A CONCEPTUAL PROPOSAL FOR AN AUXILIARY IMMIGRATION JUDICIARY

 

By

 

Paul Wickham Schmidt, Retired U.S. Immigraton Judge and Former Chair, U.S. Board Of Immigration Appeals

 

&

 

Thomas Lister, Retired Wisconsin Circuit Judge

 

 

 

Drawing on our judicial expertise gained over decades of working in both Federal and State judicial system, we respectfully set forth a concept for those working in the legislative, political, legal, and judicial systems to use and further develop to promote better, fairer, and more efficient judicial decision-making and to make better use of existing and future judicial resources both in and outside the U.S. Immigration Court system.

To save time, and since neither of us purports to be a legislative draftsperson, instead of submitting a “draft bill,” or the “outline” of such a bill, we advance an idea and the conceptual and practical justifications for it for your consideration and future use in drafting actual legislation.

 

No knowledgeable individual thinks the current dysfunctional U.S. Immigration Court system can continue without imploding. Just feeding more new, permanent Immigration Judges into an unfair and broken system actually is making things worse as well as outrageously wasting our taxpayer money at a time when deficits are skyrocketing.

 

All too many newly hired Immigration Judges appear to be neither the best qualified to be judges nor, even if qualified on paper, properly trained in how to deliver “full due process with efficiency” under the immigration laws and in strict compliance with the Due Process Clause of our Constitution.

 

On the other hand, many retired judges from other Federal and State systems have proven expertise and track records that would allow a competent judicial administrator (there are, to our knowledge, NONE of these currently in DOJ or EOIR) to determine if they are suitable for emergency service and how they could best be trained to effectively and efficiently use their skills as “Auxiliary Immigration Judges” to augment the current and future Immigration Judiciary. 

 

Moreover, since most retired Federal and State judges already have adequate pensions or other means of support, asking them to volunteer to serve on the basis of limited compensation, or even just reimbursement for out of pocket expenses, would not be unreasonable.

 

We are offering this idea as a way in which those of us with lifetime legal and judicial expertise can use it to improve the delivery of justice in America; it is not intended as a means of enriching or offering alternative full-time employment to current retired judges, from any system.

 

To name just a few areas of “low hanging fruit,” we believe that:

 

•       Most bonds;

•       Initial “Master Calendars” (arraignments);

•       Master Calendar scheduling for Individual Hearings;

•       Motions Calendars;

•       “Status” Calendars;

•       Stipulated Final Order and Withdrawal Calendars;

•       Individual Hearings on Cancellation of Removal for long-time lawful and unlawful residents;

•       Uncontested Adjustments of Status and other types of equitable waivers; and

•       Voluntary Departure as the sole application cases

 

have elements in common with most other types of judicial work.

 

Using Auxiliary Judges for such cases would allow those judges, from any Federal or State system, with sound work records, that is, those with impeccable reputations for fairness, professionalism, judicial efficiency, and impartiality, to handle these types of immigration adjudications with a modest amount of additional training and in close consultation and cooperation with the sitting Immigration Judges in a particular location.

 

In this respect, our emphasis would always be on aiding existing, sitting U.S. Immigration Judges, in cooperation with them and at their request, in the ways those sitting judges deem most helpful, fair, and effective.

 

It would never be on fulfilling inappropriate and unethical “production quotas,” numerical goals, or pandering to interests who want to use the judicial system to fulfill political or law enforcement objectives inconsistent with Due Process, fundamental fairness, or sound judicial administration.

 

We do not propose that “Auxiliary Judges” ever work directly for or under the supervision of non-judicial political officials as is now, disturbingly, the case in our Immigration Court System. Indeed, the current unwarranted attack on the independence and professionalism of Immigration Judges by unqualified political officials seeking to “decertify” the Immigration Judges’ professional association, the National Association of Immigration Judges, is a prime example of the type of counterproductive activity in which “Auxiliary Judges” should never be allowed to participate, in any way.

 

By contrast with the types of more straightforward judicial work described above as potential “low hanging fruit,” Asylum Cases, Withholding of Removal Cases, and applications for protection under the Convention Against Torture involve complex legal and factual issues. These are matters that should NOT be delegated to retired judges from other fields.

 

Indeed, one huge advantage of our proposal is that it would allow existing and future Immigration Judges to spend adequate time (a contested fair hearing on any of these aforementioned protection matters would take a well-trained judge 3-4 hours, minimum) on these types of cases and to receive more and better training on how to fairly and timely adjudicate, consistent with Constitutional Due Process, claims for protection under these laws and International Conventions.

 

Of course, there would be some administrative costs involved with training and maintaining a list of those willing to serve as “Auxiliary Immigration Judges.” But, they pale in relation to the costs of continuing to throw new permanent positions into a badly broken and dysfunctional system.

 

Indeed, some, such as the ABA Commission on Immigration, have observed that additional Immigration Judge hiring under current conditions has demonstrably been a waste of taxpayer money that has actually made the system worse and further impaired the delivery of Due Process to those vulnerable individuals whose lives depend on fair, professional, and efficient administration of Due Process and fundamental fairness in our Immigration Courts.

 

Sadly, we surmise that significant amounts of the “assembly line (in)justice” currently being encouraged and delivered to represented individuals in today’s Immigration Courts will eventually have to be re-adjudicated by orders of the Article III reviewing courts because of legal and/or factual errors. The only reason we don’t include unrepresented individuals in our equation is that these, unfortunately, are often “railroaded” out of our country without realistic access to the Article III Courts.

 

As lawyers with a combined 90 years of experience working in State and Federal justice systems, as prosecutors, judges, private litigators, educators, and government officials, at both the national and local level, we cannot in good conscience watch the continued deterioration of justice in the Immigration Courts while constructive ideas for improvements and efficiency and fairness are ignored or left unaddressed.

 

The concept of using retired State and Federal Judges outside the Immigration System to do certain types of cases to augment justice and relieve the incredible stress on full time Immigration Judges, in times of emergency or workload surges, without all the problems inherent in the current hiring of permanent judges by the DOJ, easily could be incorporated into one of the “Independent Article I Immigration Court” bills being advocated and advanced by groups such as the ABA, FBA, AILA, and the National Association of Immigration Judges (“NAIJ”).

 

The current system is dying before our eyes. We need to “pull out all the stops,” consider “every potential concept,” and utilize “positive professional creativity” (the antithesis of the negative energy devoted to cruel and counterproductive “gimmicks” and outright illegal actions) designed to enhance, rather than denigrate, Due Process, fundamental fairness, and judicial efficiency without sacrificing quality.

 

It is in that spirit that we respectfully request those involved in legislative reform of our Immigration Court system to consider incorporating our concept of an “Auxiliary Immigration Judiciary” into overall legislative proposals for positive reform of the Immigration Courts now being advanced by all of the leading voices in the field.

Respectfully submitted,

Thomas Lister, Middleton, WI

Paul Wickham Schmidt, Alexandria, VA

August 19, 2019