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Is Attorney General Sessions Turning What Should Be Impartial and Independent Immigration Judges into His Personal Deportation Force?

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It’s Time for an Independent Immigration Court

On Tuesday, Tal Kopan of CNN reported that an immigration judge assigned to a case for many years was replaced with another judge from Washington who quickly and with little process ordered the deportation of an immigrant.  Kopan explains:

The unusual use of a chief immigration judge from headquarters has raised concerns from retired immigration judges, lawyers and the union for active immigration judges. They say the move seems to jeopardize the right to a fair process in immigration courts.

It also highlights the unique structure of the immigration courts, which are entirely run by the Justice Department, and the ways that Attorney General Jeff Sessions — who serves as a one-man Supreme Court in these cases — has sought to test the limits of his authority over them.

Today, U.S. News & World Report said, the National Association of Immigration Judges (NAIJ), filed a grievance with the Department of Justice asking it “to acknowledge in writing that it will not interfere with the ‘decisional authority’ of judges in the assignment or reassignment of cases.”  The president of the NAIJ said, “The decisional independence of immigration judges is under siege.”

In addition, a group of retired immigration judges raised alarm bells in a letter saying, the court “removed the case from the docket of a capable judge in order to ensure an outcome that would please its higher-ups….[S]uch interference with judicial independence is unacceptable. As a democracy, we expect our judges to reach results based on what is just, even where such results are not aligned with the desired outcomes of politicians.”

Although the immigration courts have long suffered from lack of independence, the problem is particularly acute under the Trump Administration

The President of the American Bar Association, Hilarie Bass, explains that immigration courts have long suffered from lack of independence and impartiality:

Immigration judges serve as career attorneys in the Department of Justice with no fixed term of office and are subject to the discretionary removal and transfer authority of the Attorney General. They have no statutory protection against removal without cause or reassignment to less desirable venues or dockets. This erodes judicial independence and provides a basis to undermine public confidence in the competence and impartiality of immigration judges.

This problem is particularly acute under the Trump Administration and is precisely the reason why Congress must act now to create an impartial and independent immigration court.

In June, President Trump tweeted, “When somebody comes in, we must immediately, with no Judges or Court Cases, bring them back from where they came.”  It is precisely statements like these that makes independent and impartial immigration judges so critical. Although the President does not have direct control over immigration courts, his politically-appointed Attorney General that may be fired by the President at any time has extremely broad authority over immigration courts and judges.  

While most previous Attorneys General avoided exercising this broad authority to irrational limits, Sessions has already used it many times to imit due process, fairness, and independence in the immigration court.  In addition to the replacement of a judge as described above, the Attorney General has attacked the judicial independence of immigration judges by:    

  • Imposing quotas:  Sessions imposed case completion quotas for immigration judges earlier this year.  As the president of the NAIJ stated, “We don’t know of any other court whose judges are subject to individual quotas and deadlines as part of performance reviews and evaluations….It could call into question the integrity and impartiality of the court if a judge’s decision is influenced by factors outside the facts of the case, or if motions are denied out of a judge’s concern about keeping his or her job.”
  • Limiting tools for judges to efficiently manage dockets: Sessions recently ended a long-used authority of immigration judges – administrative closure – to temporarily put on hold low priority cases that could often be resolved through other more rational, cost-effective, and humane means.  As the president of the ABA stated, “The ability of judges to use their discretion to manage their dockets and caseloads in a manner that accomplishes this goal without fear of reprisal is essential to due process.”
  • Issuing unilateral decisions already reviewed by non-political judges that make significant changes to immigration law: The politically-appointed AG has a uniquely broad regulatory authority to unilaterally reconsider cases already reviewed by non-politically appointed judges and the Board of Immigration Appeals (BIA). Like BIA decisions, AG-certified cases are also binding on all immigration judges and all DHS employees.  The politically-appointed AG recently exercised this extraordinary authority to proclaim that most asylum claims based upon domestic and gang violence should not be granted by judges and DHS employees, contrary to years of precedent developed by non-politically appointed judges.  DHS recently implemented this poorly-reasoned opinion that may result in significant decreases in asylum protection for people escaping serious violence in their home countries.   

What is the immigration court?

The immigration court system – known as the Executive Office of Immigration Review (EOIR) –  is made up of 58 courts and approximately 330 non-politically appointed judges who review appealed DHS decisions to deny a request by an immigrant, such as asylum, and whom DHS is seeking to deport.  EOIR also maintains a board of non-politically appointed judges to review appealed decisions made by the 330 judges – the Board of Immigration Appeals (BIA).  The decisions of the BIA are binding on all immigration judges and DHS officers who make decisions on requests by immigrants, such as asylum.  

Congress did not create EOIR.  Instead, Congress gave the politically-appointed Attorney General (AG) very broad powers to generally issue regulations, instructions, and review individual immigration cases, as well as the authority to delegate this power.  In exercising this broad authority, the AG created the immigration court system through a series of regulations that delegate the AG’s power to review immigration decisions to employees of the Department of Justice.  Over the years, regulations were expanded to grow EOIR into a “quasi-judicial” system that includes many of the characteristics of typical court systems, including changing the job title of DOJ employees authorized to review decisions from “special inquiry officer” to “immigration judge” and authorizing judges to wear judicial robes in courtrooms.  

Although many improvements have been made over the years to improve the organization and performance of the immigration court system, as the President of the American Bar Association (AB), Hilarie Bass, stated, “[T]he immigration court’s continued existence within the Department of Justice, with its personnel and operations subject to direct control by the Attorney General, is a fatal flaw to the reality – and perception – of independence.”  

Why is an impartial and independent immigration court so important?

Following an extensive review of the immigration court system, the President of American Bar Association, Hilarie Bass, testified before Congress stating, “One of the distinctive hallmarks of our democracy is our tradition of an independent judiciary – the principle that all those present in our country are entitled to fair and impartial consideration in legal proceedings where important rights and privileges are at stake.”  Like other courts, Bass explained, “The immigration courts issue life-altering decisions each day that may deprive individuals of their freedom; separate families, including from U.S. citizen family members; and, in the case of those seeking asylum, may be a matter of life and death.”

But impartiality and fairness in immigration court not only benefits immigrants with serious issues at stake, it helps to cut costs and promote efficiency.  As Bass explains, lack of immigration court independence undermines “public confidence in the competence and impartiality of immigration judges.”  Impartiality and fairness:

should lead to greater acceptance of the decision without the need to appeal to a higher tribunal. When appeals are taken, more articulate decisions should enable the reviewing body at each level to be more efficient in its review and decision-making and should result in fewer remands requesting additional explanations or fact-finding.  These improvements in efficiency should reduce the total time and cost required to fully adjudicate a removal case and thus help the system keep pace with expanding caseloads. They also should produce savings elsewhere in the system, such as the cost of detaining those who remain in custody during the proceedings.