“In essence, we’re doing death penalty cases in a traffic court setting,” immigration judge Dana Leigh Marks told John Oliver two years ago. Since then, orders from Washington have made immigration courts even worse. In addition to a million-case backlog and life-and-death decisions, immigration judges face overwhelming political pressure from the Trump administration.
Immigration judges’ authority has been eroded by order after order from the Attorney General. Immigration courts and judges come under his direct authority. The Attorney General appoints and removes judges and can remove cases from their dockets if he does not like their rulings. That does not happen in other courts.
The Attorney General directs immigration judges to deny entire categories of asylum cases, orders them to strictly limit or deny continuances, and demands that each judge complete a minimum of 700 cases per year, no matter how complex or difficult the cases. The Attorney General, the nation’s chief prosecutor, also exercises the authority to reverse judges’ decisions when he disagrees with them. Does that sound like a fair court system?
Faced with a choice between following orders and delivering impartial justice, judges quit last year at double the rate of previous years. Immigration Judge Lisa Dornell considered it an honor and a privilege to serve as an immigration court judge for 24 years. She left in April 2019, saying that immigration courts had become “a toxic environment.”
Judge Ilyce Shugall quit in March 2019, saying that the administration “is doing everything in its power to completely destroy the immigration court system, the board of immigration appeal and the immigration system in general.”
Judge John Richardson left on September 30, as a speed-up system of case quotas went into effect. Richardson told Buzzfeed News: “The timing of my retirement was a direct result of the draconian policies of the Administration, the relegation of [judges] to the status of ‘action officers’ who deport as many people as possible as soon as possible with only token due process, and blaming [judges] for the immigration crisis caused by decades of neglect and under funding of the Immigration Courts.”
Judge Rebecca Jamil, who was a government immigration prosecutor before becoming an immigration judge, also quit last year. “Family separations; Sessions making his own case law on asylum; when we could continue cases — I could no longer sit below the seal of the Department of Justice and represent the Department of Justice at that point,” she told Buzzfeed News.
Judge Ashely Tabbador said “hostility and insulting working conditions” force many judges out. Tabbador heads the National Association of Immigration Judges, the union for immigration judges. Now the Trump administration is trying to decertify that union, leaving judges with even less voice and power.
The Trump administration appoints new judges without regard to expertise in immigration law, which is often as complex as the U.S. tax code. In a recent group of 28 new immigration judges, 11 had no prior immigration experience. They will be deciding life and death cases, with no prior experience, in an atmosphere charged with political pressure.
Courts are supposed to be independent, to uphold the law, and to protect the rights of the people who appear before them. The Trump administration and its Attorneys General prevent immigration courts from maintaining these basic principles of justice.
Congress can change this. What Congress can and should do is to make the immigration court an Article I court.
In Article III courts, the federal courts established by the Constitution, judges hold a life tenure precisely so that they can be independent and not be threatened or removed by political appointees.
Other courts, called Article I courts, have been established by Congress. In these courts, judges operate under a set of laws and serve for specified terms in office. For example, Tax Court judges are appointed for 15-year terms, effectively insulating them from political pressure.
Only Congress can create Article I courts. Only Congress can give immigration judges the independence they need to administer the law with fairness and impartiality. Congress must act to remove immigration courts from subservience to the Attorney General by making them independent, Article I courts.
