“Death penalty cases in a traffic court setting,” is how Dana Leigh Marks, emeritus President of National Association of Immigration Judges, once described immigration court, an assessment emphasizing the lack of justice that can be found in the immigration court system. The problems facing this court system are numerous and longstanding, but under the Trump Administration, Attorney General Jeff Sessions has exercised unprecedented use of his power to alter the system and the control it has over the lives of immigrants.
What is immigration court?
The immigration court system is part of the Department of Justice and run by the Executive Office of Immigration Review (EOIR). The EOIR was created after Congress granted the Attorney General broad powers that eventually led to the creation of the EOIR and its delegated authority to issue regulations, issue instructions, and review individual immigration cases. (The Attorney General himself also still retains some of these delegated powers.) Over the years, the use of these broad powers turned EOIR into a “quasi-judicial” system that resembles other courts but lacks independence and rights established in other court systems.
There are approximately 330 immigration judges that operate in 58 different immigration courts nationwide. The Board of Immigration Appeals, a 21-member body, reviews appealed decisions made by immigrants or DHS officers.
Lack of legal representation
In immigration court, individuals do not have the right to an attorney — only 37 percent of immigrants, on average, are able to secure representation. Cases in this system are civil matters (that don’t typically result in prosecutions, but rather determine whether or not an immigrant is able to remain in the U.S.), so defendants are not guaranteed an attorney. Immigrants fortunate enough to secure their own legal representation are up to 12 times more likely to win their cases.
This lack of representation extends to children as well. Historically, about two-thirds of children facing removal proceedings went to court without a lawyer. Children with an attorney have won their cases about 75 percent of the time, but that number drops to a staggering 15 percent without legal representation.
Currently, there is a backlog of some 730,000 pending immigration cases nationwide, with an average waiting period of two years. This backlog has been a compounding problem that, along with the entire U.S. immigration system, has suffered from a lack of much needed reform.
One reason for the backlog may be the limited number of judges. Ashley Tabaddor, president of the National Association of Immigration Judges, said “we need at least 1,000 or 1,200 judges to be able to combat the backlog.” But, President Trump called the idea for more judges “crazy.” Meanwhile, the Administration’s “zero-tolerance” policy of separating families may be further exacerbating the problem.
Draconian changes by Sessions
Attorney General Jeff Sessions has tried to force judges to work faster, an unprecedented step for any court system. In April 2018, Sessions’ Department of Justice announced a quota system tied to judges’ annual performance reviews, requiring them to clear at least 700 cases a year to receive a “satisfactory” performance rating. Forcing judges to increase the speed at which they clear cases could be hugely detrimental to immigrants, who often only have minutes to explain why they’re being allowed to stay in the U.S. could mean the difference between life or death.
Additionally, Sessions has referred himself several immigration cases in an unprecedented attempt to personally change individual case outcomes. Or as Tal Kopan from CNN put it, Sessions “serves as a one-man Supreme Court in these cases”. In one case, he opened the door to potentially deporting 350,000 immigrants whose cases had been closed, by removing the discretion for judges to close cases based on priority and resources.
In another case Sessions referred to himself, he dramatically undercut asylum claims based upon domestic and gang violence, potentially ending a lifeline for the majority of asylum applicants from Central America seeking protection from serious violence. He also removed a requirement that judges grant asylum seekers a full immigration hearing. In recent months, favorable rulings for asylum seekers by immigration judges has plummeted, which may well be attributed to Sessions’ unprecedented meddling in the immigration court system.
In yet another instance, one judge was swapped out for another to ensure a deportation order. As a statement issued by a group of retired immigration judges said, the swap was orchestrated to please the higher-ups and was the latest attack on judicial independence. The union that represents immigration judges also filed a grievance against the DOJ for the swap.
The immigration court system — bogged down, slow, with sub-optimal outcomes and a huge backlog — is in need of reforms. But not the kind that Sessions is offering.