Eric Gay/AP Photo
Migrants applying for asylum in the United States go through a processing area at a new “tent court” at the Migration Protection Protocols Immigration Hearing Facility in Laredo, Texas, September 17, 2019.
For 20 years, the National Association of Immigration Judges (NAIJ) has demanded independence for their courts, which are not part of the judicial branch but, rather, part of the Department of Justice, a law enforcement agency. On Friday, the same calls were made again—only with more urgency.
More than two years ago in this magazine, then–NAIJ President Dana Leigh Marks called
for judicial independence. Marks asked, “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?”
Unlike other U.S. courts—federal, state, and local—immigration courts are under the supervision of a law enforcement agency. Instead of exercising the judicial independence other courts exercise, immigration judges are subject to the whims of DOJ policy changes directed by partisan administrations.
Under President Trump’s DOJ, the conflict of interest inherent in the immigration court structure has corroded what little due process still exists, said panelists at an event at the National Press Club last Friday.
The president of the American Bar Association, Judy Perry Martinez, spent a week in August doing pro bono immigration work on the border. “What I can tell you is that I saw something that does not in any way approach justice,” she said.
Jeremy McKinney, a practicing immigration attorney and vice president of the American Immigration Lawyers Association (AILA), agreed. “In over 20 years, I’ve never seen such an all-out assault on due process, which of course has a simple definition,” he said. “It’s just the right to a full and fair hearing before an impartial judge. And yet the current system that we work in every day all too often is not full, not fair, not impartial and is wholly inadequate.”
Exacerbating the problem is a new system set up to process the nearly 50,000 migrants forced to wait in Mexico for their hearings. Newly erected “tent courts” on the American side of the border are even worse than their brick-and-mortar counterparts, McKinney said. Calling them a “deportation machine,” McKinney added that the tent courts are a “mechanism simply designed to speed up the deportation of individuals with little regard for due process.”
While migrants attend their hearings in the tent courts at the border, judges, at other locations, conduct the hearings by video. The migrants are not even allowed to have a pen and paper, only the summons they received to appear in court. McKinney said immigration lawyers were not even allowed inside the courts.
“The rollout of the tent courts was shrouded in secrecy,” McKinney said. “[The Department of] Homeland Security did not even provide the most basic operational logistics related to the new tent courts, including the dates when the facilities were opening.” According to McKinney, not only does DHS control access to the facilities, but they also control attorney-client representation at those facilities. AILA sent representatives to the Brownsville and Laredo facilities in Texas, but they were blocked from observing court hearings, as they’re not in other immigration courts. And the assault on due process extends well beyond the tent courts.
THE AMERICAN BAR ASSOCIATION and the Federal Bar Association support the NAIJ’s claim for judicial independence; the FBA even drafted legislation to make the immigration court an Article I court (that is, part of the federal judiciary). If anything, the need is becoming more urgent. Despite the largest expansion of the courts the NAIJ has ever seen, jumping from 280 immigration court judges to 420 judges, the backlog of immigration cases has ballooned from around 600,000 to over a million in the last year—in large part due to a new DOJ ruling.
In May 2018, reversing four decades of precedent, Trump’s DOJ removed a key docket management tool known as “administrative closure,” which enables judges to close a case they think would be better handled by another agency such as the State Department or U.S. Citizenship and Immigration Services. That DOJ decision added as many as 300,000 cases to the backlog. Five months later, the DOJ imposed quotas and deadlines on immigration judges as a condition of their continued employment, further exacerbating the existing conflict of interest for judges. Judges must now hear 700 cases a year.
In the last three years, and “particularly last three weeks, the Department of Justice has taken very dramatic and revolutionary steps to dismantle the court and strike, honestly, at the very core of the principles that we as judges and as Americans hold dear,” said Judge Ashley Tabaddor, president of the NAIJ. Unlike other immigration court judges, Tabaddor, because she heads the NAIJ, is able to advocate on behalf of her members against her employer—and publicly criticize the DOJ.
According to Tabaddor, judges now have two or three times more cases per session than they previously had—a rate that sometimes forces judges to hear one case a minute—an impossible standard. By increasing the case load and instituting quotas, the DOJ “intentionally created a conflict of interest in each case where the judge’s livelihood is now being pitted against his or her duty to be an impartial adjudicator,” said Tabaddor. “Through quotas and deadlines the agency is imposing its law enforcement policies into each judge’s ruling by essentially threatening the judge’s job. Every judge now has a sword hanging over his or her head on a daily basis.”
Some judges are known to be unforgiving toward asylum seekers. One judge, for example, has never granted asylum to anyone who has come before her court. But the DOJ’s new quotas have exponentially increased the pressure on judges to appease their employer, a law enforcement agency with a specific policy agenda: Keep migrants out.
The attorney general has also ended the ability of immigration judges to unilaterally terminate cases and even attacked judges’ ability to continue cases.
Eric Gay/AP Photo
A courtroom at the Migration Protection Protocols Immigration Hearing Facility in Laredo, Texas, where immigration judges conduct hearings by video. Representatives of the American Immigration Lawyers Association have been blocked from observing court hearings at the Laredo facility.
The DOJ is at least transparent about its intentions. Previously, the department had both a chief policy director and a chief appellate judge. They were separate positions, and the policy director was prohibited from oversight of judicial cases. But with no advance notice, the DOJ collapsed the position into one. Calling this change a “radical move” that “decimates any semblance of separation of the judicial role of immigration judges from the law enforcement policy agenda” of the DOJ, Tabaddor noted that the chief policy director position now has “been given authority to interfere in individual cases” and review immigration court decisions.
Rationing the courts’ resources also has exacerbated their dysfunction. The DOJ has thinned staffing, time, and even space for the judges to do their job, in what Tabaddor called a “deliberate withholding of key resources for effective functioning of the court.”
Perhaps most critically for migrants, the DOJ has drastically cut funding for interpreters. More than 90 percent of people who appear before the court require an interpreter. One judge’s session, according to Tabaddor, can include somewhere between 80 to 100 cases with multiple languages. Yet the court is limited to one interpreter per session.
Even if a migrant can be understood in court—that is, even if they have the right interpreter—in fewer than 2 percent of cases for people under the Migrant Protection Protocols have the migrants had counsel. And of the thousands who have now had a chance to be heard in court, it’s estimated that only a dozen have been granted asylum.
There’s a 10 percent to 14 percent greater chance of being granted relief in the immigration system if you have counsel, said Martinez. “That should be the only data point that is necessary to make the case” for greater access to attorneys.
NOT CONTENT MERELY TO CRACK DOWN on judicial independence, the DOJ is now attacking the judges’ union—their only tool to voice their grievances and dissents. In August, Trump’s Federal Labor Relations Authority moved to redefine the judges’ job as a management position—hence, not eligible for collective bargaining. Tabaddor said that the NAIJ is doing everything it can to fight decertification.
Last Friday, the union also filed two unfair labor complaints, known as ULPs, against the administration with the FLRA. The first complaint seeks to redress the harm inflicted on union leaders when the department sent a white supremacist letter to the NAIJ, inciting online attacks and actually requiring some union leaders to obtain security. The second is in relation to the DOJ’s “action in withholding key information circumventing the law on matters relating to discipline and removal of immigration judges,” Tabaddor explained.
The need for an independent immigration court system has never been more clear, Tabaddor said. Judges have confided to Tabaddor that they have made judgments out of fear for their job. “With every decision, the judge has to weigh the risk of being fired against the oath of office he or she has taken,” Tabaddor said.
As McKinney and Martinez noted, these judges make life-and-death decisions. The migrants arriving at the border now are not economic refugees, McKinney said. Rather, “they are fleeing unimaginable violence.” But in a DOJ immigration court, judges must make their decisions under duress.
