In a letter sent to Attorney General Jeff Sessions on Tuesday, more than 120 law professors denounced the Justice Department’s new performance metrics for immigration judges as a danger to due process and an infringement on judicial independence.
Administrative and immigration law professors from at least 30 states warned that, while the current backlog of immigration cases, many of which are asylum requests, awaiting adjudication (more than 700,000, at last count) warranted action by the Justice Department, case quotas would come at too great a cost.
“Instead of providing adequate resources or implementing other case management tactics, the Department of Justice has proposed the case completion quotas,” the letter reads. “We believe that these quotas show disregard for the importance of independence, including avoidance of a conflict of interest, in adjudication. The quotas seem to align with President Trump's displeasure with the need for process in immigration cases.”
Following an Executive Office for Immigration Review (EOIR) memo released in April, immigration judges are now expected to complete at least 700 cases per year and have fewer than 15 percent of their rulings overturned on appeal. Judges who fail to meet the quota will be deemed unsatisfactory or “needing improvement” and could face discipline.
The letter's authors argue that the new quotas will pressure immigrant judges already stretched thin to rush complicated and weighty cases, thereby denying immigrants enough time to find a lawyer or collect evidence for their case. Instead of quotas, the law professors said the Justice Department should hire more judges, provide more support staff, and increase funding to the courts (solutions largely backed by Democrats and Republicans alike, as well as immigration judges themselves).
Immigrant advocates warn that the quotas could lead to an increase in erroneous deportations of immigrants, forcing many to return to the violence and persecution in their home countries that led them to apply for asylum in the first place.
“The purpose of implementing these metrics is to encourage efficient and effective case management while preserving immigration judge discretion and due process,” an EOIR spokesperson told the Prospect in response to the letter.
Immigration judges are technically considered attorney employees of the Justice Department and, as such, don't have the same independence that other federal judges might have. This in-between status has left immigration courts particularly vulnerable to political pressure. And in the case of the Trump administration, Sessions has begun to repurpose the courts as an extension of his hardline anti-immigrant ideology.
In addition to the new quotas, the attorney general has also tied the hands of immigration judges by eliminating a tool used for organizing their case docket, known as administrative closure. Administrative closure, much like law enforcement’s prosecutorial discretion, allows judges to prioritize cases. It also provides immigrants stuck in a visa backlog or awaiting other legal relief a temporary reprieve from deportation.
Sessions, along with Trump, has signaled a clear distaste for the asylum system as a whole and a cynicism toward the majority of immigrants seeking refuge, saying they have taken advantage of the system and falsely claiming that 80 percent of asylum applications are without merit. Meanwhile, Trump has voiced a more fundamental issue with due process for non-citizens, even tweeting that undocumented immigrant should be deported “immediately, with no Judges or Court Cases.”
Faced with the pressure to meet strict quotas and stripped of the ability to handle their case dockets efficiently, judges may have little option but to cut corners or risk losing their jobs. The unprecedented structural changes pushed by Sessions amount to a greasing of the court system so as to create a slicker path to deportation for as many immigrants as possible.
