Go on over to ImmigrationProf Blog at the above link for all of the links necessary to get the abstract as well as the full article. Among the many current and former Immigration Judges quoted or cited in the article are Jeffrey Chase, Ashley Tabaddor, Dana Marks, Lory Rosenberg, Robert Vinikoor, and me. (I’m sure I’m missing some of our other colleagues; it’s a very long article, but well worth the read.)
In an article full of memorable passages, here is one of my favorites:
Full enforcement of the law requires full enforcement of provisions that grant protection as well as provisions that restrict border entry. This is the part of “enforcement” that the Department of Justice is not equipped to fully understand. The agency’s fundamental commitment to controlling unauthorized immigration does not allow it a neutral, open position on asylum questions. The foundational separation and balance of powers concerns at the heart of Chevron require courts to recognize that inherent conflict of interest as a reason Congress is unlikely to have delegated unchecked power on refugee protection to the prosecuting agency. In our constitutional structure, the courts stand as an essential check on the executive power to deport and must provide robust review to fully enforce the congressional mandate to protect refugees. If the courts abdicate this vital function, they will be abdicating their distinctive role in ensuring the full enforcement of all of our immigration law—including those provisions that seek to ensure compliance with our international obligations to protect individuals facing the danger of persecution.
This is a point that my friend and colleague Judge Lory Rosenberg made often during our tenure together on the BIA. All too often, her pleas fell on deaf ears.
The now abandoned pre-2001 “vision statement” of EOIR was “to be the world’s best administrative tribunals, guaranteeing fairness and due process for all.” Nothing in there about “partnering” with DHS to remove more individuals, fulfilling quotas, “sending messages to stay home,” securing the border, jacking up volume, deterring migration, or advancing other politically motivated enforcement goals. Indeed, the proper role of EOIR is to insure fair and impartial adjudication and Due Process for individuals even in the face of constant pressures to “just go along to get along” with a particular Administration’s desires to favor the expedient over the just.
Under all Administrations, the duty to insure Due Process, fairness, full protections, and the granting to benefits to migrants under the law is somewhat shortchanged at EOIR in relation to the pressure to promote Executive enforcement objectives. But, the situation under the xenophobic, disingenuous, self-proclaimed “Immigration Enforcement Czar” Jeff Sessions is a true national disgrace and a blot on our entire legal system. If Congress won’t do its job by removing the Immigration Courts from the DOJ forthwith, the Article III courts must step in, as Maureen suggests.
PWS
08-23-18