The following is the transcript of my lecture on March 28, 2019 at Cornell Law School as part of its Berger International Speaker Series titled The Immigration Courts: Issues and Solutions. Here is a link to the actual recording of the lecture. My heartfelt thanks to Prof. Stephen Yale-Loehr, Prof. Estelle McKee, and everyone at Cornell Law School for the honor of speaking, and for their warmth, intelligence, and dedication.
I’ve had a couple of occasions recently to consider the importance of faith in our judicial institutions. I discussed the issue first in a blog post in which I commented on the Kavanaugh confirmation hearings, and then again in remarks relating to a play I was involved in in NYC based on an actual immigration court case, called The Courtroom. Attorneys more commonly focus on faith in our courts on an individualized, case-by-case basis. But in a democracy, a larger societal faith in our judicial institutions is paramount. And this may sound strange, but a large reason for this is that our courts will not always reach the right result. But society will abide by judicial outcomes that they disagree with if they believe that the result was reached impartially by people who were genuinely trying to get it right. Abiding by judicial decisions is a key to democracy. It is what prevents angry mobs from taking justice into their own hands. In the words of Balzac, “to distrust the judiciary marks the beginning of the end of society.”
If we accept this point of view, I believe that recent developments provide a cause for concern. As Jeffrey Toobin recently wrote in The New Yorker, “these days the courts are nearly as tribal in their inclinations as the voters are,” a point that the partisan nature of recent Supreme Court confirmation battles has underscored.
Our immigration courts are particularly prone to political manipulation because of their unique combination of structure, history, and function. The present administration has made no secret of its disdain for judges’ ability to act as a check on its powers. But the combination of the fact that immigration judges are under the direct control of the Attorney General, and that their jurisdiction concerns a subject matter of particular importance to this administration has made this court especially ripe for interference.
A brief history of the immigration courts reveals it to be what my friend Prof. Deborah Anker at Harvard Law School calls a “bottom up” institution. Immigration Judges originated as “special inquiry officers” within the old INS, where they held brief “hearings” under very non-courtlike conditions. In 1998, while I was an IJ, the court held a ceremony to commemorate the 25th anniversary of the immigration courts. This was not the anniversary of its recognition as a court by Congress, which came much later, but rather, the anniversary of the agency beginning to refer to its personnel as judges.
The keynote speaker at the ceremony was William Fliegelman, who was the first person to hold the title of Chief Immigration Judge. To the extent that his historical account was accurate, the immigration judge corps essentially invented itself, purchasing their own robes, designing the layout of their hearing rooms to better resemble courtrooms, and coordinating with INS district counsel to send its attorneys to each hearings to act as prosecutors. Judge Fliegelman and then-INS District Counsel Vincent Schiano together created the Master Calendar hearing which is still used by the courts as its method of preliminary hearing. In other words, according to Judge Fliegelman’s account, the immigration judges presented themselves to the Washington bureaucrats as a fait accomplis, leaping fully formed much like Athena from Zeus’s head.
However, the judges still remained employees of the INS, the agency prosecuting the cases. Most of the immigration judges were former INS trial attorneys. It was not uncommon for the judge and prosecutor to go out to lunch together, which didn’t exactly create the appearance of impartiality. In 1983, the immigration judges, along with the Board of Immigration Appeals, were moved into an independent agency called the Executive Office for Immigration Review (“EOIR”). However, EOIR remained within the Department of Justice, as did the INS. As both the INS commissioner and EOIR director reported to the same boss at Main Justice, and as INS was a much larger, more influential agency than EOIR, the former continued to be able to exert undue influence on the latter agency. That dynamic ended when the functions of the old INS were moved into the newly-created Department of Homeland Security in 2003. Actually, EOIR was slated to move to DHS as well, but managed to finally achieve some space from ICE once again only through the IJ’s own lobbying efforts.
Although EOIR did begin sporadically appointing private attorneys to the bench in the 1980s, the number of more liberal private bar advocates appointed increased under the Clinton Administration in the mid-1990s, significantly changing the overall makeup of the immigration judge corps. Many of those more liberal hires became retirement eligible under the present administration.
It wasn’t until 1996 that Congress finally recognized immigration judges by such title in statute. As I was a new judge at the time, I can report that yet again, this development was accomplished by the immigration judges themselves, who chipped in to pay a lobbyist to bring about this change, with no assistance from EOIR management.
Soon thereafter, the immigration judge’s union began advocating for independent Article I status. In the 1990s, then-Congressman Bill McCollum of Florida sponsored such a bill, which was opposed by EOIR management (out of its own self-interest), and which did not advance in Congress. A very similar bill was drafted last year by New York Senator Kirsten Gillibrand, which was never proposed to the Republican-controlled Congress. A main difference between the 1990s proposal and present one is the climate in which they are made. While many of the arguments for Article I status involved hypothetical threats in the 1990s, over the past two years, many of the fears that gave rise to such proposal have become reality.
Some of the recent developments underscoring the urgency of the need for Article I courts include:
Politicized IJ hiring. Following the more diverse corps of IJs hired under the Clinton Administration, a backlash occurred under the George W. Bush Administration. A report following an investigation by the DOJ Inspector General’s Office detailed a policy of extending IJ offers only to those who had been found to meet the proper conservative, Republican profile. For example, the report indicated that one candidate was found to have the proper conservative views on the “three Gs:” God, Guns, and Gays.
Although such practices came to an end in the latter part of the Bush Administration, in May of last year, a letter by 8 members of Congress. Prompted by whistleblowers within EOIR, requested the DOJ Inspector General to investigate new reports of a return of such politicized hiring under the present Administration. At present, nearly all new IJ hires are former prosecutors or those who otherwise have been deemed to fit this administration’s ideological profile.
Completion quotas: As of October 1, 2018, IJs are required to satisfy completion quotas set by EOIR management. According to the President of the Immigration Judges’ Union, Hon. Ashley Tabaddor, no other class of judges are subject to similar quotas. Judge Tabaddor has stated that IJs cease to be true judges under such system, as an adjudicator who must repeatedly choose between the requirements of due process and their own job security is one who lacks the independence required of judges.
Since October 1, judges are treated to a graphic on their computer screens each day which resembles the gauges on an airplane or sports car, with an animation of a needle which in seven different “gauges” will either be in the green, yellow, or red zone. Not surprisingly, IJs find this demeaning.
Under the quotas, IJs are each required to complete 700 cases per year. 95 percent must be completed at their first scheduled individual hearing. The judges may not have more than 15 percent of their decisions remanded or reversed by the BIA.
Judges have reported that when they find it necessary to continue a merits hearing, they soon receive a call from management requiring them to provide a detailed defense of their decision to continue the case. In some courts, EOIR management has asked the court’s judicial law clerks to act as spies by listening to the recording of the continued hearing and reporting whether the in-court statements of the judge match the explanation the judge later provided to their supervisor for the continuance. As a result, judges appointed by the Attorney General of the U.S. to hear life-and-death claims for asylum now feel the need to play-act on the record to avoid punishment from their superiors.
Another thing about quotas: right after they were announced, a reporter from NPR called me to ask what impact they were likely to have on judges. In response, I suggested that we look at the most recent case completion figures on EOIR’s website. I said we should first look at the court with the highest denial rate in the country, Atlanta. We divided the total number of case completions by the number of judges, and found that these judges averaged over 1,500 completions for the year, or more than double what was needed to meet the quota. We then did the same for one of the more liberal courts in the country, the New York City court, and found that the judges there averaged just 566 completions a year, well under what would be needed to satisfy the quota. So just to be clear, the quotas are not designed to have a neutral impact; the administration hopes that forcing more completions will also result in more denials.
It should be noted that despite these quotas and numerous other efforts by the Trump Administration to supposedly increase the court’s productivity, the backlog has actually increased by 26% over the past two years.
Continued impact of the 2003 BIA purge: In 2002, then Attorney General John Ashcroft expressed his dismay for some of the BIA’s more liberal decisions. His response was to strip some of the BIA’s authority (in particular, taking away its de novo review authority over immigration judges’ findings of fact). Ashcroft also announced that, in order to improve an overburdened BIA’s efficiency, he would reduce its size from 21 to 12 members. If you believe that the last part makes no sense, believe me, you are not alone.
One year later, Ashcroft followed through on his threat, removing every judge he deemed to be liberal from the BIA. The Board, which had always been conservative leaning, subsequently took a much greater tilt to the right. There was no correction under the Obama Administration, meaning that the BIA for the past 16 years and counting has been devoid of any liberal members. It’s present chair, David Neal, is a Republican who served as a staff member to former U.S. Senator and Kansas Governor Sam Brownback. The Board’s most prolific judge under the Trump Administration, Garry Malphrus, had been appointed to the bench after playing a role in the “Brooks Brothers riot,” in which Republican faithful hampered the recount of ballots in Florida following the 2000 presidential election. Board Member Ed Grant was a Republican staff member to Rep. Lamar Smith, a Texas Republican with anti-immigrant views who previously chaired the House Immigration Subcommittee.
Of course, the result has been the issuance of more conservative precedent decisions which are binding on immigration judges. And due to the common practice of Circuit Courts to accord deference to those decisions, under Chevron, Brand X, or Auer deference, humane interpretations of the immigration laws have become harder to come by. Prior to 2002, the BIA commonly decided precedent decisions en banc, often providing a range of concurring and dissenting opinions, some of which were later adopted by the circuit courts on appeal. But since that time, the Board only publishes three-member panel decisions as precedent, with a very small number of dissents.
A recent article in the Stanford Law Review by Prof. Jennifer Lee Koh provides an example of one of the effects of the Board’s more conservative makeup. Being convicted of what is characterized as a “crime involving moral turpitude,” or CIMT, may render noncitizens removable from the U.S. and ineligible for immigration benefits or reliefs. An attempt by the last Attorney General to serve under the Bush Administration, Michael Mukasey, to increase the BIA’s ability to find crimes to be CIMTs by creating his own alternative to the categorical and modified categorical approaches was vacated by his successor, Eric Holder (after having been rejected by 5 Circuit Courts of Appeal). As several related Supreme Court decisions sealed the matter, the Board in 2016 was finally forced (at least on paper) to acknowledge the need to make CIMT determinations through a strict application of the categorical approach. However, as Prof. Koh demonstrates with examples from BIA precedent decisions, since 2016, the Board, while purporting to comply with the categorical approach, in fact has expanded through its precedent decisions the very meaning of what constitutes “moral turpitude,” enabling a greater number of offenses to be categorized as CIMTs.
Consistent with this approach was a training given by now-retired arch conservative Board member Roger Pauley at last summer’s IJ training conference. From the conference materials obtained by a private attorney through a FOIA request, Pauley appears to have trained the judges not to apply the categorical approach as required by the Supreme Court when doing so won’t lead to a “sensible” result. I believe the IJ corps would understand what this administration is likely to view as a “sensible” result. Remember that the IJs being trained cannot have more than 15 percent of their decisions remanded or reversed by the BIA under the agency’s completion quotas. So even if an IJ realizes that they are bound by case law to apply the categorical approach, the same IJ also realizes that they ignore the BIA’s advice to the contrary at their own risk.
As to the law of asylum, not long after the purge of its liberal members, the BIA issued six precedent decisions between 2006 and 2014 making it more difficult to qualify for asylum based on membership in a particular social group. The standard set out by the BIA in its 1985 decision Matter of Acosta - requiring the group to be defined by an “immutable characteristic” that its members either cannot change, or that is so fundamental to their identity that they should not be required to change it - had worked well for 21 years. However, with no liberal push back, the more right-leaning Board members chose to add the additional requirements of particularity and social distinction to the PSG determination. The Board’s reliance on 2002 UNHCR Guidelines as justification for adding the latter requirement was most disingenuous, as the UNHCR employed the word “or” to allow those unable to otherwise satisfy the PSG requirements an alternative means of doing so, thus expanding those able to meet the definition. But by changing the “or” to an “and,” the Board required applicants to establish both immutability and social distinction, thus narrowing the ranks of those able to qualify.
The changes had a dramatic impact on the large number of refugees escaping gang violence in Central America who generally relied on particular social group-based asylum claims. Furthermore, while family has always been acknowledged as a particular social group, the BIA issued a decision in 2017 making it much more difficult to establish that the persecutor’s motive is on account of the victim’s family membership. In that decision, the BIA offered the Bolshevik assassination of members of the family of Czar Nicholas II in Russia in 1918 as an example of what must be established to be granted asylum based on one’s family membership. I have yet to find any lawyer who represents clients whose family presently enjoys a similar standing to the Romanov family in 1918 Russia. The ridiculously narrow interpretation was obviously designed to make it close to impossible for such claimants to qualify for relief.
The BIA also recently held that a Central American woman who was kidnaped by a guerrilla group and forced to cook and clean for them while in captivity had provided material support to a terrorist organization, thus barring her from a grant of asylum. In reaching such holding, the Board determined that the victim should have reasonably known that the Salvadoran guerrilla group that kidnaped her was a terrorist organization in 1990, a time at which the U.S. government did not seem to yet hold such view.
Of course, IJs are bound by these decisions. There have always been IJs who have forwarded new and sometimes creative legal theories which overcome these Board-imposed obstacles in order to grant relief. But as stated previously, the quota guidelines will deter such creative decisionmaking by threatening the IJ’s job security. Judges should not have to fear repercussions for their good faith interpretations of the law.
Under prior administrations, ICE prosecutors have agreed in worthy cases to waive appeal when appropriate, and would even stipulate to grants of relief in worthy cases. Also, under the previous administration, ICE would commonly agree to exercise its prosecutorial discretion to close non-priority cases. However, ICE attorneys at present are directed to oppose everything and agree to nothing.
Increased AG certifications: In 2016, former Bush Attorney General Alberto Gonzales co-authored an article in the Iowa Law Review suggesting that instead of issuing a controversial executive order, the Obama Administration should have instead had the Attorney General issue precedent decisions in order to change the immigration laws. A strange regulatory provision allows an Attorney General to direct the BIA to refer any decision for review. The AG can then simply rewrite any decision as he or she sees fit, creating precedent binding on the BIA, IJs, and DHS.
Clearly, the present administration is using Gonzales’s article as its playbook. Apparently not satisfied with its power to appoint its own immigration judges, with packing the BIA with conservative former Republican Congressional staffers, and with its power to publish regulations interpreting the immigration laws to its own will and to issue policy directives binding on the judges, the Attorneys General serving the Trump Administration are also issuing precedent decisions through the process of self-certification at an alarming rate. The decisions are different from those of other administrations, in that they are self-certified through procedural irregularity, are decided based on issues entirely different than those presented before the IJs and the BIA, and upend what had been settled issues of law that were not being questioned by either party to the action.
Former Attorney General Jeff Sessions used the certification process to make immigration judges less judge-like by stripping away necessary tools of docket management such as the right to administratively close proceedings, to terminate proceedings where appropriate, or to freely grant continuances in pending cases. Sessions certified one case, Matter of E-F-H-L-, to himself four years after the BIA’s decision in the case, after it had been not only remanded back to the IJ, but had subsequently been administratively closed to allow the respondent to await the approval of an immigrant visa petition. Sessions’s purpose in digging such an old case up was to vacate its holding guaranteeing asylum seekers a right to a full hearing on their application before an immigration judge. And his interest in doing so was to suggest to immigration judges that a way to increase their efficiency would be to summarily deny asylum claims without affording a hearing, which some judges have actually started to do. And in another decision, Sessions suggested exactly what type of asylum cases he deemed most appropriate for such treatment.
Sessions’s most egregious decision attempted to unilaterally strip women of the ability to obtain asylum as victims of domestic violence. This was not an issue that was in dispute, but had been a matter of settled law since 2014, when the BIA issued its precedent decision in Matter of A-R-C-G-, in which the DHS had stipulated that “married women in Guatemala who are unable to leave their relationship” constituted a cognizable particular social group to which asylum could be granted.
In certifying the case of Matter of A-B- to himself to reconsider such holding, Sessions invited briefs from all interested parties. A total of 14 briefs were filed, two by the parties, and 12 amicus briefs (including one from my group of former IJs and BIA members). The briefs from both parties (i.e. including DHS), and of 11 of the amici (the exception being FAIR, an anti-immigration group that regularly files the sole opposing amicus brief in such cases) all concluded that A-R-C-G- should not be vacated, and constituted a valid application of law which satisfied all of the BIA’s post-purge obstacles described above. Thus, with the exception of FAIR, there was agreement by DHS, the BIA, the private bar, legal scholars, advocacy groups, and under international law as to the validity of the existing practice.
Nevertheless, Sessions issued a poorly-written decision in which he strongly disagreed, and vacated A-R-C-G- while attempting to make it close to impossible for such claims to succeed in the future. I emphasize the word “attempting,” because fortunately, Sessions is a terrible lawyer with no asylum law expertise. As a result, his decision is largely dicta, which even Department of Justice attorneys admit only managed to vacate A-R-C-G- without otherwise altering the legal factors that would allow such grants in the future. But the BIA has simply been dismissing such claims on the grounds that Sessions had rejected them, without undertaking the individualized analysis required in such cases. As a result, the circuit courts, and not the BIA, will likely decide the propriety and impact of Sessions’s decision.
My final note concerning A-B- is that while the case was still pending before him, Sessions stated in a radio interview in Arizona that “We’ve had situations in which a person comes to the United States and says they are a victim of domestic violence; therefore they are entitled to enter the United States. Well that’s obviously false, but some judges have gone along with that.” Clearly, any judge making such a statement would have to recuse him or herself from the case. But Sessions, who never hid his bias against immigrants (among other groups), neither felt the need to be impartial, nor did the law require it of him.
Which makes Deputy Attorney General Rod Rosenstein’s recent remarks to a new class of immigration judges particularly worrisome. Rosenstein reminded the group that they are “not only judges,” but also employees of the Department of Justice, and members of the executive branch. As such, Rosenstein stated, IJs must “follow lawful instructions from the Attorney General, and...share a duty to enforce the law.” But shouldn’t judges who make such important decisions that sometimes involve life and death be “only judges?”
The incongruity is that the DOJ is an enforcement agency. As such, it is not designed to be either neutral or transparent. As already noted at length, it is headed by a Presidential political appointee, many of whose decisions and policies are guided by a purely political agenda. As such, DOJ has never understood IJs, who need to be neutral, transparent, and insulated from political influence.
Although many in EOIR’s management hold titles that make them sound like judges, in fact, they see their role not as protectors of immigration judge independence, but rather as executive branch, DOJ managers whose main job is to appease their higher-ups in the Justice Department. They view DHS not as one of the parties appearing before the agency, but rather as fellow executive-branch comrades. They take the same view of attorneys with OIL and the U.S. Attorneys Office who litigate immigration decisions in the federal courts. Significantly, they view the private bar and academia as being outside of this executive branch fold.
As my friend and fellow blogger, retired Immigration Judge Paul Schmidt recently wrote in a blog post, “what real court acts as an adjunct to the prosecutor’s office?” adding that such relationship is common in authoritarian, refugee-producing countries.
The last recent development I wish to mention that underscores this conflict was the treatment of a highly respected and fair immigration judge in Philadelphia, Steven Morley, who had issued a decision which was certified and reversed by Sessions, Matter of Castro-Tum. Castro-Tum entered the U.S. as an unaccompanied minor. After his release from ICE detention, he did not appear for his immigration court proceedings. However, Judge Morley was concerned, based on his past experience, that ICE had provided the court with an inaccurate address for the youth, and felt it would be unfair to order him removed in absentia without first determining if he had received proper notice of the hearing as required by law.
On remand, Judge Morley was directed by Sessions to proceed according to the section of the law that governs in absentia orders. Now, that section also requires a finding of proper notice on the respondent. Judge Morley therefore proceeded properly and consistently with the AG’s order when he granted a short continuance for briefing on the issue of proper notice. In response, the case was immediately removed by EOIR management from Judge Morley’s calendar. While a case would normally then be randomly reassigned to another judge in the same court, EOIR hand chose a management-level supervisory judge known for following the company line, who was sent to Philadelphia to conduct a single five-minute hearing in which she ordered the youth removed in his absence. Furthermore, Judge Morley was chastised by his supervisor, Assistant Chief Immigration Judge Jack Weil, who, according to a grievance filed by the IJ’s union, incorrectly told Judge Morley that he was required to enter a final decision at the first hearing following the remand, and further falsely accused him of acting unprofessionally in purportedly criticizing the AG’s and BIA’s decisions. 86 similar cases were subsequently removed from Judge Morley’s calendar. Such action sent a very strong warning to the entire IJ corps (many of whom are new hires still in their two year probation period) of what to expect should they choose to act as “only judges” and not loyal employees of the Attorney General and executive branch.
The above inadequacies in the immigration court system have allowed the present administration to exploit it like never before in support of its own political narrative. Examples of this include:
The Trump Administration’s early trumpeting of causing a “return to the rule of law” by increasing the number of removal orders its judges entered compared to the prior administration. Early on, this was supposedly “accomplished” through what Paul Schmidt refers to as “ADR” or Aimless Docket Reshuffling. Judges in busy courts were told to continue two weeks worth of cases at a time (usually involving noncitizens represented by attorneys who had already waited years for their day in court) to instead travel to courts near the southern border to hear cases of largely unprepared and unrepresented, newly-arrived asylum seekers. To repeat, in fact, the backlog has grown significantly in spite of such policies.
The administration also maintains a false narrative that Central American asylum seekers fleeing horrible gang and domestic violence are not really refugees, and in fact are dangerous criminals. Through the AG’s issuance of Matter of A-B- and the compliant BIA’s reliance on that decision to give short shrift to such claims; through the detention of asylum seekers in remotely located detention centers, and the new policy of forcing some to wait in Mexico while their claims are adjudicated, thus severely limiting such asylum seekers access to counsel and their ability to meaningfully participate in compiling evidence and otherwise presenting their best claims; by indoctrinating new IJs that “these are not real claims,” the administration has artificially lowered the percentage of such claims that are being granted asylum, which thus furthers its narrative that “these are not real refugees.”
Furthermore, by forcing those attempting to apply legally to wait in Mexico under inhospitable and sometimes dangerous conditions for increasingly long periods of time, those who finally out of desperation cross the border without authorization are immediately arrested and tried criminally for the “crime” of crossing the border illegally, thus supporting the narrative that our country is being invaded by “criminals.”
The administration also maintains the narrative that immigrants should just be deported quickly, without due process and hearings before judges. It is trying to accomplish this through the transformation of the immigration judge corps. By stripping IJs of much of what makes them independent judges, through the removal of necessary case management tools such as administrative closure, termination, and the ability to grant continuances; by imposing on them insulting completion quotas, and by making IJ training less about the proper application of the law and more about efficiency, many more experienced IJs are retiring sooner than they intended. The administration is most happy to replace them with their hand-picked candidates who they expect to be made more compliant through the lengthy period of probation, the completion quotas, and an indoctrination of the type described above.
The result of all this was summarized in a detailed report of the ABA released last week. The ABA report concluded that the immigration courts at present are “irredeemably dysfunctional” and on the verge of collapse. There are those who believe that such collapse has been the goal all along, as it would allow the administration to replace the present system with one that is even more compliant and affords even less due process, perhaps something like the old special inquiry officer model.
What can be done? A number of respected organizations, including the ABA, the Federal Bar Association, the American Immigration Lawyers Association, and of course the National Association of Immigration Judges have endorsed moving the immigration courts out of DOJ and making them an independent Article I court.
Article I status will likely not solve every problem, but for the reasons detailed above, it is an absolutely necessary starting point. Article I is truly a non-partisan position. It’s first sponsor, Rep. McCollum, was a Republican; Sen. Gillibrand, who has recently shown interest in the issue, is a Democrat. As the leader of a group of former immigration judges and BIA members, which includes members from across the ideological spectrum, I have found certain issues to be divisive within the group. However, the issue of immigration judge independence has been unique in garnering universal support.
While it is too early to discuss the details of what such bill might contain, it is hoped that the BIA as presently constituted will be replaced by an immigration appeals court committed to independently and fairly interpreting the law, free of any fear of displeasing the Attorney General. It’s members must be bipartisan, and appointed based on their knowledge of the law and their courage to apply it correctly. This would be a drastic change from the present group led by former Republican staffers still aiming to please their old bosses, and fleshed out with career DOJ bureaucrats who will loyally follow the party line. I’ve always felt that choosing a former Article III judge to head an independent immigration court would immediately change the court’s priorities in the proper manner.
What role can we all play in making this happen? At present, the most vocal advocates are immigration lawyers. As such change would need to come from Congress, it bears noting that no elected official’s election hopes are likely to hinge on their winning the immigration lawyer vote, which amounts to probably a few thousand votes in total spread across many states and congressional districts.
However, we are all constituents of our senators and representatives. It is therefore incumbent on all of us to be advocates, and where possible, to join forces with other groups of constituents that might both share our interest in the issue and carry more sway with elected officials.
Speak out to anyone willing to listen to tell them that Article I is a non-partisan solution to the unrepairable mess that our present immigration court system has become. In speaking to elected officials, try to find a reputable representative to endorse the concept.
Tell your own stories to make your points. Because lawyers at heart are storytellers.
Explain that quotas and deadlines run contrary to judicial independence.
Ask for oversight hearings, to which groups such as the NAIJ, the ABA and AILA should be invited to the table.
Outside of the actual immigration judges and BIA, the following additional changes are needed. First, ICE attorneys in the employ of DHS, i.e. the prosecutors in immigration court proceedings, must be allowed once again to offer prosecutorial discretion and to stipulate to grants in worthy cases, or to otherwise conference cases with private attorneys in an effort to streamline hearings. I can’t think of any high volume court in which stipulations, plea agreements, and conferencing between the parties is not the common practice. Imagine what would happen to criminal courts if they were told that from now on, every jay walking ticket will require a full trial and appeal.
Prosecutorial discretion and some of these other streamlining techniques had finally become common practice in the immigration courts under the Obama administration. It makes good sense and serves an important purpose in such an overburdened system to prioritize cases, and temporarily close out those cases that are not a priority. Most such cases involve noncitizens who are law-abiding, tax-paying individuals, some of whom have US citizen children.
Lastly, there are a large number of specially-trained asylum officers presently employed by DHS. Some have suggested moving them as well into an independent court system in a supporting role, and providing the asylum officers with expanded jurisdiction to hear not only a broader array of asylum claims (thus removing those cases they grant from the actual judges’ dockets), but perhaps also allowing the asylum officers to adjudicate other classes of cases, such as cancellation of removal claims.
In closing, as summarized earlier, over several decades, immigration judges evolved from non-judicial adjudicators in the employ of an enforcement agency into administrative judges comprised of lawyers from a broad spectrum of ideological backgrounds who were allowed to exercise a good deal of independent judgment in a court setting. And much of this positive development came from the “bottom up,” through the judges’ own collective efforts.
Because the final step of Article I status was never realized, actions by the Trump administration, which views independent judges as an unwanted obstacle to enforcing its own anti-immigration agenda, is attempting to roll back immigration judges to a state more closely resembling their INS special inquiry officer origins.
Although my focus has been on the present crisis under the Trump Administration, in fairness I want to state that the factors which set the stage for it built up over many years under both Democratic and Republican administrations. Regardless of what administration follows this one, the immigration courts at best will almost certainly continue to suffer from the not-so-benign neglect that led us here, simply because immigration is such a controversial topic that problems are kicked down the road rather than resolved.
The reforms which Article I will bring will help insulate the system from unnecessary costs and delay caused by clogged dockets and unnecessary appeals prompted by a lack of trust in the system. It will also help guarantee a clear funding stream with necessary resources not syphoned off by DOJ for other programs, and will safeguard the Circuit Courts from needless (and costly) appeals.
For all of these reasons, only an independent Article I court can sufficiently remove the threat of political manipulation, and again restore the faith in the immigration court’s fairness and impartiality that a democracy requires.
Copyright 2019 Jeffrey S. Chase. All rights reserved.