How Litigation and Court System Affect Immigration - Research Paper Example

How Litigation and Court System Affect Immigration Immigration is defined as the act of foreigners coming into a country so as to get permanent residence in the country to which they move. Jones widely studied that there are many reasons for immigration including political, natural and adverse human disasters, economic reasons, family reunions, voluntary need to change residence and poverty (4). The International Organization for Migration studied that there are at least “200million migrants in the world today with the highest number being hosted by Europe and the highest number of migrants being from Asia” (Centre for Public Studies). The Centre for Public Studies also reported that the United Nations in 2005 found that there were at least 191 million migrants of international descent across the globe. This represents about 3% of the total world populations and is mostly from the developing nations. The numbers of people living in their countries of birth are expected to dwindle in the near future since there is an increasing influx of individuals who seek residence outside their countries of origin mainly for financial reasons. In the current day of world economic recession, influxes of immigrants are posing financial/economic, safety and population challenges in the countries that host immigrants. The increases in population are rising faster than economic growth. Given that most countries are putting down strict laws where immigrants and refugees are concerned, most immigrants are finding “underhand ways of becoming citizens of the countries” that they desire thereby raising diplomatic and legal concerns in the countries affected (Romero and Hing 230). The problems that have accompanied the influx of immigrants are not limited to logistical issues on housing and economy, but also on fraud and security issues. Among the most significant questions that have been raised are the employment of non-immigrant citizens, government provision of infrastructure and the long time change of culture and ways of life of the people; which adversely affects the citizens. For the stated reasons, many governments have developed different policies and laws that govern the acceptance and handling of immigrants. Wexler widely studied that the laws vary from one country to another and the judicial involvement in cases pertaining to such topics also varies from one country to another (1). The politics of immigration in the present day is however increasingly revolving around issues like terrorism and national security. For example, the Australian public policy debates on immigration have been based on the burdens that result from populations surges may have on the infrastructure, public services and the natural environment. There is increasingly a high level of political sensitivity on uncontrolled entry of migrants and the risk of ethnic and racial tensions that might result from such associations. Wexler stated that judicial power has been invoked in the concern for immigration issues and parliament has over time tried to confine the area of operation of the judicial review and the jurisdiction of courts (1). In the United States, the Immigration and Nationality Act of 1952 forms the basic body of immigration law in the country. This Act is also contained in the United States Code (U.S.C.) which contains all the laws of the United States of America. This Act has undergone several amendments so as to reach several current requirements in immigration. In the 1990 Immigration and Nationality Act, an amendment was done to change the preference and level of admission of immigrants into the United States. It was also meant to provide administrative naturalization among other functions. French asserted that the American Bar Association (ABA) Commission on Immigration is committed in ensuring that immigrants receive fair treatment and get their due full rights as immigrants within any state in the United States of America (11). There are also international laws that govern the treatment of immigrants. Wexler conferred that the international law generally gives higher protections than domestic laws, but have fewer propensity to implement the laws since the laws of the land almost always override those in the international arena (1). It is however hard for countries to fully get rid of immigrants. This is because they massively contribute to the economic growth of the countries in which they live. Tens of thousand of immigrants work in factories, hotels and restaurants and landscape businesses at lower wage rates and improper cushioning from unprecedented workplace injuries. Although there are laws that are universal in guarding employees, they are not always fully implemented at the ground level of employment. Most immigrants work under such conditions for fear that there rights are not fully covered for by the law enforcers, the courts inclusive. For this reason there have been many unsolved cases on the plight of immigrant workers who feel that the judiciary through the court systems downplays the rights and the needs of immigrants. French analyzed that there are shifting stands on the plight of the immigrants at state levels. In the United States for example, every individual state has been given he right to decide whether to withhold or deport immigrants (12). The problem is not just with the perceived strain on economic resources and competition for employment in the countries of immigration, but on the legality of the presence of immigrants in the countries in which they are. The American statistics shows that there are 10.3 million new immigrants in the United States at the moment. The tragedy is that almost half of this population does not have the legal documents that qualify them as immigrants. The Centre for Public Studies confers that the law has permitted the states to deport such individuals. However, other laws on immigrant rights override the deportation law. Most immigrants have challenged the law on this basis, by placing petition in a court litigation process. Given that litigation processes are expensive and emotionally draining, most immigrants opt out of court process thereby making the justice seeking framework demanding and a far off reach for the immigrants. The Role of Litigation and Courts in Immigration Immigration litigation is a court litigation process that “revolves around immigration matters” (French 20). Much as such cases may be heard in the court rooms, they also have a chance to be solved outside the courts without necessarily going through a court process which is expensive and time consuming. There is a tendency for immigration cases to be highest at border areas. Romero and Hing studied that the role of litigation is to perform trial for people who are found guilty of breaking the immigration laws (233). Additionally, litigation may be used as an avenue for advocacy against human rights atrocities which need legal redress from the government. The issues on which a litigation process may ensue include overstaying visas, crossing country borders illegally i.e. without the required documents and when an individual does not fill the appropriate visa when immigrating into a country other than the country of origin. The goal of litigation may include but is not limited to deportation where an individual with questionable immigration status commits a grave crime in the immigrant country. Deportation is the removal of a person(s) by legal force or decree. According to the American law, an individual may be deported if he/she does not abide by the specifications of the visa which he/she holds. Jones contends that this may also occur when an individual is involved in “criminal activity and/or has gained illegal entry into the country of residence” (3). The action of deportation lies with the courts who decide whether the accusations laid on an immigrant carries enough weight to warrant deportation. An individual may face the law of the country where he/she is an immigrant without facing deportation if the accusations are not valid. French advised that the accused can go through a court litigation process by hiring an immigration lawyer who will then speak on his/her behalf (17). An individual may also be deported for ethical and philosophical reasons such as belonging to an illegal social movement and/or holding religious belief that go against the constitution and laws of the land of residence. The constituent of fair reason for deportation is predominantly cultural and hence on this basis will vary from place to place and country to country. This is because appropriate behavior is not entirely defined by law, but is sometimes operational within the social and cultural construct of where an individual stays. For this reason most immigration department s and ministries have communicated to immigrants what warrants deportation before the individuals can sign any legal documents that bind them to the law. There are procedures that are followed so as to allow immigrants that feel that justice and fairness has not been done can appeal to the relevant courts so that they case is properly analyzed and decided on. The Centre for Public Studies analyzed that with the increasing immigration rates in most countries, it is prudent for nations to establish standard deportation procedures. These should be clearly communicated to the immigrants when they are getting into the country where they want to be permanent residents or before entry into the country where possible. Cloud communication and computing has made communication a lot easier around the globe and immigration departments can take advantage of this technological window to reach to the masses that they so target with such info. This information can be availed in blog spots and emails or even websites. These offices can also tap on social media which is slowly but surely becoming a common source of information for most people. The United States also carries out background checks to verify the immigrations status of people who seek permanent immigration status in the countries into which they move. The subject of the background check is always availed with information on what is being sought. It is done by law enforcers to facilitate the issuance of security clearance and to investigate an individual’s character before a criminal trial. Additionally, immigration rules prohibit the United States employers from employing individuals whose legal authorization to work in the US is questionable. Wexler conferred that any immigrants whose integrity in the face of the law is questionable are hence liable to face the law through the courts who handle such cases (1). Much as the law enforcers have the jurisdiction to do periodical background checks of the immigrants, it is the role of the federal courts to deport the immigrants and/or pass judgment on whether an immigrant is liable for jailing depending on the nature of the mistake that has been done. Litigation process may be either affirmative or defensive in nature. French discussed that affirmative civil immigration suits only take place after the Office of Immigration Litigation “affirms the legibility and authenticity of litigation results” (12). The Office of Immigration Litigation of the United States litigates in the federal circuit and district courts on behalf of the Immigration and Naturalization Service, Department of Labor, Department of State and other state agencies. The Office is also responsible for litigating matters of passports and citizenship, authorization of employment based on the Immigration Reform and Control Act of 1986 that have since been amended several times to suit the current prevailing issues. Additionally, federal immigration policy may impact on the state courts in a number of ways including difficulties in identifying have several state cases under different name (who have attained citizenship and/or passport by fraudulent means) among other impacts. Impacts of Courts on Immigration and Other Sectors of the Government There are increasingly occurring high numbers of immigration cases that form a good part of the national immigration backlog. French extensively studied that these cases continue to pend before the immigration judges (9). This backlog is proving problematic for both practical and legal applications. A normal court decision takes as long as sixteen (16) months and justice is not always speedy. This implies that individual with no relief from the law delay their exit from the country. Meanwhile, immigrants who have been wrongfully places on removal proceedings remain stuck in a legal vacuum which may involve needless detention and jailing. In addition, the ever piling immigration cases may result in pressure on the courts and judges side to deliver. The effectiveness of a federal policy is dependent on the corporation between the courts and the criminal justice system. Centre for Public Studies instructed that this includes the ability to effectively identify aliens and lawbreakers who though lawful immigrants are legible for removal from the country of residence. It also involves the application of pretrial release policies that are stipulated by the law enforcement department and judges in collaboration with the state correctional facilities. The information should also flow between the ICE, the courts and the jail officials. In addition, the courts may impact on the total outcome of a case since there are cases in which individual immigrants rights are based on the decisions that are made about the individual in court. This is especially applicable in “convictions on criminal activities and sentences based on such cases” (French 8). In essence, state law definitions and contexts determine federal immigration rights among immigrants and by far affect the decisions that a judge may make in a court process. Additionally, T and U visas are made available based on local justice official’s willingness “to certify that an individual immigrant is liable for criminal prosecution” (Wexler 1). Much as the law is clear the decision of the court about an immigrant overrides all other decisions, this in retrospect implies that immigrants to a large extent are at the mercy of official who are supposed to be low enforcers and who make the initial contact with immigrants and aliens. Given that immigration issues that arise in state courts are purely based on collateral issues, there are no official immigration case loads which have been statistically proven in the records of those courts. French studied that sometimes courts do not even know the immigration status of the litigants that appear before them hence making the counting of case loads almost always hard and impossible (22). This in the end makes it hard to find information on the amount of caseloads that exist about immigration in the state and federal courts. The ever-increasing caseloads where immigration matters are concerned and the need to quickly decide on cases has resulted in a shift from litigation processes to other law approaches where the immigration attorneys may seek redress outside the courts. Just like in the alternative conflict resolution measures, the witnesses and other facts about the immigrant(s) in question are investigated outside the courts so that a litigation process is solely for decision making process. French studied that this gives ample time for immigrants to appeal through the court of appeal when they feel that their rights as immigrants have been trampled on (16). There previously has been a push for the expansion of democratic space that would allow immigrants to challenge poor working conditions and prejudices that are based on race and country of origin. Romero and Hing argued that this is based on the assumption that immigration reforms have not attained the purpose for which they were proposed, to restore sanity in handling immigrants (233). It is also based on claims that reforms have further shut immigrants, making them almost invisible in the light of the changed laws. Works Cited Center for Public Policy Studies (CPPS). Federal Immigration Policy and the State Courts: Frequently Asked Questions. Immigration. 2010. Web. 7 Dec. 2011. French, Robert. The Role of the Courts in Migration Law. Migration Review Tribunal and Refugee Review Tribunal Annual Members’ Conference. 25 Mar. 2011. Web. 7 Dec. 2011. Jones, Paul. Immigration Benefits: Additional Controls and a Sanctions Strategy Could Enhance DHS’s Ability to Control Benefit Fraud, Report to Congressional Requesters. Darby: Diane Publishing Co., 2006. Print. Romero, Anthony and Hing, Ong Bill. Defining America through Immigration Policy. Philadelphia: Temple University Press, 2004. Print. Wexler, Lesley. The Role of International Law in Addressing Immigration: The Contributions of Human Rights Approaches. Web. 7 Dec. 2011. Read More