Yale Law
BUREAUCRATS IN ROBES: IMMIGRATION “JUDGES” AND THE TRAPPINGS OF “COURTS”
AMIT JAIN*ABSTRACT
As U.S. immigration policy and its human impact gain popular salience, some have questioned whether immigration courts—often the first-line adjudicators of deportation—are “courts” at all in the American adversarial legal tradition. This Article aims to answer this question through a focus on the role of the immigration judge (IJ). Informed by in-depth interviews with twelve former IJs and three former supervisory officials, I argue that immigration courts present with superficial hallmarks of adversarial courts, but increasingly exhibit core features of a tightly hierarchical bureaucracy. Although not all features of an immigration bureaucracy are inherently unde- sirable, masking a bureaucracy with judicial trappings results in a deceptive facade of process that likely limits scrutiny from federal courts and calms public discontent with harsh immigration laws. In light of this phenomenon, enhancing IJ independence through the creation of an Article I immigration court would solve some problems with immigration adjudication but risk papering over others. Instead, achieving a fair system will require both procedural and substantive reforms.
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Read Amit’s full article at the above link.
Yes, I recognize that Amit undercuts my arguments for an immediate halt of this system and change to Article I without waiting for other reforms to “humanize” immigration law and put them more in line with the actual national perception of immigrants (which, as Amit points out, is nowhere near as racist and inhuman as Trump’s White Nationalist restrictionist abomination now being peddled by Trump, Pence, many in the GOP, at DHS, and most disturbingly, at DOJ. For example, most Americans would favor taking care of “Dreamers” now, without all the restrictionist “poison pills” attached). I agree that other practical and humanizing reforms are necessary; but without immediate Immigration Court intervention and reform every other immigration reform becomes meaningless and innocent people will continue to die, be tortured, and be abused “on our watch.”
Immigration Court reform can’t wait! Every day, the statute, our Constitution, international treaties, our national values, and human dignity are being mocked and destroyed by what is happening in our Immigraton Courts under the “Minister of Injustice” Bill Barr and his lawless and spineless sycophants in EOIR Management.
It’s past time for the Article III Courts to stop screwing around, do their Constitutional duty, and put a screeching halt to this abomination and blot on our national conscience. Stop these “Fake Courts” in their tracks!
No more “removal orders” until Congress creates an independent Immigration Court system that passes legal and Constitutional muster and complies with our treaty obligations. And, until that happens, the DOJ should be forbidden from any further meddling in the Immigration Courts. If the Immigration Court System is to continue to operate on an interim basis, it should be under an “Order of Supervision” from Article III Circuit Judges just as was done with Constitutionally deficient and defiant school systems in the South following Brown.
Either that or the Article III Courts should appoint an active or retired Article III Judge as a “Special Master” with authority to insure fair, impartial, and legal operation until Congress corrects these flaws.
Allowing human beings to be “degraded and railroaded” back to life threatening situations, often after having been abused, humiliated, threatened and mistreated by so-called “judges” and their White Nationalist overlords is no laughing matter! It’s a national disgrace, the elimination of which should be our highest national priority!
PWS
06-12-19