Our nation’s immigration court system is at ground zero of the current immigration debate, yet it is one of the most misunderstood pieces of the multifaceted puzzle that the American public must solve in order to address the issue of immigration reform. Action should be taken to protect these unique courts from politicization or they will be further crippled by dysfunction, our national image will be irreparably tarnished, and meaningful solutions to the immigration dilemma facing our nation will continue to evade us.
The immigration court system is often the only face of American justice that noncitizens see. How can we show the superiority of our form of government and rule of law if we fail to provide due process in this context? Our immigration laws provide such safeguards, but they are undermined when we take shortcuts or allow exigencies of the moment to erode well-established safeguards developed in times of calmer deliberation.
Under the provisions of a notoriously complicated statute (frequently compared to the tax code), immigration judges are the trial-level judges who decide whether people are in the United States in violation of law, and if so, whether they should be allowed to remain here. Despite the life-altering consequences of these decisions, 40 percent of people in our courts do not have attorneys to represent them, a figure that rises to 85 percent for the individuals held in detention during their trials.
This low level of attorney representation stems from the fact that removal proceedings are considered civil matters where there is no right to appointed counsel. Yet, the stakes in our courtrooms are incredibly high. Cases may end in deportation to a country where the deported may be murdered; in deportation of people who have lived here for most of their lives, separating them from their U.S. citizen families, friends, and employers; or in a ten-year separation of spouses because a waiver is not approved.
Immigration courts are struggling under an avalanche of cases: There is a backlog of more than 542,000 at last count, but there are only 292 immigration judges who preside over the hearings. (Another 20 of the judges are supervisors and managers with virtually no dockets.) Yet, in spite of this overwhelming caseload, the pace of filling the 62 current openings has been glacial. Several experts advocate doubling the present number of immigration judges, and the current White House proposal would raise the total number by an additional 75 by the end of 2018. To those of us working in the courts now, full staffing is an elusive and distant dream.
Compounding the dysfunction inherent in a dramatically under-resourced court, immigration judges are now being assigned to remote locations in order to fulfill President Trump’s executive order and present a show of force at the border. Some judges have been given as little as 48 hours’ notice, leaving behind weeks of cases that may have been pending for years. Initiatives such as this take meaningful docket management out of the hands of the judges who are handling these cases, and relegates it to bureaucrats who are beholden to political priorities rather than the necessities of due process and the provisions of existing law.
The consequences have been chaotic. Judges are not being allowed to complete cases that are ready to be done, and instead are hearing cases that are not ready to be tried, because the defendants need time to try to search for lawyers or obtain documentation to support their case on their own. Thousands of dollars and hundreds of manpower hours are being spent to reshuffle the immigration court dockets to comply with this directive, yet there is little to show for the effort.
Indeed, as a result of this directive, fewer cases are being brought to completion. Even worse, the cases that we are being taken away from tend to be those involving more serious offenses. The judges who have been detailed to the border have had not been able to hear and decide cases involving people with multiple convictions for drunk driving; convictions for domestic violence, child molestation, drug possession, drug trafficking, and possession of explosive devices; and other high-priority matters. This certainly is not the intent of deploying judges to the border, but when decisions are made politically instead of on a case-by-case basis, this has been the result.
To be protected from the political winds, the National Association of Immigration Judges has long advocated that the immigration courts be removed from the Department of Justice, because the mission of a law enforcement agency inherently conflicts with the mission of a neutral court system. Courts encourage transparency and stability, and are necessary to counterbalance political pressures. To insulate our immigration courts, the association advocates an important structural change: establishing an Article I immigration court, much like the U.S. Tax Court or Court of Claims. This would make us a real court, not an executive branch agency headed by a political appointee—the attorney general. While this is a seemingly technical distinction, we are convinced that such a structural change is essential to protect our courts from the political agendas that all too often have been devised in an attempt to influence our nonpolitical role.
In recent years, we have seen our court’s efficiency undermined by political concerns—first, under the past administration, in an effort to flip our dockets to address a surge of unaccompanied juveniles from Central America, and now a “deployment” of judges to the border in the hope that this might make it more secure. Court staff should not be confused with troops. Although we are loyal federal servants, our first responsibility is to uphold the Constitution and laws of the United States, not to serve as a show of force and intimidation, and surely not to rush to judgment. We need to do the job we were hired to do, by adhering to due process even when it is under siege, and that is what we will do. For immigration removal proceedings to be fair, they must be conducted by unbiased judges, with the independence and adequate resources to do the job right.
The association’s hope is that our fellow citizens who support a fair, independent, and efficient immigration system will support us in creating a structure that facilitates rather than undermines that mission. The noncitizens appearing before us can sometimes be dangerous to our communities, but others are your spouses, next-door neighbors, friends, trusted employees, soccer coaches, or children’s friends. Judges need the independence to determine who can stay and who should leave.
Now is the time for citizens to assist in creating a durable solution that protects the courts from political influences, rather than the current system, which makes the courts vulnerable to them. To end the distortion and chaos at the immigration courts, let judges be judges. Urge Congress to create an Article I immigration court.
The views expressed here do not necessarily represent the official position of the United States Department of Justice, the Attorney General, or the Executive Office for Immigration Review. The views represent the author’s personal opinions, which were formed after extensive consultation with the membership of NAIJ.