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Sessions’ Assault on the Rule of Law in Immigration Court

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It’s Time for an Independent Immigration Court

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.”  

  • Removing judges in specific cases and selecting replacement judges to pre-determine outcomes:  In August, 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.  The National Association of Immigration Judges (NAIJ), filed a grievance with the Department of Justice on this case, 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 of this case, “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.”
  • Issuing unilateral decisions already reviewed by non-political judges that make significant changes to immigration law: The politically-appointed Attorney General (AG) has a uniquely broad 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 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.
  • Limiting tools for judges to efficiently manage dockets: Using his authority to re-decide cases already reviewed by the BIA – certification, Sessions 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.  Also making use of his power to certify cases, Sessions has narrowed the circumstances under which a judge may grant a continuance, instituting a multi-factor test that, as the American Immigration Lawyers Associations states, “places a heavy premium on ‘efficiency’ and ignores due process concerns.”  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.”
  • Attempts to end asylum claims without a hearing:  In another certified case, Sessions vacated a decision by the non-politically appointed Board of Immigration Appeals that states that asylum applicants are “ordinarily entitled to a full evidentiary hearing” and may not have their cases dismissed based solely upon a written record.
  • Immigration judge 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.”

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 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.  

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.  

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.”