On Friday, May 17, I spoke on a press call held by AILA on the politicization of the Immigration Courts. Rep. Tony Cardenas (D-CA), who was actually voting on the House floor, stepped out briefly to speak about a letter from 55 members of Congress that he had sent to AG William Barr requesting the latter to vacate his recent decision in Matter of M-S-, which denies asylum seekers who had been found by DHS to have a credible fear of persecution the right to a bond hearing. Also speaking was UCLA law professor Ingrid Eagly, who effectively analyzed and debunked statistics cited by EOIR in support of the Administration’s narrative designed to discredit asylum seekers. Retired BIA Chair and Immigration Judge Paul Schmidt joined for the Q&A. The full recording can be heard on AILA’s website (link).
My name is Jeffrey Chase; I am part of a group of former Immigration Judges and BIA Board Members that sent a letter to EOIR’s Director in response to the agency’s recent “Myths vs. Facts” memo about the Immigration Courts.
Much of the motive for creating an independent Article I Immigration Court stems from the present tension resulting from the housing of courts, which need to be neutral, transparent, and insulated from political pressures, within the DOJ, an enforcement agency often driven by political motives. It must be noted that the memo in question was not issued by an enforcement-related office at DOJ. It was issued by EOIR itself, an agency that has no involvement in enforcement, but exists only to house courts.
The issuance of the memo would be comparable to the Chief Judge of the State of New York, for example, issuing a memo stating “Myth: criminal defendants are presumed innocent until proven guilty;” “Fact: 72 percent of murder defendants are convicted;” “Myth: the right to counsel is important to due process; Fact: most defendants found guilty were represented by attorneys.” Such an action should cause outrage. Sadly, the EOIR memo was just another day in the Trump Administration.
All moves made under this Administration must be viewed as pieces in a puzzle designed to erode the independence of immigration judges in order to allow the administration to better control case outcomes to conform with its political goals. The Attorneys General have, through the odd process of certification, stripped IJs of the necessary administrative tools of administrative closure, termination, and continuances needed to control their own dockets.. Whereas most other high volume courts rely on prosecutorial discretion, conferencing, stipulation, and pre-hearing settlement, DHS has, in spite of the current case volume, directed its attorneys to oppose everything. EOIR is hiring new judges who are mostly former prosecutors, training them to deny cases and then placing them on probation for 2 years, during which time than can be fired for any reason, and subjecting them to completion quotas that strongly encourage judges to choose between fairness and due process on one hand, and their own job security on the other. Under these conditions, respected, experienced judges are choosing to resign, and are being replaced mostly by those whom the Administration believes to be more likely to do its bidding.
The Administration seeks to lower asylum grant rates to support its narrative that those arriving at our southern border are not really refugees. Former AG Jeff Sessions last year single handedly erased settled case law allowing victims of domestic violence to be eligible for asylum, ignoring the positions of DHS, the private bar, academics, and international law to the contrary. Sessions’ decision was also intended to increase the difficulty of granting asylum to those fleeing gang violence. Other actions to lower the asylum grant rate include detaining asylum seekers in remote facilities where they have little or no access to counsel, speeding those families it is forced to release through the court system so quickly that they have insufficient time to obtain counsel and prepare and document their claims, and most recently, forcing some asylum seekers to remain in Mexico while their asylum claims are adjudicated. In addition to again limiting access to counsel, those forced to remain in Mexico are at risk of attacks by those they are fleeing, and are additionally vulnerable to both common crime and harassment by the Mexican police.
The AG’s decision in Matter of M-S- is in line with this strategy to punish asylum seekers and hamper their ability to obtain asylum.
EOIR’s upper management, which should in theory exist to push back against political pressures in order to protect due process, has instead shown no will to do so. EOIR’s leadership sees itself as loyal employees of the AG and the executive branch, rather than as independent judges. It is for this reason that the removal of the whole immigration court structure from the DOJ and the creation of an independent Article I immigration court is an absolute necessity.