The Attack on TPS

By David Wilson and Kelsey Friberg

Wilson Law Group

David Wilson, ’97, is the Managing Attorney of Wilson Law Group.  David litigates immigration law issues before the Executive Office for Immigration Review, Federal District Courts, and Federal Circuit Courts. David also was a member of the Wm. Mitchell L. Rev. as an Executive Editor.

Kelsey Friberg is an Immigration Attorney with Wilson Law Group.  Kelsey litigates immigration law issues before US Citizenship & Immigration Services, the Executive Office for Immigration Review, and has appeared in multiple federal court cases.

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The Immigration Judiciary’s Need for Independence: Breaking Free from the Shackles of the Attorney General and the Powers of the Executive Branch

Daniel Buteyn is an online editor for Volume 47 of the Mitchell Hamline Law Review and a student at Mitchell Hamline. Daniel’s article is a portion of his full-length paper available in Issue 4 of Volume 46.


Introduction

President Donald Trump’s strict immigration policies beg the need to evaluate the country’s immigration judiciary proceedings. How exactly do immigration courts function compared to civil or criminal court procedures? In short, the immigration courts are controlled by the Executive Branch of the United States government.

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The Immigration Judiciary’s Need for Independence: Breaking Free from the Shackles of the Attorney General

President Donald Trump’s strict immigration policies display the need to evaluate the country’s judiciary proceedings on immigration. How exactly do immigration courts function compared to civil or criminal court procedures? In short, the immigration courts are controlled by the executive branch of the United States government.


This note functions as a call to Congress to develop legislation that would make the immigration court system into an independent Article I court. The current system is broken, and it is time for the immigration courts to become an independent Article I court to eliminate unjust decisions based on policy rather than the merits of the case. In the past, Congress has created several Article I courts using its constitutional power with examples being the tax and bankruptcy courts.1 Additionally, the Federal Bar Association has drafted proposed legislation to create an Article I immigration court because there is a consensus that the current immigration court system is broken.2 We have reached the tipping point.

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If You Can’t Beat ‘Em, Reform ‘Em: Expanding Oversight of Privately-Operated Immigrant Detention Centers

In October 2019, Governor Gavin Newsome of California signed a bill barring the state’s department of corrections from entering into or renewing contracts with private corporations to run state prisons and immigrant detention centers beginning January 1, 2020. Citing a lack of oversight and an improper weighing of profit maximization over livable conditions, California will completely ban the incarceration of inmates in privately-run facilities from 2028 onward. Of the 9,000 individuals currently detained in California’s privately-run facilities, approximately 4,000 are immigrants in Immigration and Customs Enforcement (ICE) detention. Illinois, Nevada, and New York imposed bans similar to California’s. It is estimated that as many as seventy-three percent of immigration detainees are housed in privately-run facilities nationally. This means that the beneficial impact of this legislation will mostly be seen by immigrant communities.

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