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Yesterday, Attorney General Sessions welcomed 44 new immigration judges with an ominous warning: “Immigration Judges [shall] conduct designated proceedings ‘subject to such supervision and shall perform such duties as the Attorney General shall prescribe.’” In other words, Sessions reminded immigration judges that they must carry out their duties according to his orders and his supervision. So much for the independence critical to the very nature of being a judge.
In fact, Congress did give the office of the Attorney General broad authority over the immigration court. But over several decades the law has recognized the need for some independence of immigration judges to uphold the rule of law. A series Congressional acts and regulations were promulgated throughout the end of the 19th and the 20th century that provided authority for boards of officers to make decisions on individual case appeals, not the Attorney General him/herself (or the Secretaries of Labor and Treasury before that). Over the last few decades, regulations were expanded to grow the immigration court system into a “quasi-judicial” system that includes many of the characteristics of typical court systems, including changing the job title of employees authorized to review decisions from “special inquiry officer” to “immigration judge” and authorizing judges to wear judicial robes in courtrooms.
Despite these efforts, the President of the American Bar Association (AB), Hilarie Bass, has noted, “[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.”
While other Attorneys General have been careful not to abuse their broad authority over the immigration courts, Sessions is turning back the clock. He is using welcoming speeches to encourage a hard line approach. His selective cites to the Immigration and Nationality Act are aimed at scaring new judges into submission without recognizing a history, practice, and statutes and regulations that offer immigration judges a measure of independence.
Substantively, Sessions touts many decisions he has already made claiming to “restore the rule of law in our immigration system.” Instead, he is single-handedly changing immigration law and practice without an act of Congress.
Of note, Sessions told the new judges yesterday, “[T]here will be more still to come.”
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 the current 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 current EOIR 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.
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.
Ur Jaddou, Director of DHS Watch and former USCIS Chief Counsel, said: “Even before many of Attorney General Sessions’ actions that counter the independence of the immigration court, legal experts with no political agenda have been calling for the independence of Immigration Judges. Given Session’s many actions and his ominous warning that there is even more to come, it is time for Congress to step up and save the immigration court system to protect the rule of law.”