02.14.20

Durbin, Senators Press AG Barr On Politicization Of Immigration Courts

WASHINGTON – U.S. Senator Dick Durbin (D-IL), along with Senator Sheldon Whitehouse (D-RI), Senator Mazie Hirono (D-HI), and a group of their colleagues, pressed Attorney General William Barr for information and documents related to the brazen politicization and maladministration of American immigration courts under President Donald Trump.  Against the backdrop of President Trump’s extreme and cruel anti-immigrant rhetoric, the Trump Justice Department has quietly undermined immigration courts’ ability to deliver impartial justice in a number of ways, like imposing annual case quotas and expedited procedural rules that short circuit due process, and circumventing established hiring practices to install partisan judges.  Those steps erode the independence of the immigration court system, the Senators wrote in a letter to Barr.

“While immigration courts reside within the executive branch, they should not be merely a tool to achieve desired policy outcomes,” the Senators wrote.  “The administration’s recent decisions to subvert the normal hiring process to promote partisan judges, and to increase political influence over individual immigration cases, has undermined public confidence in our immigration courts.”

Along with Durbin, Whitehouse, and Hirono, the letter was also signed by Senators Richard Blumenthal (D-CT), Kamala Harris (D-CA), Amy Klobuchar (D-MN), Cory Booker (D-NJ), Patrick Leahy (D-VT), and Chris Coons (D-DE).

The Trump Administration has taken a number of steps to engineer its desired outcomes from immigration courts.  The Administration has imposed unreasonably high quotas on immigration judges for the number of cases they close annually and ended judges’ ability to close cases administratively – steps that “create a conflict between immigration judges’ obligation to protect due process and the terms on which their job performance is measured,” the Senators note. 

Recent reports detail how the Trump Administration bypassed regular hiring procedures to appoint partisan judges to the Board of Immigration Appeals.  Trump Administration Attorneys General Jeff Sessions and William Barr have also exercised direct control over the outcomes of an increasing number of immigration cases.  In at least one instance, Administration officials have apparently reassigned cases away from a judge because the Attorney General disagreed with his rulings.  The Justice Department has even tried to decertify the immigration judges’ union, which has vocally opposed these changes. 

The Senators’ letter continued, “The United States deserves an immigration court system that is independent, impartial, and functional.  Parties appearing in immigration court are equally entitled to a timely hearing in front of a neutral arbiter, consistent with the requirements of the [Immigration and Nationalization Act] and the Constitution.”

Full text of the Senators’ letter is here and below:

 

February 13, 2020

 

Dear Attorney General Barr:

We are deeply concerned that the Trump administration is undermining the independence of immigration courts and mismanaging their administration.  As members of Congress, we seek to ensure that our immigration laws are interpreted and applied fairly and impartially.  We write for additional information about the training and hiring of immigration judges, and the management of immigration courts, in order to determine whether immigration courts are fulfilling this essential duty.

Recent reports detail how the Trump administration circumvented regular hiring procedures to appoint a cadre of partisan judges to the Board of Immigration Appeals (BIA).[1]  The Trump administration also has released a series of rules that will allow for increased political influence over individual cases.[2]  These actions are merely the latest steps in the Trump administration’s ongoing campaign to erode the independence of immigration courts.  The administration’s gross mismanagement of these courts further prevents them from providing basic due process.  The administration must reverse course to avoid lasting damage to public confidence in our immigration court system.

Due Process Requires Immigration Judges To Be Fair and Impartial

Immigration courts were created under the Immigration and Nationality Act (INA) as part of the Department of Justice (DOJ).  The U.S. Constitution, precedent, and practice have protected immigration judges from political interference and preserved their impartiality.[3]  The Fifth Amendment guarantees the right to due process in deportation proceedings,[4] including “the right to an impartial adjudicator.”[5]   The INA incorporates these due process protections, giving noncitizens the right to a hearing with an attorney present; [6] a “reasonable opportunity” to examine the evidence against them, to present their own evidence, and to cross-examine witnesses; [7] and the right to an appeal. [8] Federal regulations further require immigration judges to be impartial[9] and independent.[10]

These protections reflect the well-established principle in our legal system that a judge must “observe the utmost fairness,” striving to be “perfectly and completely independent, with nothing to influence or contro[l] him but God and his conscience.”[11]  As the U.S. Supreme Court has explained, “[b]oth the appearance and reality of impartial justice are necessary to the public legitimacy of judicial pronouncements and thus to the rule of law itself.”[12]  This principle is vitally important when deportation—“a drastic measure, often amounting to lifelong banishment or exile”—is at stake. [13] 

Immigration Judges Have Historically Enjoyed Structural Protections to Minimize Political Interference

Immigration judges have traditionally been insulated from political interference when deciding individual cases.  The lynchpin of this independence has been the separation of administrative and policymaking responsibilities at the Executive Office for Immigration Review (EOIR) from case-specific adjudications performed by trial-level immigration judges and the judges on the BIA.[14] 

Immigration courts are housed within EOIR, a subdivision of DOJ, and its judges are federal civil service employees with civil service protections.  The BIA also resides under EOIR and currently has 21 appellate immigration judges, including a Chairman and a Vice Chairman.[15]  EOIR is led by a Director who is appointed by the Attorney General.  The Director sets policy and supervises and evaluates immigration judges’ performance.[16]  Among those policies are case management procedures that have historically balanced the timely determination of appeals with the requirements of due process.[17]

Importantly, federal regulations have never explicitly allowed the Director to decide immigration cases or direct the result of any case and, since at least 2007, the Director has been expressly forbidden from doing so.[18]  The Director also traditionally has had no role in establishing immigration precedent.  Until recently, BIA decisions were not binding on all immigration judges and the Department of Homeland Security (DHS) unless a majority of the Board voted to publish them. [19]  In other words, no single judge or EOIR official could make a BIA decision binding.[20] 

The Trump Administration’s Attorneys General Have Eroded These Safeguards

As the American Bar Association has noted, the Trump administration has instituted “specific executive policies and practices exerting unprecedented levels of control over immigration judges and their job performance [that] have deteriorated public trust in the immigration court system and undermined judicial independence.”[21] 

The Trump administration has taken a number of steps to affect case outcomes by restricting immigration judges.  Some of these actions, such as imposing case completion quotas[22] and eliminating judges’ ability to administratively close cases,[23] create a conflict between immigration judges’ obligation to protect due process and the terms on which their job performance is measured.  DOJ has also moved to decertify the immigration judges’ union, which has vocally opposed these changes.[24]  And in at least one instance, EOIR officials have apparently reassigned cases away from a judge because the Attorney General disagreed with his rulings.[25] 

The Trump administration has also sought to influence immigration case outcomes by changing the composition of the immigration judge cohort.  We are deeply concerned about reports of overt politicized hiring of immigration judges and the “utter lack of transparency” in the hiring process.[26]  Congress has directed EOIR to fill “positions with highly qualified individuals from a diverse pool of candidates, including those with non-governmental, private bar experience, to conduct fair, impartial hearings consistent with due process.” [27]  However, DOJ has changed the qualifications for immigration judges to favor those with law enforcement experience over those with other types of experience.[28]  Most recently, the administration subverted the normal process to hire six new BIA judges with records in line with the Trump administration’s anti-immigration agenda.[29]  All six were immigration judges known for their high asylum denial rates:[30] over 80 percent, compared to the national average of 57 percent.[31]  Two of the new judges also had the third and fourth highest number of board-remanded cases of all immigration judges, and several were subject to complaints from litigants.[32]  Although these issues raise significant questions about these individuals’ performance as judges, they were omitted from the memos recommending that these judges be hired.[33]  The EOIR Director also violated standard hiring procedure: instead of going through the typical two-year probationary period, these judges were immediately appointed to the BIA on a permanent basis.[34] 

Under the Trump administration, once hired, immigration judges receive limited training, and the training they do receive reportedly emphasizes that immigration courts are part of the Trump administration’s enforcement efforts, rather than an independent body.  One former immigration judge expressed “grave concerns” regarding whether new immigration judges “have been appropriately trained to be judges in a professionalized, [truly independent] immigration court.”[35]  Another explained that “there isn’t even any attempt at a proper training.  The whole indoctrination is you’re not judges, you’re really enforcement.  You’re really a branch of DHS in robes.”[36]  Recent training sessions for immigration judges have emphasized the administration’s enforcement priorities rather than substantive legal updates.  According to one former immigration judge, the judges’ 2018 annual training conference “was profoundly disturbing. Do things as fast as possible. There was an overarching theme of disbelieving aliens and their claims and how to remove people faster.”[37]

Rewriting Immigration Laws for Ideological Purposes

The Trump administration has shifted the power to decide cases away from immigration judges entirely and put it in the hands of its Attorneys General, who have exercised direct control over the outcomes of an increasing number of immigration cases.  Although the Attorney General has long had the ability to sua sponte re-adjudicate immigration appeals,[38] prior Attorneys General have used this power sparingly.  According to the Congressional Research Service, Attorneys General in the Obama administration exercised this power only five times in eight years.[39]  Trump administration Attorneys General have exercised this power 16 times in just two and a half years.[40]  These decisions “substantially rewrit[e] immigration law . . . unilaterally and with an undeniably ideological bent.”[41]  You also finalized a rule that gave himself unilateral authority to make any decision by the BIA binding.[42]  Most recently, the administration issued an interim rule that will give the EOIR Director—a political appointee who serves at the pleasure of the Attorney General—the unprecedented power to decide immigration appeals and make his decisions binding. [43]  Because the Director will now have a role in deciding cases and setting precedent, he can send a clear signal to judges regarding how they should rule, and can enforce that through his power to evaluate the performance of those same judges.  The exercise of this power is inconsistent with the INA and due process.

The direct and indirect involvement of political officials in case-specific adjudications “go[es] to the very essence of an impartial court” because it “undermine[s] immigration judges’ ability to perform their role as a neutral arbitrator of fact and law.”[44] 

The Trump Administration’s Gross Mismanagement Prevents Immigration Courts From Delivering Justice

The Trump administration has justified many of these incursions into the independence of immigration courts on the basis that they will increase the efficiency of the courts.[45]  However, the administration’s gross mismanagement prevents immigration courts from delivering justice effectively, forcing hundreds of thousands of people to wait for their day in court. 

As former immigration judges have noted, under the Trump administration “even on the X’s and O’s level, you have this stunning incompetence and inability to run a judicial system just from the technical standpoint—they can’t hire, they can’t plan, they can’t train, they can’t get the resources out there.”[46]  Immigration courts still rely exclusively on voluminous paper files, and lack sufficient support staff or translators to function efficiently.[47]  The administration has also repeatedly redirected judges to focus on new “priority cases,” causing chaos.[48]  When particular cases are expedited, pre-scheduled cases are moved months or years into the future.[49]  For example, when the Trump administration “deployed” immigration judges to border courts in 2017, more than 20,000 cases were delayed in the immigration courts they left behind.[50]

As a result, the immigration case backlog has only increased, ballooning from 504,394 cases in 2016[51] to over 1.3 million by September 2019.[52]  The average “wait time” for cases in immigration court—the average time a case currently on the docket has been open—has increased from 324 days in 1998 to 696 days this year.[53] 

Even as the administration has requested—and Congress has appropriated—additional funds,[54] EOIR cannot “answer simple budgetary and oversight questions” from the Senate Committee on Appropriations to justify how they are spending their money.[55]  Nor have they implemented basic procedural improvements that would speed the resolution of cases and reduce the immigration court backlog, like instituting an electronic case management system.[56] 

This gross mismanagement further erodes immigration courts’ ability to act as fair and neutral arbiters of the law, amplifying the pressures on judges to decide cases quickly, not carefully, and in accordance with the administration’s priorities. 

Conclusion

While immigration courts reside within the executive branch, they should not be merely a tool to achieve desired policy outcomes.  The administration’s recent decisions to subvert the normal hiring process to promote partisan judges, and to increase political influence over individual immigration cases, has undermined public confidence in our immigration courts.  These actions create the impression that cases are being decided based on political considerations rather than the relevant facts and law.  The appearance of bias alone is corrosive to the public trust.[57]

The United States deserves an immigration court system that is independent, impartial, and functional.  Parties appearing in immigration court are equally entitled to a timely hearing in front of a neutral arbiter, consistent with the requirements of the INA and the Constitution.  In order to fulfill our obligation to oversee immigration courts and ensure that our laws are applied fairly, we request a staff-level briefing addressing these concerns.  We also ask that you provide us with the following:

  1. Copies of all written policies related to the hiring of trial-level and appellate immigration judges.  If no written policy exists, please provide a detailed description of the hiring of these judges including any changes to the hiring process since 2017;
  2. Copies of all recommendation memos written to advocate for the hiring of trial-level and appellate immigration judges from 2017-present;
  3. Copies of all materials for trainings of immigration judges from 2017-present;
  4. Copies of any documents related to the development and implementation of EOIR’s case processing times and quotas.  If no written policy exists, please provide a detailed description of how these policies were developed;
  5. Copies of any documents related to any employment actions taken against immigration judges as a result of their case processing times and quotas;
  6. Any internal guidance that exists governing when the Attorney General or the EOIR Director should make their decisions binding; and
  7. Any internal guidance that exists governing when the Attorney General will certify an immigration case to himself.

Please provide these answers and documents by no later than March 13, 2020. Thank you for your prompt attention to this matter.

 

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