Deputy Attorney General Rod J. Rosenstein Delivers Opening Remarks at Investiture of 31 Newly Appointed Immigration JudgesWashington, DC~
Friday, March 15, 2019
Thank you, James, for that kind introduction. I appreciate your devoted service to the Department of Justice.
I also want to thank Deputy Chief Judges Santoro and Cheng, and Assistant Chief Judges Doolittle, Owen, Mart, and Weiss.
I am grateful to Marcia Lee-Sullivan and Karen Manna for helping to plan this event.
Above all, I want to congratulate our 31 new immigration judges for joining the Executive Office for Immigration Review, and welcome the family members and friends who are with us today.
I took my first oath as a Department of Justice employee in 1990. I hope it is as meaningful to you as it is to me. They have sworn me in several more times over the past three decades. But they never swear you out.
The oath obligates you to support and defend the Constitution. Our nation was not united by race, ethnicity, religion, or even national origin. The founders’ goal of bringing peoples of the world together in a single nation is reflected in the motto adopted at the founding of our Republic: e pluribus unum: from the many, one. Our one nation is unified by our shared commitment to the principles of the United States Constitution. The preamble sets forth, among its primary goals, to “establish Justice.” Justice – or the fair application of the rule of law – is the essence of America.
The right to live and work in America is a tremendous privilege. It is a valuable privilege. It is a privilege that has meaning only if we exercise our right and duty to protect it by setting rules for people who seek to acquire the privilege.
It is right and proper for us to insist that people who desire to join our nation – people who want themselves and their children to join the privileged group who define ourselves as “we, the people” – start by following the rules governing admission and citizenship.
The duties imposed by your oath of office include faithfully enforcing those rules.
America’s immigration laws are generous and welcoming, but they are intended to protect the rights and advance the interests of current and future citizens.
More than a century ago, Theodore Roosevelt remarked that “[t]he average citizen must be a good citizen if our republics are to succeed. The stream will not permanently rise higher than the main source; and the main source of national power and national greatness is found in the average citizenship of the nation.” Roosevelt did not limit his remarks to birthright citizens. He said, “We must in every way possible encourage the immigrant to rise …. We must in turn insist upon his showing the same standard of fealty to this country and to join with us in raising the level of our common American citizenship.”
Obeying the law when seeking entry to the United States is an essential component of “fealty to this country.”
Estimates suggest that there are more than 44 million people in our country who were not American citizens at birth. That is almost 14 percent of our population, the largest share in more than a century. America’s foreign-born population exceeds the total population of California, our most populous state, and it is larger than the entire population of Argentina.
Those numbers continue to grow. Every year, we generously extend lawful permanent resident status to more than one million people, and we allot hundreds of thousands of student visas and temporary work visas.
It is no surprise that so many people want to join us. According to the World Bank, nearly half of the world lives on less than $5.50 per day. According to a recent Gallup poll, 150 million people around the world want to immigrate to the United States. We cannot take them all.
For our system to be fair, it must be carried out faithfully and equitably. It must be fair to all who desire to come here — whether they live south of our border or an ocean away.
Immigration judges appointed by the Attorney General and supervised by the Executive Office for Immigration Review are not only judges. First, you are not only judges because you are also employees of the United States Department of Justice. It is a great honor to serve in this Department. In the courtyard just outside the entrance to this Great Hall, high up on the interior wall of the Main Justice building, there is a depiction of the scales of justice and an inscription that reads, “Privilegium Obligatio.” It means that when you accept a privilege, you incur an obligation. In this Department, our duty is in our name. We are the only cabinet agency with a name that articulates a moral value.
Justice is not measured by statistics. Our employees learn from day one that their duty is to gather the facts, seek the truth, apply the law, and respect the policies and principles of the Department of Justice.
The second reason that you are not only judges is that in addition to your adjudicative function – finding facts and applying laws – you are a member of the executive branch. You follow lawful instructions from the Attorney General, and you share a duty to enforce the law.
You take office at a critical time. The number of immigration cases filed each year is rapidly increasing. In February, the Department of Homeland Security apprehended 66,000 aliens who unlawfully entered our country between ports of entry along the southwest border. On average, our colleagues at the Department of Homeland Security encounter about 3,000 aliens every day along the southern border.
Most of them cross the border unlawfully, between points of entry. They chose not to follow the law. Because they do not follow the law, many of them expose themselves and their children to exploitation and abuse. Many pay criminal smugglers because they know that they might not be allowed to enter lawfully. Nonetheless, our legal system protects them.
The massive influx of aliens who arrive in America illegally and invoke due process rights under our law creates a staggering volume of immigration cases that require resolution.
The primary factor driving the increasing backlog is the significant increase in asylum applications. Asylum applications have more than tripled in less than five years.
Our asylum system was established in the aftermath of World War II. America seemed to have limitless space at that time, and the goal was to protect minority groups from persecution by foreign states, the kind of persecution that the world witnessed during World War II and which was prevalent at that time in the purges conducted by our erstwhile ally, the Soviet Union.
The law authorizes asylum only for victims who suffered persecution or have a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or because of their political opinion.
Other reasons for seeking to immigrate may be rational and even laudable. We certainly understand why foreigners wish to come to America in search of better opportunities for themselves and their children. America is a great nation that does not need walls to keep its citizens from leaving, like the Soviet Union. We build walls only to protect ourselves and enforce our rules.
The duty of our immigration judges is to honestly find the facts and faithfully apply the laws, so that people obtain asylum only if they qualify for it under the statute.
We are taking steps to address the massive influx of cases. We are hiring more judges; we are holding more hearings; and we are completing more cases, more quickly.
Since President Trump’s inauguration, the Department of Justice has hired more immigration judges than in the previous seven years combined. We now employ the largest number of immigration judges in history. There are 48 percent more immigration judges than three years ago, and 71 percent more than five years ago.
And we are finding innovative ways to become more efficient. For example, the Department has had great success using video teleconference technology, which enables judges to share the case burden with one another across the country.
We will look for other ways to become more efficient and more effective. But ultimately we are depending upon you, both to perform your duties expeditiously, and to let us know when you identify opportunities for improvement.
One of my favorite management parables is about a child who watches her mother prepare a roast beef. The mother cuts the ends off the roast before she puts it in the oven. The child asks why. The mother says that she learned it from her mother. So the child asks her grandmother. The grandmother explains, “When your mother was a child, I cut the ends off because my pan was too small to fit the whole roast beef.”
The moral is that the solutions of the past are not necessarily the right solutions today. Circumstances change. Sometimes we need to reconsider assumptions and realign our practices to achieve our goals. The movie “Moneyball,” based on a book by Michael Lewis, summarizes the lesson in three words borrowed from Charles Darwin: “Adapt or die.” Some of the best ideas to enhance efficiency come from relatively new employees who are not accustomed to existing bureaucratic rules. If you think you know a better way to accomplish our mission, please speak up and let us know.
Our challenges are daunting. But you can be part of the solution.
Whether the immigration backlog continues to grow depends in large part on how immigration judges discharge their duties.
We chose you because of your qualifications, your legal skills, and your personal integrity. We believe that you are ready for this challenge.
Thank you for your willingness to serve, and welcome to the Department of Justice.
*********************************************
There were a few good things about Rosenstein’s presentation:
- As I had predicted would happen under Barr, he improved the tone by ditching the overt appeals to White Nationalism, racist dog whistles, and misogyny present in most of Sessions’s rhetoric:
- He also dropped the vicious, disingenuous attacks on the private bar that were a staple of Sessions’s anti-immigrant screeds;
- He at least acknowledges that immigrants are a large permanent part of our society, although downplaying the truth that, contrary to Stephen Miller and other Trump restrictionists, we are, in fact, a “nation of immigrants;”
- He acknowledges the obligation to be “fair to all who desire to come here — whether they live south of our border or an ocean away;”
- He at least grudgingly recognizes that all who come here are entitled to certain protections under our legal system regardless of the circumstances of entry (something that the DOJ and the Administration actually have failed to respect in practice);
- He also recognizes another truth that his Department often chooses to ignore — “Justice is not measured by statistics.” — Indeed, it is not — so why have mindless “quotas” that nobody working in or familiar with the system would have recommended? Why cite largely meaningless statistics about the number of individuals who would like to come here but never will?
But, there was also lots NOT to like:
- Rosenstein mangles the oath of office; federal employees like Immigration Judges swear to uphold the Constitution against all enemies foreign and domestic — they DON’T swear to uphold or carry out the policies of the Attorney General (many of which have actually been found in violation of the law);
- He creates a bogus “test” of “legal entry” as a demonstration of “fealty to our country;” there is no such equivalency or “second class citizenship.” — Although our system understandably often favors those who enter legally, there are a number of provisions that allow individuals who did not do so to eventually be granted citizenship, including those who are granted asylum; I am aware of no information that shows that manner of entry into the U.S. has any effect on one’s “fealty” or performance as a citizen; indeed, as a “native born U.S. citizen,” Rosenstein, like many of us, did nothing whatsoever personally to show his “fealty” or “earn” his citizenship — he was just lucky like we were;
- Rosenstein keeps referring to “enforcement;” but Immigration Judges are NOT “law enforcement officers;” they are supposed to be fair and impartial quasi-judicial adjudicators; “enforcement” is the job of DHS and other parts of the DOJ (a glaring conflict of interest);
- DHS officials are not the Immigration Judges’ “colleagues” to any greater extent than are lawyers in private practice or the individuals coming before the Immigration Courts; DHS is a “party” before the court and should be treated as such;
- Rosenstein mis-states the history of our refugee laws. While the 1951 Convention was a response to World War II, the U.S. never became a party. We did sign the 1967 Protocol which was intended to update and expand the Convention and refugee law and move it beyond the immediate post-WWII aftermath. Our first codification of refugee and asylum law, the Refugee Act of 1980, was specifically intended to eliminate the types of ideological and geographical biases that had previously been a facet of our law; Rosenstein wrongfully implies that judges should interpret refugee law with a focus on a bygone era rather than considering refugee law, in the dynamic, protection-oriented manner it was intended, in the contexts of today’s world, where persecution based on gender is one of the major refugee producing factors;
- Rosenstein cites televideo as a helpful “innovation;” televideo is hardly new; but the often inept way in which it has been implemented and used by EOIR means that it often has actually fueled, rather than solved, “Aimless Docket Reshuffling” as shown in this very recent report from Beth Fertig at WNYC: https://immigrationcourtside.com/2019/03/15/beth-fertig-the-gothamist-mismanaged-immigration-courts-failed-technology-results-in-cancelled-hearings-more-aimless-docket-reshuffling-that-needlessly-impedes-due-process-ad/ Most of us who have actually worked in the system would say that while better televideo and a corps of “senior” and “reserve” judges might prove useful in many circumstances, they are least suitable and helpful for contested merits asylum cases;
- Rosenstein neglects to mention the glaring failure of DOJ/EOIR to deliver on an even more important piece of technology for both the judges and the parties: e-filing which has been under development for nearly two decades without producing a functional product — a stunning piece of administrative incompetence by any standard and one that has helped contribute to the “Aimless Docket Reshuffling” that plagues this dysfunctional system;
- Rosenstein use of the term “generous” to describe legal immigration policy under Trump is outrageous; in a time of a growing worldwide refugee crisis, this Administration has cruelly and irrationally reduced refugee admissions to the lowest rate since the enactment of the Refugee Act of 1980, while discouraging and placing bureaucratic roadblocks to discourage other forms of legal immigration, and intentionally misconstruing and perverting the law to make it more difficult for abused women from Central America to qualify;
- Rosenstein fails to acknowledge that “forced migrants” are just that; they often enter illegally because they have little other choice, particularly when the Administration intentionally “slow walks” the applications of those who apply at legal ports of entry, forces those who have shown “credible fear” to remain in dangerous conditions in Mexico, and encourages smugglers to “turn in” individuals between ports of entry to avoid the Trump Administration’s short-sighted and arguably illegal policies;
- Walls are not a symbol of strength as posited by Rosenstein; they are symbols of fear and loathing; in the USSR’s case it was directed at their own citizens; for the Trump Administration, walls are symbols of fear of Mexico, Mexicans, other Latin Americans, immigrants generally, and inferentially the real target — Hispanic citizens and all people of color in the U.S.;
- Rosenstein’s final piece of jaw-dropping hypocrisy is to solicit solutions from the “new judges” to problems thrust on them by his Department’s malicious incompetence. Gimme a break, Rod! This Administration, like the last several, has made a point of ignoring any solutions generated from those who actually hear the cases in favor of those imposed to meet political goals that often undermine due process and judicial efficiency. Just ask the NAIJ how “receptive” the Trump DOJ has been to constructive suggestions. Ask almost any Immigration Judge about the idiotic and demeaning “case quotas” imposed on them over their objections. Moreover, this Administration has been “outed” in FOIA requests and court cases for ignoring well-supported fact-biased recommendations of career civil servants with expertise in various fields in favor of a preconceived racist, White Nationalist, restrictionist political agenda. Save your breath and ideas folks, for a future time after we get some much-needed “regime change” and the return of rational, unbiased, solution-oriented administration of justice instead of ideologues and their apologists like Rosenstein.
Rosenstein is on his way out the door at the DOJ. He’ll leave behind a mixed legacy. He’ll deserve great credit for protecting the Mueller investigation from Trump’s various attempts to interfere and compromise it. On the other hand, he drafted the infamous “pretext memo” which was part of the ultimately unsuccessful attempt to cover up Trump’s real real reason for firing FBI Director Jim Comey.
His failure to stand up for judicial independence, fairness, and due process for vulnerable individuals coming before our U.S. Immigration Courts and his continuing defense of the Administration’s indefensible and harmful White Nationalist immigration agenda will go down as one of his lesser moments.
America needs an independent Article I U.S. Immigration Court where judges act fairly and impartially and owe allegiance to the U.S. Constitution, not the Attorney General or any other political official.
PWS
03-18-19
