http://thehill.com/opinion/immigration/384987-when-immigration-judges-get-political-justice-suffers
Nolan writes in The Hill:
. . . .
How serious is this problem?
A TRAC Immigration study concluded that the outcome at asylum hearings over a recent six-year period depended largely on where the hearing was held and which immigration judge was assigned to the case.
. . . .
Examples of improper hiring practices.
Political considerations. A July 28, 2018 report from the Office of Professional Responsibility and the Office of the Inspector General at the Department of Justice reveals that the office of former Attorney General Alberto R. Gonzales let political considerations guide the selection of immigration judges.
His chief of staff, Kyle Sampson, claimed that he thought immigration judge positions were “political” and therefore that it was appropriate to consider political factors in assessing candidates.
He solicited candidates for immigration judge positions from the White House’s Office of Political Affairs, its Office of Presidential Personnel, and its Office of the Counsel to the President.
Potential immigration judge candidates were screened at these offices to establish their “political qualifications.” This included searching databases to determine whether the candidates had made monetary political contributions.
Sampson also accepted recommendations from Republican Members of Congress and from colleagues within the Justice Department who were political appointees.
Affirmative action. On October 5, 2004, the Department of Justice, without admitting wrongdoing, agreed to pay $11.5 million to settle a class action lawsuit alleging discrimination against white male applicants for immigration judge positions.
I was a decision-writer at the Board when the discrimination allegedly was occurring.
A close friend who had received EOIR’s Director’s Award twice for being the most outstanding attorney of the year couldn’t even get an interview for a position as an immigration judge, but women and minority applicants with much less impressive credentials were being hired, some of whom had no immigration experience at all.
Acknowledging the problem. In response to rising criticism of the disparities in the decisions in asylum cases, EOIR has begun to track decisions to identify immigration judges who have unusually high or low rates of granting asylum, but that just highlights the problem, it doesn’t solve it.
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I encourage everyone to go on over to The Hill at the above link for Nolan’s complete article.
- Nolan is right: the EOIR hiring system is broken and has been for many years.
- The problem of “Refugee Roulette” was first documented by a group of three scholar-practitioners at Georgetown Law in 2007.
- Although the situation abated somewhat for a few years after that study’s publication, large disparities seem to have persisted.
- Perhaps because of space limitations (I believe Nolan told me he had an “800 word limit” — something that doesn’t happen at “Courtside”) Nolan wasn’t able to cover two of the most egregious examples of a broken system:
- The “Ashcroft Purge” of 2001-2003 that reduced the BIA from approximately 20 Members to 12 by expelling those of us on the BIA duly appointed by prior AG Janet Reno whose views were considered “too liberal” for Ashcroft;
- The BIA is now seeking to “reconstitute itself” as a 20 judge body, confirming the “political motivations” behind the original purge;
- The 2017 GAO Study that documented the incredible two-year average hiring cycle for filling Immigration Judge vacancies that evolved under the Obama Administration;
- That process produced highly skewed results favoring candidates from DHS, DOJ, and other governmental backgrounds by an astoundingly inexplicable ratio of nearly 9 to 1 over qualified attorneys from private practice, academia, and NGOs.
- At present, judges who have actual experience representing asylum applicants in Immigration Court are grotesquely “underrepresented” in relation to those from prosecutorial or other governmental backgrounds.
- Jeff Sessions will likely make things even worse.
- Not surprisingly, Sessions has already drawn credible allegations from Democratic Representatives of political and ideological interference in judicial hiring. See, e.g., https://wp.me/p8eeJm-2rz
- As Nolan demonstrates, the Immigration Courts need a true merit based hiring system.
- Systems such as that used for selecting U.S. Bankruptcy Judges and U.S. Magistrate Judges are useful models that have earned praise for being efficient, inclusive, involving the practicing bar, and producing unbiased, merit-based judiciaries.
- A merit-based system is impossible while the Immigration Courts and the BIA are in the Executive Branch at the DOJ.
- The only solution is an Article I U.S. Immigration Court or some other type of structure independent of the Executive.
- The “Ashcroft Purge” of 2001-2003 that reduced the BIA from approximately 20 Members to 12 by expelling those of us on the BIA duly appointed by prior AG Janet Reno whose views were considered “too liberal” for Ashcroft;
PWS
04-27-18
Paul says, “The only solution is an Article I U.S. Immigration Court or some other type of structure independent of the Executive.”
That makes no sense to me. The “Refugee Roulette,” as Paul calls it, is the result of a bad immigration judge selections process.
For several years at least, the office of Attorney General Alberto R. Gonzales let political considerations guide the selection of immigration judges. The lawyers selected to be judges were Republicans who had supported the party, such as by making campaign donations. The White House, Republican congressmen, and Republican political appointees selected them.
And for several more years, judges were appointed on the basis of an off-the-record affirmative action program that resulted in the Justice Department paying $11.5 million to settle a class action lawsuit alleging discrimination against white male applicants for immigration judge positions.
During that period, only women and minority lawyers were selected, whether they were qualified to be judges or not. I was at the Board during that period, and read the releases describing the qualifications of the people who were appointed. It wasn’t uncommon for them not to have any immigration experience at all.
Surely some number of the judges from both periods were qualified, but that wasn’t why they were hired. And the existence of the Refugee Roulette indicates to the contrary that
the biased selection process produced an immigration court with a substantial number of judges with questionable qualifications who are strongly biased.
You can’t make these judges more qualified or less biased by elevating the immigration court to Article 1 status. That would just give these judges a higher paycheck and more professional status.
It also would result in higher paychecks and more status for the Board members whose responsibility it was to review the decisions of these immigration judges and make sure they were applying the law correctly.
Can anyone explain to me why the Board has allowed the Refugee Roulette to continue?
I did come across a possible solution when I was doing the research for my article.
It is proposed in, “PLAYING POLITICS at the BENCH: A White Paper on the Justice Department’s Investigation into the Hiring Practices of Immigration Judges,” written by the National Immigration Project of the National Lawyers Guild and Shoba Wadhia, Director of the Center for Immigration Rights at the Penn State School of Law,
https://pennstatelaw.psu.edu/_file/Playing Politics at the Bench 101209.pdf
Reapplication Process for Illegally Hired (i.e., hired for political reasons) Judges and EOIR Assessment
1. The DOJ should require every identified hiree to reapply for his or her position through a merit-based hiring process;
2. All immigration judge vacancies should be filled in accordance with the legal hiring process including minimum qualifications in immigration law;
3. Nation-wide postings requiring the following qualifications should be used for vacancies:
a) U.S. Citizenship;
b) 7 years of relevant post-bar experience, of which 5 years include experience in
immigration practice, teaching, advocacy or litigation; and
c) Knowledge of U.S. immigration laws and procedures.
4. The candidate must possess 2 or more of the following:
a. Substantial litigation experience, preferably in a high-volume content;
b. Experience handling complex legal issues;
c. Experience conducting administrative hearings; or
d. Knowledge of judicial practices and procedures.
What do you think? Good idea? Or do you have a better solution?
With regard to the BIA correcting “Refugee Roulette,” I think there are a number of problems beginning with a weak BIA controlled by the DOJ that seldom asserts itself in favor of Due Process and fairness for asylum seekers.
Leaving that aside, however, a major problem was caused by the misguided “Ashcroft Reforms” at the BIA which removed “de novo” review authority and replaced it with a “clearly erroneous” standard of review. Under that standard, judges are allowed to make conflicting factfindings on functionally identical records and their conflicting rulings will be upheld as long as they are within the zone where “reasonable minds could differ.” Because asylum adjudication is highly “fact specific,” the standard is essentially designed to permit varying results within an overall “zone of reason.”
Ironically, in Matter of A-B- the BIA was properly bringing an “outlier judge” known for his antipathy to female asylum seekers into line with the BIA’s precedent in Matter of A-R-C-G-. Rather than letting the BIA do its job, Sessions interfered in the case, even though neither party had actually requested his review (nor had the BIA). Even the DHS asked Sessions to let the BIA resolve the matter under existing case precedents. But, he ignored the views of both parties.
There is no better example of how this system is broken and must be removed from the DOJ to function in a fair and impartial manner as was originally intended.
PWS
04-28-18
Paul says, “With regard to the BIA correcting “Refugee Roulette,” I think there are a number of problems beginning with a weak BIA controlled by the DOJ that seldom asserts itself in favor of Due Process and fairness for asylum seekers.”
I agree, but the problem should be resolved before consideration is given to establishing a federal court.
I didn’t get into the Board problems in my article or my reply to Paul’s comments, but most of the things I have said about selecting immigration judges apply to the Board too. For instance, when the field was narrowed to hiring republicans for positions as judges, the same criterion was being used to select Board members.
I agree, Nolan, that the BIA is part of the problem. One recent Obama Administration appointment didn’t even come to light until Dan Kowalski & Alissa Wickham over at LexisNexis “smoked it out” by looking at the Senior Management rosters on the EOIR website. I also agree with you that many of the systemic problems at EOIR are related to a “captive” BIA that fails to act as an independent and impartial court dedicated to insuring Due Process (rather than institutional survival or job tenure).
Basically, that’s what happened because of the “Ashcroft Purge.” The Obama Administration chose to perpetrate the problem rather than exposing and addressing it. In the end, I think they found the prospect of a “captive court” that looked to the public like a judicial body but actually was going to be compliant with and support Administration enforcement policies and OIL’s litigation strategy to be a handy device for perpetuating their own authority and immigration enforcement aims.
Believe that the FBA draft would make Appellate Immigration Judges Presidential appointments with Senate Confirmation, equally split between nine GOP and nine Dems. Perhaps not a perfect solution, but at least it would put some transparency and public oversight into the appointeees and their judicial qualifications!
That’s why this system needs a complete overhaul rather than administrative band aids that won’t work. I actually was hired by Reno in part to transform the BIA into an independent court operating within the DOJ. It just didn’t ultimately succeed for reasons relating largely to the structure and inherently political nature of the DOJ, as well as political shifts in Congress.
With due respect, it’s highly unlikely that anyone else will do any better. And, it’s abundantly clear that Sessions wants a “facade court” that actually operates to advance Administration enforcement policies, not to provide Due Process and fairness to migrants.
PWS
04-28-18
Article I makes perfect sense, Nolan. It would solve the problems you raise. What DOESN’T make any sense is leaving the process in a highly politicized and incompetent DOJ that created the problems in the first place.
An Article I system would require a merit based hiring system along the lines of the efficient and generally highly praised merit panels used for selecting US Magistrate Judges and US Bankruptcy Judges.
For example, under the FBA Draft Article I Bill, current IJs could continue to serve for up to two years while recompeting for their jobs under the new merit system. Under the Draft Bill: “Such judges should receive consideration equal to that given all other candidates for the respective positions.” That would address your concerns while giving judges with the best judicial qualifications (regardless of how they were originally selected) a fair chance to compete for their jobs in a merit-based system.
Here’s a link to the FBA Draft Article I Bill:
http://www.fedbar.org/Image-Library/Government-Relations/FBA-Model-legislation-Establishing-an-Article-I-Immigration-Court.aspx
PWS
04-28-18
Paul says, “An Article I system would require a merit based hiring system along the lines of the efficient and generally highly praised merit panels used for selecting US Magistrate Judges and US Bankruptcy Judges.”
That doesn’t require the creation of an Article 1 court. It can be done now by following the suggestion I refer to in my first comment, i.e., just make the judges who were hired without proper qualifications re-apply for their jobs now.
Paul also refers to the FBA Draft Article I Bill.
That idea has been around for a very long time, and it has never gotten any traction in Congress. Moreover, it is even less likely to go anywhere in Congress now. Finding a way to deal with the immigration court backlog crisis is a much more pressing need than the issues used to justify an Article 1 bill, and the FBA Draft Article 1 bill doesn’t do that.
In fact, production would go down during the process of converting the current system into an Article 1 court, and it is far from certain that enough qualified lawyers are available and willing to fill the positions in a 350-judge court, let alone to increase the size of the court. It’s a very difficult, high pressure job and the judges are subject to being placed anywhere in the United States.
The system is broken. It can’t be fixed in the politicized DOJ. That’s particularly true with Jeff Sessions as AG. There is already very credible evidence that Sessions is inserting ideological and political factors improperly into IJ hiring. That’s exactly how we got here in the first place. The idea that a hiring system run by Sessions would be viewed by the public as impartial is preposterous! Sessions is the problem not the solution!
Also, determining which IJs might have been “political hires” long after the fact is both itself subject to abuse and a total waste of time. At this point, folks are either the best qualified to continue as judges at present, or they aren’t. The Article I system will fix that in a fair manner without singling anyone out for improper hiring practices over which they had no control.
That the proper solution — an independent Due Process oriented judiciary — has been ignored by Congress for too long is hardly a reason for not doing the right thing now. It should be a bipartisan no brainer. If Congress doesn’t fix this dysfunctional unfair system, the Article IIIs ultimately will. Congress might not like the results. But it will be their own fault.
And, the process by which the Article IIIs will have to intervene to restore some type of fairness to this out of control mess is guaranteed to aggravate rather than reduce the backlog. It actually would be in Sessions’s and everyone else’s best interests to have a fair, efficient, independent Immigration Court. He’s just to biased to see the real public interest here!
PWS
04-28-18
Paul says, “The system is broken. It can’t be fixed in the politicized DOJ. That’s particularly true with Jeff Sessions as AG. There is already very credible evidence that Sessions is inserting ideological and political factors improperly into IJ hiring. That’s exactly how we got here in the first place. The idea that a hiring system run by Sessions would be viewed by the public as impartial is preposterous! Sessions is the problem not the solution!”
That may be true, but what purpose does it serve to say it? Does anyone expect Sessions to see the light, admit that he is wrong, and promise to do things the right way from now on?
Paul says, “Also, determining which IJs might have been “political hires” long after the fact is both itself subject to abuse and a total waste of time. At this point, folks are either the best qualified to continue as judges at present, or they aren’t. The Article I system will fix that in a fair manner without singling anyone out for improper hiring practices over which they had no control.”
But that process can be performed now. It isn’t necessary to elevate the status of the immigration court first.
And it isn’t about identifying and removing political hires. It’s about identifying and removing judges who are granting or denying the vast majority of their asylum cases on the basis of an improper application of the law. The ones who have made the fate of asylum applicants depend on the luck of the draw.
I may have indicated that they are the ones who were not qualified to be an immigration judge when they were hired, but that isn’t necessarily true. They could be highly qualified but too biased to apply the law objectively. But as I said in my article, the Board is already tracking judges who are at the extremes on granting or denying asylum applications. It might not be difficult at this point to identify the judges who aren’t applying the law correctly.
Paul says the fact that bills to create an independent Due Process oriented judiciary have been ignored by Congress for too long is hardly a reason for not doing the right thing now. It should be a bipartisan no brainer.
Who was it that said the definition of insanity is doing the same thing over and over again and expecting a different result? Immigration advocates can continue to advocate bills to raise the pay and professional status of the judges in a broken immigration court system if they want to waste their time. But it is irrational to expect congress to pass such a bill without having to change it to make it more appealing to both parties.
Paul says, “If Congress doesn’t fix this dysfunctional unfair system, the Article IIIs ultimately will. Congress might not like the results. But it will be their own fault.”
First, I don’t think the Article III courts can fix the immigration court system, or that they have any interest in doing it anyway.
Second, congress can undo whatever the Article III courts do by passing a law that creates a new immigration court system, the way Trump issued new travel bans until he got it right.
Unless congress exceeds its authority or violates the constitution, there isn’t much the Judicial branch of government can do.
Paul says, “It actually would be in Sessions’s and everyone else’s best interests to have a fair, efficient, independent Immigration Court. He’s just to biased to see the real public interest here!”
That’s typical of the democratic approach to immigration reform. Explain why the republicans are wrong and then call them names when they don’t change what they are doing. How has that approach been working with Trump?
If Paul wants to make a proposal that the republicans might consider, he needs to forget about having “a fair, efficient, independent Immigration Court.” The republicans want to eliminate the backlog and efficiently remove deportable aliens who can’t establish that they are eligible for and merit some kind of relief from deportation. The trick is to propose a system that would achieve both objectives.
Although I agree with Nolan that neither the present Congress nor Jeff Sessions are likely to agree to more funding primarily intended to improve quality of justice for immigrants, their word is not final, neither has a lifetime appointment.
And as far as Congress goes, the heavily gerrymandered 2018 midterms will likely return he Democrats to a House Majority, 2020 is a Presidential Election year, and 2022 presumably will reflect a 20-30 gain for urban Democrats .Trump’s 2018 unpopularity will help elect the legislators who will draw up the new congressional boundaries.
Unless overconfident Democrats resume ranting about Transgender bathrooms and Climate Change, sneering at Flyover Country. .
I would never underestimate the electoral incompetence of the Democrats. Particularly after 2016. Although they represent the majority of Americans, and the best interests of all Americans, they have managed to be “locked in the legislative broom closet” from coast coast to coast. Even now, they lack both dynamic leadership on the national level and a clear message other than “we’re not Trump.” We saw how well that worked in 2016. The Dems run for office like the GOP governs: they take all of the mistakes of the past and double down on them.
As Yogi said: “Can’t anybody here play this game?”
Let’s hope so. But, Trump has lied, looted, been openly racist, homophobic, Islamophobic, and is essentially handing our country to Putin on a silver platter. Yet, 40% of Americans still support him. That’s sobering, disturbing, and a reminder to Dems that “it ain’t over till it’s over.” Also, if Trump does avoid getting snookered by the Supreme Leader, that’s likely to boost his popularity.
PWS
04-30-18