Judges should be independent and impartial, right? That’s kind of Civics 101. The governor can’t tell a judge to find you guilty of murder—or to acquit you. The mayor can’t tell a judge to find you guilty of speeding. The lawyer who prosecutes cases cannot tell a judge how to decide. Judicial independence is so important that the Constitution says federal judges hold office for life, unless removed for bad behavior.
None of that applies to immigration judges and courts. Immigration courts come under the jurisdiction of the Attorney General, who appoints and removes immigration judges. The Attorney General is also the chief prosecutor and chief law enforcement officer in immigration cases. Under this administration, immigration judges have been ordered to speed up processing and to deny asylum.
The American Immigration Lawyers Association (AILA) describes the current situation:
“The root cause of this dysfunction is a conflict of interest built into the system itself. The immigration courts are overseen by the Attorney General (AG), who also supervises the U.S. Department of Justice (DOJ) lawyers who prosecute immigration cases in federal courts. This conflict is made worse by the fact that the judges are considered merely government attorneys, a category that fails to recognize the import of their judicial duties and puts them at the whim of the AG. …
“This flawed system has enabled the Trump Administration to transform the immigration courts into an enforcement agency rather than a fair and neutral arbiter, turning immigration judges, as head of the National Association of Immigration Judges (NAIJ) Judge A. Ashley Tabaddor put it, into ‘prosecutors in … judge’s robe[s].’… Judges are being pressured to render decisions at a break- neck pace at the cost of accuracy. At the same time, DOJ and EOIR [Executive Office of Immigration Review] are stripping judges of their ability to control their dockets, slowing down the processing of cases and reducing efficiency. EOIR policies – including hiring practices, docket interference, and attempts to terminate the immigration judges’ union – are politicizing the immigration courts more than ever before.”
Among the more obvious limits on immigration judges’ independence: the Attorney General can and does remove cases from the immigration court system and decide them himself.
AILA’s policy brief, Restoring Integrity and Independence to America’s Immigration Courts, describes a second challenge to the current immigration court system: a huge and growing backlog of cases.
“The immigration courts were drastically under-resourced due to DOJ hiring freezes and competing funding priorities for a long time, especially when compared to skyrocketing budgets for enforcement agencies. This disparity in funding led to a massive backlog of pending cases, which was up to 542,411 pending cases at the end of January 2017, when President Trump took office.Under the Trump administration, the pending case backlog has doubled and, as of December 31, 2019, reached 1,089,696 cases.While purporting to be committed to eliminating the backlog, the Attorneys General’s own policies are contributing to this considerable rise in cases.”
Current practices that make violation of immigrant rights a daily occurrence in immigration courts include:
- The Attorney General-imposed speed-up of cases, which punishes judges for failing to meet quotas, without regard to the difficulty or complexity of cases before them;
- Inadequate access to interpreters, especially for languages other than Spanish;
- Tent courts in which asylum seekers are restricted to video appearances before judges who may be hundreds of miles away;
- Limited or no access to attorneys to assist immigrants in complex legal cases;
- Detention of immigrants in private prisons in remote locations where they cannot communicate readily with attorneys or family members;
- The Remain in Mexico program, which both prevents access to attorneys and sometimes sends asylum seekers hundreds of miles away from their next scheduled court appearance, with no way to return;
- Forcing other asylum seekers to present their cases alone, and without access to family or lawyers, after 48 hours in Border Patrol detention;
- Issuing fake court dates and sending notices to fake addresses, such as shelters in Mexico where asylum seekers do not actually reside.
Immigration courts make life or death decisions for the people appearing before them. They should be independent and fair, not politically directed.
On January 29, 2020, the U.S. House Judiciary Subcommittee on Immigration and Citizenship will hold a hearing on immigration courts, Courts in Crisis: The State of Judicial Independence and Due Process in U.S. Immigration Courts.
Congress can and must make immigration courts independent of the Attorney General, and give them resources needed for fair and impartial justice.