“One thing however is clear. Trump’s recent efforts to use blunt executive power to close our borders and prepare the way for deporting large numbers of undocumented immigrants are confronting far-reaching problems. Not only is there opposition from federal judges, the business sector, civil liberties groups, and others. There is also a major roadblock from another quarter: our already broken system of immigration laws and immigration courts.
The nation’s immigration laws needed repair long before Trump came to office. Even without the measures taken by the new administration, immigration courts face a backlog of hundreds of thousands of cases, while the existing detention system is plagued, not just by arbitrary arrests, but also by deep problems in the way immigrant detainees are handled by our courts, one aspect of which is the subject of a Supreme Court challenge.
But will the potential Trump excesses—driven by the president’s fear mongering about immigrant crimes and the alleged potential for terrorists to pose as refugees—be enough to light a fire under a Republican-led Congress that has for years balked at immigration reform?
. . . .
For better or worse—and it may turn out to be worse if Congress continues to refuse to act—the Trump administration’s determination to enforce current laws has pushed long-standing inequities in immigration justice onto the front pages.
Take the matter of those immigration judges, who now number some three hundred and are scheduled to grow substantially under the Trump administration. In April 2013, the National Association of Immigration Judges issued a scathing report pleading for omnibus immigration reform. Describing the morale of the immigration judge corps as “plummeting,” the report found that “the Immigration Courts’ caseload is spiraling out of control, dramatically outpacing the judicial resources available and making a complete gridlock of the current system a disturbing and foreseeable probability.”
The judges also noted that, “as a component of the DOJ [Department of Justice], the Immigration Courts remain housed in an executive agency with a prosecutorial mission that is frequently at odds with the goal of impartial adjudication.” For example, the judges are appointed by the Attorney General and “subject to non-transparent performance review and disciplinary processes as DOJ employees.” As a result, “they can be subjected to personal discipline for not meeting the administrative priorities of their supervisors and are frequently placed in the untenable position of having to choose between risking their livelihood and exercising their independent decision-making authority when deciding continuances”—the postponement of a hearing or trial.
The immigration judges writing this complaint were working under the Obama administration Justice Department, with Eric Holder as attorney general. What will their situation be like with Attorney General Jeff Sessions, a believer in tighter immigration controls, as their boss?
As it is now, an immigration judge’s job is exhausting. They carry an average load of 1,500 cases, but have minimal staff support. In the 2013 report, the immigration judges noted that they have no bailiffs, no court reporters, and only one quarter of the time of a single judicial law clerk. The backlog of immigration cases in the United States now stands at roughly 542,000. Most important, the immigration judges claim some 85 percent of detained immigrants appearing before them are unrepresented by counsel.
Meanwhile, another pending lawsuit highlights a different long-running problem concerning our nation’s immigration judges. In June 2013, the American Immigration Lawyers Association, along with Public Citizen and the American Immigration Council (AIC) filed a case in federal district court in Washington, D.C., seeking documents that would disclose whether the federal government adequately investigated and resolved misconduct complaints against immigration judges.
Such complaints have been widespread enough that the Justice Department reports annually on the number. In fiscal 2014, the latest figures published, there were 115 complaints lodged against 66 immigration judges. Although 77 were listed as resolved, the outcomes are not described.”
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This timely article was brought to my attention by my good friend and former colleague retired U.s. Immigration Judge (NY) Sarah Burr. Walter Pincus is a highly respected national security reporter. He’s not by any means an “immigration guru.”
As I have pointed out in previous blogs and articles, this problem is real! In the absence of sensible, bipartisan immigration reform by Congress, which must include establishing an independent immigration judiciary, our entire Federal Justice System is at risk of massive failure.
Why? Because even now, immigration review cases are one of the largest, if not the largest, components of the civil dockets of the U.S. Courts of Appeals. As due process in the Immigration Courts and the BIA (the “Appellate Division” of the U.S. Immigration Courts) deteriorates under excruciating pressure from the Administration, more and more of those ordered removed will take their cases to the U.S. Courts of Appeals. That’s potentially hundreds of thousands of additional cases. It won’t be long before the Courts of Appeals won’t have time for anything else but immigration review.
In my view, that’s likely to provoke two responses from the Article III Courts. First, the Circuits will start imposing their own minimum due process and legal sufficiency requirements on the Immigration Courts. But, since there are eleven different Circuits now reviewing immigration petitions, that’s likely to result in a hodgepodge of different criteria applicable in different parts of the country. And, the Supremes have neither the time nor ability to quickly resolve all Circuit conflicts.
Second, many, if not all Courts of Appeals, are likely to return the problem to the DOJ by remanding thousands of cases to the Immigration Courts for “re-dos” under fundamentally fair procedures. Obviously, that will be a massive waste of time and resources for both the Article III Courts and the Immigration Courts. It’s much better to do it right in the first place. “Haste makes waste.”
No matter where one stands in the immigration debate, due process and independent decision making in the U.S. Immigration Courts should be a matter of bipartisan concern and cooperation. After all, we are a constitutional republic, and due process is one of the key concepts of our constitutional system.
PWS
03/02/17
