Independence of the Immigration Courts and Due Process Under Attack

The Trump Administration through the Department of Justice (DOJ) has, little by little, implemented a number of policies over the last year that have undermined the independence of the immigration courts and have weaken due process for foreign nationals. Some basics: The immigration courts play a key role in affording noncitizens an opportunity to present claims for relief and stay in the United States. These immigration courts are woefully backlogged with an ever-growing caseload of more than 650,000 cases, many of which take years to be decided. It is against this backdrop, but with only the backlog in mind, that the Administration and DOJ has adopted changes. These changes – including steps to impose numerical quotas on immigration judges (IJs) and attempts to curtail procedural safeguards – fundamentally threaten the integrity of the immigration courts. Here is a summary of what is happening.

Referring Cases to the Attorney General
Over the past several months, Attorney General Jeff Sessions referred to himself for further review two immigration cases decided by the Board of Immigration Appeals (BIA), the appellate-level administrative court. These cases involve a judge’s authority to use docket management tools (including continuances and administrative closure) and to exercise discretion in asylum cases. Immigration judges have inherent powers – including the power to control their own dockets and to administratively close cases as a means of exercising such control – delegated to them by Congress and recognized by the Supreme Court and lower federal courts. While attorneys general from time to time have referred immigration cases to themselves, it is less common to refer a case involving judicial discretion. Referrals such as the current ones have a chilling effect on IJs and foreign nationals before them: judges are less likely to take actions favorable to immigrants for fear that their decisions will be second-guessed by the Attorney General (AG) and immigrants representing themselves without a lawyer are less likely to advocate vociferously and appeal if necessary for fear that their actions are futile. Such referrals signal that the AG intends to massively curtail judicial independence

Completion Quotas on Immigration Judges
In late March, the Executive Office for Immigration Review (EOIR) – a division of the Justice Department – announced that IJs will be held to a strict metrics, including requiring them to complete a minimum of 700 cases a year. The new completion quotas will go into effective October 1, 2018, and will become part of an IJ’s performance reviews (tied to job security and raises). Judges, for example, could be influenced to deny a request for a continuance he or she otherwise would have reasonably granted, solely because of concern about completion numbers and job retention. Instead of reducing case backlogs – the purported rational behind the new policy – quotas will likely produce hastily made decisions, grave errors, and directly result in more appeals and remands, causing more delays and running contrary to the goals of the AG — not to mention undermining due process.

Curbing Use of Continuances
In July, the Chief Immigration Judge issued a memorandum making it more difficult for judges to grant multiple continuances. Continuances are necessary in a variety of circumstances, such as when an individual is facing deportation in immigration court while awaiting a decision by USCIS on a pending application. Examples are “U” visas petitions for victims of crime, immigrant visa petitions for family members of residents or citizens, or applications for certain individuals married to U.S. citizens. By law, IJs cannot make a decision on these applications; USCIS has sole jurisdiction to make those decisions. Should IJs adhere strictly to this policy, immigrants with valid forms of relief still pending before another immigration agency will be removed.

Immigrant’s Access to Counsel
In early April, EOIR announced its intention to cancel the Legal Orientation Program (LOP) and the Immigration Help Desk, programs established years ago that facilitate the provision by nonprofit organizations of individual and group presentations, workshops, and pro bono referral services to detained immigrants in removal proceedings. The programs have been immensely successful, having a positive impact on judicial efficiency and fundamental fairness by reducing the time people spend in detention and saving immigration judge and court time because noncitizens better understand the immigration system and whether they are eligible for relief. (Congress expressed instruction to continue such programming in the 2018 appropriations bill signed into law.) The Administration is terminating the programs for purported fiscal considerations.

In response to these new policies, especially the LOP termination and judicial quotas, a number of immigration experts and stakeholders have raised serious concerns. Benjamin Johnson, Executive Director of the American Immigration Lawyers Association, called on Congress “to hold the Attorney General accountable and demand the Department of Justice keep the LOP running.” The 2018 spending bill requires it, he noted, as does the U.S. Constitution, which guarantees equal protection under the law for everyone:

“Terminating the LOP, a proven program established … by then-President Bush, will strip the immigration court system of critical resources that ensure the most basic commitment to fairness and due process.… Defunding LOP and other tools … means that many thousands of people will be ushered through the system without understanding their rights and how the process works. Without LOP, the court system will be less fair, less efficient, and more expensive. Cases will move more slowly and more people will be held in detention for longer periods of time, costing taxpayers millions of dollars.”

A number of retired immigration judges and former members of the BIA jumped into the fray, and submitted a statement to the Senate Judiciary Subcommittee on Border Security and Immigration that the immigration court system is in crisis and asked Congress to remove the immigration court system from DOJ. Dozens of immigration law professors did the same, calling on Congress to create an independent immigration court and to defend the court against the DOJ’s attempts to erode due process. Democratic members of the Senate and House Judiciary Committees wrote a letter to the AG expressing their opposition to the impending termination of the LOP and the imposition of numeric case quotas, noting that the recent “measures raise constitutional concerns and stand in stark contrast to the American vision of a justice system for all.” And, in response to yet another policy, other members of Congress raised allegations that DOJ may be violating federal law by blocking the hiring of much needed immigration judges based on ideological and political considerations.

Clearly the Attorney General and the Administration are taking dramatic steps to rewrite immigration law through the immigration court system. One solution to thwart this encroachment is to create an independent, “Article I” immigration court (i.e., within the legislative rather than executive branch of the government), which would allow immigration judges to decide cases with fairness and neutrality.