from their parents, according to court filings. It’s estimated that the parents of nearly 300 of those children have likely already been deported.
Following up on this letter, the ABA adopted a resolution on family separation at its House of Delegates meeting in August. That resolution, which the Council endorsed, urges executive and legislative action to ensure that:
“(i) the federal immigration policies and practices of separating minor children from their parents at the border immediately cease and not be reinstated; any separation of a child and a parent shall occur only upon a determination of child endangerment, applying well defined criteria with due process protections for parent and child, and
(ii) children who have already been separated from their parents under such policies have a safe and expedited procedure for being reunited with their parents consistent with ensuring that parents’ and children’s individual and independent legal claims are protected.”
You can read the latest on the unfolding litigation here, and we will continue to monitor the situation and alert you about opportunities for bar involvement.
ABA Resolution on Courthouses as Sensitive Locations
The BBA has also been paying close attention to the increasing instances of immigration enforcement in and around courthouses in Massachusetts. In March, we sent a letter to the Single Justice, requesting a full-bench SJC review of a petition asking the Court to ban ICE officials from making civil arrests in and around Massachusetts courthouses, stating:
“For the past year, the BBA has been monitoring, with increasing concern, reports that the U.S. Department of Homeland Security (“DHS”), acting through ICE, is using courthouses in the Commonwealth to effect civil immigration arrests…Such actions by ICE may significantly impair the ability of the Commonwealth to ensure access to our courts and fair administration of justice for all our residents.”
The Working Group’s report, in discussing Principle 4, calls attention to this specific issue as a key area of concern due to the negative access-to-justice implications of such enforcement activities. Many in the legal community have expressed similar concerns, including bar associations, judges, prosecutors and defense attorneys, and advocacy organizations and elected officials throughout the country. Here in Massachusetts, Chief Justice of the Trial Court Paula M. Carey expressed her concern in a letter to an ICE Special Agent, noting that:
“It is essential that [victims and litigants] be free to seek relief from the Court without fear that their presence in Court will be the cause of an immigration enforcement action. If not, the unfortunate result will be that public safety will decrease, communities will become less safe and perpetrators of domestic violence will feel empowered to abuse their victims with impunity… Any increased immigration enforcement in these civil matters would mean fewer applications, more withdrawn cases, and more defaults, resulting inevitably in violence, injustice, and threats to public safety. In my view, it would ultimately affect the Court’s ability to carry out its mission to provide the protections guaranteed by the laws of this Commonwealth.”
It is worth noting that there are other locations, already designated as “sensitive,” where immigration enforcement actions are not allowed except under exigent circumstances, including schools, medical treatment and healthcare facilities, and places of worship. It is long overdue for the courthouse—a crucial locus for public interaction with our system of government–to be added to this list of locations deemed worthy of protection.
For that reason, the BBA Council endorsed a 2017 ABA Resolution that urges Congress to amend Section 287 of the Immigration and Nationality Act to expand and codify the Department of Homeland Security guidelines to include courthouses as “sensitive locations” in which immigration enforcement actions can only be taken upon a showing of exigent circumstances, such as a threat to public safety, pursuit of an arrest, or risk to evidence in a criminal investigation, and with supervisory official approval. In addition, the Resolution urges the U.S. Immigration and Customs Enforcement and Border Protection to, with or without congressional action, revise its existing guidelines to include courthouses as a sensitive location.
We are proud to join the ABA in advocating for this sensible, yet highly important protection, in order to ensure that the courts in the Commonwealth and across the country are able to fulfill their vital function.
Protecting the Independence of the Immigration Adjudication Process
As an association of attorneys, we have often spoken about the importance of judicial independence and the dangerous consequences when political pressure is applied to those serving on the bench. Twice in recent months, immediate Past President Mark Smith felt compelled to speak out when judicial independence was threatened in the Commonwealth, noting that “the independence of the judiciary is a foundational component of our democracy” and that “the public calls on our judges to make exceedingly difficult decisions every day, and relies on them to do so based not on what is popular but what is fair and just.” And, of course, more broadly, the BBA each year prioritizes funding for the judiciary in its annual budget campaign because we recognize that a well-functioning, fair, efficient, and fully independent judiciary is absolutely crucial to the fair administration of justice.
However, the current structure of the Immigration Courts renders them unable to function as fairly, efficiently, and independently as they should. Immigration Judges are career attorneys appointed by the Attorney General as administrative judges under a division of the Department of Justice and do not have the usual safeguards that protect judicial independence. The BBA Working Group’s report notes that Immigration Judges work under extraordinary circumstances, as increased enforcement has caused their caseloads to more than double since 2012, and immigration law is a notoriously complex subject matter. The shortcomings of the current structure have been made even more apparent by recent actions taken by the Department of Justice, which, as stated in the report, have “added to these pressures by adopting new measures intended to increase efficiency but which, as a practical matter, pose serious challenges to judges seeking to do justice in individual cases.” For example, earlier this year Attorney General Jeff Sessions announced new metrics for Immigration Judges, including the imposition of quotas. This sparked a quick and resolute outcry from a number of groups, including the National Association of Immigration Judges (NAIJ), whose President described the new requirements as “an egregious example of the conflict of interests of having the immigration court in a law enforcement agency.”
In addition, just last month the NAIJ filed a grievance asking the Justice Department’s Executive Office for Immigration Review to acknowledge in writing that it will not interfere with the “decisional authority” of judges in the assignment or reassignment of cases. NAIJ President Judge A. Ashley Tabaddor wrote, “The decisional independence of immigration judges is under siege.” And the American Immigration Lawyers Association (AILA) also recently issued a statement in response to another decision that limits the ability of judges to grant continuances, noting that “until Congress acts, the Attorney General will continue to encroach upon the independence of the courts, forcing judges to order people removed without a fair process.”
In order to address these serious judicial independence and due process concerns, many, including NAIJ and AILA, are calling for the restructuring of immigration courts under Article I, similar to existing federal Bankruptcy and Tax Courts. The idea, however, is not a new one; the Federal Bar Association has urged this reform since 2013, and the ABA has held this position for twelve years.
You can read the ABA’s full report on the matter and recent testimony on the subject. In short, an Article I court “is likely to be viewed as more independent than an agency because it would be a true judicial body; is likely as such to engender the greatest level of confidence in its results; can use its greater prestige to attract the best candidates for judgeships; and offers the best balance between independence and accountability to the political branches of the federal government.” The BBA is proud to join the ABA, and many others, in urging congressional reform of the Immigration Courts, restructuring them under Article I, in order to guarantee the level of independence needed to fairly administer justice and ensure due process for all involved.
A brief history of past BBA positions
These new developments build off of the BBA’s past work in this area, as we have The BBA has a lengthy history of adopting positions that help to ensure access to justice for immigrants and fairness in the immigration process. Though not comprehensive, the below highlights a number of key positions taken by the BBA over the past decade.
In keeping with our core mission, much of the BBA’s past work in immigration relates to access to justice, and specifically, the provision of counsel for low-income individuals. In 2008, the BBA’s Task Force on Expanding the Civil Right to Counsel produced the report Gideon’s New Trumpet. The Task Force’s Immigration Law Committee, noting the complicated nature of immigration proceedings and the severe consequences facing those caught up in them, recommended that representation should be provided in all cases where individuals are detained, face deportation as a resolution of a criminal offense, or are seeking asylum.
In 2017, the BBA expanded on this position by adopting ABA Resolution 115, which supports “the appointment of counsel at federal government expense to represent all indigent persons in removal proceedings before the Executive Office of Immigration Review (in Immigration Courts and before the Board of Immigration Appeals), and if necessary to advise such individuals of their rights to appeal to the federal Circuit Court of Appeals.” You can read more about that position here.
Many of our other immigration positions also relate to the fair administration of justice in the immigration application and adjudication processes. In 2008, for example, the BBA endorsed an ABA Resolution on immigration fees, asking the Executive Branch and Congress to ensure that fee levels for immigration benefits were not so burdensome as to deter individuals from applying. In addition, the BBA endorsed ABA Resolution 111B, which opposes the detention of noncitizens except in extraordinary circumstances and urges that “… a practice be put in place that speeds up the detention process, [that] outside parties be allowed to monitor detention conditions, and that the legal, mental, and health conditions of children whose parents are detained get properly addressed.”
Many of the BBA’s past positions specifically address the treatment of youth. In 2016, we submitted an amicus brief and supported legislation which would ensure that all juveniles under the age of 21 had the ability to apply for Special Immigrant Juvenile Status, which offers a pathway to seek legal permanent resident status for youth that have faced abuse, abandonment, or neglect, upon showing it would be unsafe to return to their home country. (We are very happy to report this important protection was finally signed into law this year!) And in 2017, we endorsed ABA Resolution 301, which supports the preservation and development of policies that protect due process and other safeguards for immigrant and asylum-seeking children, especially those who have entered the U.S. without a parent or legal guardian.
The BBA has also been responsive to a number of the more recent developments, including filing an affidavit in February 2017, as part of a suit calling for constitutional scrutiny of the Executive Order banning individuals from certain predominantly Muslim countries from entering the U.S. and highlighting the BBA’s strong opposition to proposals which would use national origin, race, ethnicity, religion, sexual orientation, and gender identity as the basis for discrimination. In April 2018, the BBA submitted a letter to the Single Justice in support of full bench review of the case petitioning the SJC to issue a writ of protection banning civil arrests of individuals in, around, and traveling to and from courthouses, and in June 2018, the Council endorsed a letter from ABA President Hilarie Bass in opposition to the practice of separating families at the border, and urging their prompt reunification.
While we are thrilled to have in place the three new positions outlined above, our work is only getting started, and we look forward to keeping you updated on the Association’s ongoing advocacy efforts to stand up for the rights of immigrants and work towards access to justice for all. Finally, we’d like to extend a big thank you to the members of our Immigration Working Group, and Chair Martin Murphy, for all their hard work in producing the principles and the report!
Legislative and Public Policy Manager
Boston Bar Association