ABA House urges changes affecting undocumented immigrants, among other policy decisions

The American Bar Association House of Delegates, which determines association-wide policy, adopted policies over two days that urges Congress to add courthouses to the “sensitive locations” list for immigration enforcement and licensing groups to admit to the bar undocumented law school graduates under certain circumstances.

The action by the House — made up of 601 delegates from state, local and other bar associations and legal groups from across the country — met in New York on Aug. 14-15 at the close of the ABA Annual Meeting, which began Aug. 10.

Resolution 108, proposed by the ABA Law Student Division and embraced by the ABA Young Lawyers Division, recommends that state courts with authority to regulate admission to the bar admit undocumented law school graduates if they are “seeking legal status.” The resolution passed by voice vote with modest opposition.

Resolution 10C urges Congress to amend Section 287 of the Immigration and Nationality Act to expand and codify Department of Homeland Security guidelines regarding immigration enforcement. It would specifically add courthouses to the government’s “sensitive locations” list.

Under current U.S. Immigration and Customs Enforcement policy, a handful of locations, such as schools, healthcare facilities, places of worship and religious ceremonies, and public demonstrations, are off-limits to agents. Proponents of the resolution cited examples across the country where individuals avoided courthouses because of fears that ICE had been notified of their pending presence and their undocumented status. They argued that without designating courthouses as “sensitive locations,” the effect would be to chill participation of undocumented victims and defendants from the justice process as well as to deter other witnesses from testifying.

In one case cited, a domestic violence victim refused to testify when she learned that ICE agents were present and looking for her, and the defendant walked free.

In Resolution 10B, the House reaffirmed the ABA’s opposition of a half century to mandatory minimum sentences because it limits a judge’s flexibility to consider circumstances and has a disparate impact on African Americans, whom proponents say are more likely to be charged with offenses with sentences in this category.

The House considered resolutions in these areas over its two-day meeting:

• Juvenile justice: The House approved several resolutions related to the juvenile justice system. Drawing from the ABA Criminal Justice Standards, Resolution 112A seeks to address the predicament faced by juveniles caught in child welfare and criminal justice systems at the same time. Resolution 112C urges governments to adopt policies that favor release on recognizance, advocating that pre-trial detention should not be occur solely on the ability to pay; and Resolution 112E would prohibit the use of solitary confinement for those under 18 years old.

Gun violence: Following the lead of several states, the House approved Resolution 118 that urges governments to allow courts to issue gun violence restraining orders, including ex parte orders.
Proponents called the resolution a “modest, common-sense reform” that would help families and others prevent suicides and other acts of violence through temporary restraining orders.
Opponents raised First and Fourth Amendment issues as well as the one-sided nature of an ex parte proceeding. The resolution passed on a voice vote with modest opposition.

• Records expungement: Two different resolutions would affect those exonerated from a charge as well as those found guilty of minor offenses. Resolution 112F urges governments to allow individuals to petition to expunge all criminal records pertaining to charges of arrests that did not end in a conviction. Resolution 112G urges that convictions for minor violations for certain crimes related to homelessness be eligible to be expunged.

• Federal courts: In passing Resolution 104, the House reaffirmed its opposition to restructuring the U.S. Court of Appeals for the Ninth Circuit, one of 13 in the federal appellate system. Legislation has been proposed in Congress to split up the circuit, but there is strong opposition in the legal community. Speakers said the large majority of the 29 appellate judges on the court also oppose the split, as have bar groups in the western states and others.

• Gideon issues: Resolution 106 urges Congress to give the U.S. Department of Justice more powers to ensure compliance with the 1963 U.S. Supreme Court decision in Gideon v. Wainwright, which gave defendants in most criminal cases the Sixth Amendment right to counsel. Proponents said the promise of Gideon has been broken as many defendants are provided counsel who prove ineffective. Resolution 115 supports the appointment of counsel at federal government expense to represent all indigent persons in immigration removal proceedings.