Notice & Comment

Due Process, Immigration Judges, and Immigration Officers , by Richard J. Pierce, Jr.

The Supreme Court has long emphasized the requirement of a neutral decision maker as a critical component of the process that is due any individual who has a dispute with government.[1] The Court has also emphasized the importance of the interest an individual has at stake in identifying the procedures required by due process.[2] Yet, in a context in which an individual’s life is often at stake, we rely on decision makers who cannot possibly be considered neutral.

“Any alien who is physically present in the United States or who arrives in the United States . . . may apply for asylum . . . .”[3] Any alien who applies is entitled to asylum if she “has a well-founded fear of persecution on account of race, religion, ethnicity, membership in a particular social group or political opinion.”[4] The typical applicant for asylum alleges that she fears that she and/or other members of her family will be killed if they are required to return to their country of nationality.

Deciding whether someone is entitled to asylum requires the decision maker to find facts that depend on the credibility of witnesses. Due process requires oral evidentiary hearings before a neutral decision maker in cases in which the decision depends on findings of adjudicative fact that are based on witness credibility.[5]

Until recently, the primary fact finders and decision makers in asylum cases were Immigration Judges (IJs), who made their decisions based on hearings. Over the past two years, however, the Department of Justice and the Department of Homeland Security have transferred a high proportion of the process of making the dispositive findings of fact from IJs to Asylum Officers (AOs), with a resulting dramatic decline in the proportion of applicants who obtain a hearing before an IJ.

DOJ and DHS have accomplished that transfer of decision making power by applying pressure on AOs to deny applicants the opportunity for a hearing. An AO can deny the applicant a hearing and order the applicant’s removal from the country by finding as a result of a screening interview that the applicant does not have a “credible fear of persecution”[6] or that the alien can be removed to a “safe third country.”[7]

IJs are at will employees of the Department of Justice, and AOs are at will employees of the Department of Homeland Security. They are subject to evaluation and to potential removal without cause by their superiors at DOJ and DHS, respectively.[8] For the last two years, the President, the Attorney General, and the Secretary of Homeland Security have applied extraordinary pressure on IJs and AOs to deny both applications for asylum and requests for asylum hearings, with predictable results.[9] A recent empirical study found that “the current Executive-in Chief exercises a profound influence over removal decisions, undermining the assumption of independence among administrative adjudicators.”[10]

One Asylum Officer described the situation well in an oped in the Washington Post aptly titled “This Madness Is Not Why I became an Asylum Officer.”[11] He characterized the decision making process as “a Kafkaesque nightmare” that is “nothing like the due process that they’d ordinarily receive [i]n a normal asylum hearing . . .” He reported “feeling pressured by supervisors to say that it is safe for migrants to return to Mexico” even in cases in which migrants had been kidnapped, attacked at knifepoint or forced into prostitution.

As I have explained in detail elsewhere, due process requires at a minimum that IJs and AOs must be insulated from evaluation and potential removal without cause by the President, the Attorney General, the Secretary of Homeland Security, or any of their subordinates.[12] I am a member of a team of law professors that is actively seeking a client with a meritorious claim for asylum who has been victimized by the present blatantly unconstitutional system of immigration adjudication. The prospective client must view her best interests as consistent with the broader interests of all present and future applicants for asylum. We are willing to represent such a client pro bono or to file amicus briefs in support of any such client if she is represented by someone else. Please contact me if you become aware of anyone who fits that description.

 

Richard J. Pierce, Jr. is the Lyle T. Alverson Professor of Law at George Washington University.


[1] Ward v. Village of Monroeville, 409 U.S. 57, 60 (1972); Tumey v. State of Ohio, 273 U.S. 510, 532 (1927).

[2] Mathews v. Eldridge, 424 U.S. 319, 335 (1976).

[3] 8 U.S.C. §1158(a)(1).

[4] 8 U.S.C. §1158(b)(1)(B); 8 U.S.C. §1101(a)(42)(A).

[5] Goldberg v. Kelly, 397 U.S. 254 (1970).

[6] 8 U.S.C. §1225 (b)(1((B)(iii)(I).

[7] 8 U.S.C. §1158 (a)(2)(A).

[8] Kent Barnett, Logan Cornett, Malia Reddick & Russell Wheeler, Non-ALJ Adjudicators in Federal Agencies: Status, Selection, Oversight and Removal, Final Report to the Administrative Conference of the United States 51-61 (Sep. 24, 2018), reprinted, 52 Ga. L. Rev. 1 (2019).

[9] Catherine Kim, The President’s Immigration Courts, 68 Emory L. Rev. 1, 3-6 (2018).

[10] Catherine Kim & Amy Semet, An Empirical Analysis of Politicization in Immigration Adjudication, __ Geo. L.J. __, at *1 (forthcoming 2020).

[11] Charles Tjersland, Jr., This Madness Is Not Why I Became an Asylum Officer, Wash. Post B1 (July 21, 2019) (title in July 21, 2019 print version different than July 19, 2019, online version—though the message is the same).

[12] Richard Pierce, The Court Should Change the Scope of the Removal Power by Adopting a Pure Functional Approach, __ 26 Geo. Mason L. Rev. __ (forthcoming 2019); Richard Pierce, The Scope of the Removal Power Is Ripe for Reconsideration, 58 Judges’ Journal 19 (2019).