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Recent
Immigration Court Reforms: A First Start, But Not Strong Enough
Commentary
by Felix Amerasinghe, Esq.
Member of SAALT's Policy Taskforce
The immigration court system in the United States has come under
fire from advocates and federal courts for years due to bias and
incompetence. In January of 2006, Attorney General Gonzales ordered
the Department of Justice (DOJ) to conduct a comprehensive review
of the immigration courts. SAALT submitted several recommendations
to be considered during the review. In August of 2006, after eight
months of review and deliberation, the DOJ mandated a number of
immigration court reforms. While we commend the DOJ for acknowledging
the need to change the immigration courts, we believe that the reforms
can go much further.
The DOJ's most extensive efforts at reform are in two areas: improving
the quality and accountability of immigration courts; and improving
the quality of legal and translation services for immigrants in
court proceedings. In these two areas, DOJ incorporated a number
of our recommendations, although more could have been done to strengthen
the Board of Immigration Appeals (BIA) and protect its integrity.
Only little attention was paid to other areas, such as reforming
an overzealous prosecutorial culture and instituting sensible detention
practices. Moreover, we are concerned that DOJ has taken a step
in the wrong direction by expanding the immigration courts' sanction
authority.
Improving
the Quality and Accountability of Judges
To
improve the quality of opinions issuing from its immigration courts,
DOJ will require that new judges and members of the BIA take an
immigration law exam and be subject to a two-year probationary period;
in addition, all judges will be reviewed periodically and instructed
to improve performance if necessary. DOJ will mandate training for
judges, members of the BIA and staff attorneys. DOJ will streamline
the complaint process so that DOJ can promptly respond to and act
on complaints. To lighten caseloads, DOJ plans to add more immigration
judges and expand the BIA by four members.
Such
improvement in the accountability and quality of the immigration
courts is a welcome change. However, the impact of training programs,
review programs and examinations will depend on their content and
implementation. It is unclear whether the training will encourage
a better understanding of cultural backgrounds and subtle linguistic
differences between dialects. Without training on these key issues,
judges will continue to rule against South Asians based on misinterpretation
and misunderstanding.
Improving The Quality Of Services For Immigrants
DOJ
plans to improve the legal and translation services that it offers
to immigrants. DOJ will appoint a committee to oversee the expansion
and improvement of DOJ administered pro bono programs for respondents
in immigration cases. DOJ will also review the interpreter selection
process and recommend changes to improve the selection and quality
of DOJ and DOJ-contracted interpreters.
DOJ's
efforts to improve its translation and pro bono services are laudable.
However, the success of its efforts will hinge on reports and reviews,
the results of which are uncertain and may not be known for some
time. SAALT is disappointed that the committees and review panels
will not include advocates who routinely represent immigrants and
best understand their difficulties with respect to their representation.
DOJ also needs to provide "know-your-rights" sessions
and actively promote immigrants' right to self-obtained counsel.
With respect to translation, those who review DOJ's translation
services need to ensure that immigrants have access to interpreters
who speak their dialect. This is of particular concern to South
Asian immigrants: for example, Punjabi is not Hindi - judges will
repeat the type of error that we saw in Singh, where the 9th Circuit
reversed the immigration judge and BIA's denial of asylum because
their finding of inconsistency in the applicant's testimony failed
to take into account the linguistic barriers to the applicant where
the translator spoke Hindi, not the applicant's native Punjabi.
Urgently
Needed but Unaddressed Reforms
Prosecutorial
Reform: We are disappointed that DOJ did not order specific changes
in the way prosecutors approach their cases.
Detention
practices: Prolonged detention, particularly under conditions that
isolate immigrants from their communities, is demoralizing and inhumane
and can deprive immigrants of access to people who can assist in
their proceedings. Immigrants who are neither a flight risk nor
a danger to the community must be released on bail; detainees must
have regular access to family and community members; and detention
must be as short as possible: as such, DOJ needs to change both
the criteria for ordering detention and the conditions of detention.
For
more information about this issue, or to participate in our South
Asians Speak Out series, please contact us at saalt@saalt.org.
See
Singh v. INS, 292 F.3d 1017, 1023-1024 (9th Cir. 2002) ("The
English-Hindi-Punjabi-Hindi-English round robin that occurred there
begins to take on the patina of the children's game of 'telephone.'
The Board in this case did not address the difficulties Singh may
have had with multiple linguistic barriers. . . .")
Wayne
Incident an Opportunity to Consider South Asian American Kids' Needs
As
an educator and an Indian American, I was saddened to read Doug
Crouse's follow-up article indicating that the anti-Hindu and anti-Indian
vandalism and hate mail experienced by a Wayne family were perpetrated
by the family's oldest son. But I was not entirely surprised. A
similar situation occurred two years ago, when two Sikh boys in
Lodi, NJ ripped off their own turbans and cut their own hair, then
reported to the police that they had been attacked by five white
youth.
If
indeed the young Indian American in Wayne committed the vandalism
on his own family's home, then we have a lot to think about. My
research indicates that the emotions that may have driven these
three Indian American boys are all too common.
While
the prosecutors and police are doing their thing, we -- the South
Asia American community, Wayne school leaders, friends of the family
concerned, and others affected by this situation -- must do our
thing. What is our thing? It is trying to understand what might
be going on with this second-generation Indian American teenager.
First,
what could be going on at school? This young man may be facing regular,
even vicious acts of religious or racial harassment at school. Teachers
and administrators may or may not be in earshot of such bullying,
and if they did intervene may not have done so consistently or effectively.
The Lodi Sikh American youth later revealed they'd been harassed
at school for wearing turbans and being Sikh.
My
research has revealed that teachers and school counselors often
fail to challenge -- and sometimes actually participate in -- religion-based
hazing of Indian American K-12 students. In a Massachusetts school
where I was a facilitator on a project to improve inter-ethnic relations
among youth, , a vegetarian Hindu student was force-fed beef by
his non-Indian classmates and the incident was dismissed as lunchroom
mischief -- not as a bias attack, and not even as an act of violence
warranting punishment.
Second,
what could be going on at home? If the youth is being bullied or
harassed because of his ethnic, racial or religious identity and
comes home to tell his family, his immigrant parents may try to
ignore the comments or even turn blame on the child for his own
experiences.
Let
me be clear: I am not blaming the parents here. But again, research
reveals that when immigrant and second generation Indian Americans
have reported to their parents that they were being bullied in school,
or even denied an academic or economic opportunity because of their
religion or race, some parents' response was to do nothing. Some
youth were left feeling that their parents cared more about "not
making waves" than about standing up for them.
Third,
what is going on in the student's local ethnic and religious community?
South Asian American ethnic and religious communities can be a source
of important things in the lives of second-generation Indian Americans
like learning, networking, and social support. But some youth experience
their parents' ethnoreligious communities as a source of unwelcome
pressures: To be a good Hindu student is to do "X." If
you want to be considered a good Indian American, you must not engage
in "Y." Students with different priorities, trouble negotiating
the home/school divide, or even undiagnosed learning disabilities
can come to resent community pressures and may act out as a result.
Again,
we don't know what is happening in the school, home, or community
life of this 17-year-old Indian American Hindu. His acts may represent
a mixture of all the above -- or none of the above. And no amount
of mirror-gazing will make a difference if we don't transform it
into concrete steps to help this boy's family and others. Without
making assumptions or excusing what he did, we can still try to
understand why he may have done it. We can try to understand the
underlying issues that may need to be addressed in the lives of
young Indian Americans.
The
teenage years are a tumultuous time for anyone. For ethnic, racial
and religious minorities in the U.S., adolescent development is
affected by the additional challenges that comes with minority status.
Sometimes minority youth who face bullying in school respond by
directing physical or psychological harm at their own family or
community. Others act out. Still other just seethe.
The
search for truth in a particular situation must not obscure our
search for opportunities to discuss and confront the prejudice faced
by young Indian Americans. These conversations with our children,
our friends, and our school officials will help reduce the bullying
and help South Asian American youth be proud of who they are.
Khyati Y. Joshi is an assistant professor of education at Fairleigh
Dickinson University and author of the new book New Roots In America's
Sacred Ground: Religion, Race, and Ethnicity in Indian America (
Rutgers University Press, 2006).
khyati@fdu.edu
edfolio.fdu.edu/joshik
Note
from SAALT:
SAALT works closely with organizations that support and empower
South Asian youth. Such organizations include South Asian Youth
Action (SAYA!), which is the first and only organization of its
kind in the United States working to develop the skills, talents,
and leadership potential of South Asian youth living in New York
City. Through a range of supports and services, SAYA! provides South
Asian youth, ages 11 to 19, with safe spaces to learn, grow, play,
and contribute to their communities-and each other. Learn more about
SAYA's work at www.saya.org.
Desis
Rising Up and Moving (DRUM) is a membership-based social justice
organization of low-income South Asian immigrants in New York City.
DRUM works with young people through YouthPower!, a program that
builds the leadership of low-income South Asian and Muslim immigrant
youth, aged 15 to 21, as immigrant justice leaders in our community.
Recently, DRUM published a report entitled Education, Not Deportation,
which analyzes the impact of NYC school safety policies on South
Asian immigrant youth.
South
Asian youth have also participated in empowerment trainings around
the country, along the lines of Youth Solidarity Summer (NYC) and
Organizing Youth/OY (San Francisco).
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