Notice & Comment

Even Worse, Again

Ten years ago, I wrote about how the problems with immigration adjudication were even worse than previously acknowledged.  Today, the problems are even worse than the even worse of ten years ago.  Substantive immigration law remains harsh as it continues to limit immigration adjudicators from dispensing proportional consequences.  What is even worse:  further diminishment of the independence of adjudicators; increased backlogs; and new policies that further promote diversions from hearings.

Creating greater independence for immigration adjudicators is an issue that should easily earn bipartisan support.  Everyone should be concerned about unchecked government power in immigration adjudication.   But immigration judges are becoming less independent.  They are increasingly treated as another immigration prosecutor in the room.

When Congress created the Department of Homeland Security (DHS), it separated immigration adjudication functions by leaving the immigration courts within the Department of Justice and moving immigration enforcement to the new DHS.  In an immigration courtroom, the government is represented by a DHS attorney and the decisionmaker, the immigration judge, works for the Department of Justice.  But immigration judges remained administrative judges who work for the Attorney General and removal hearings continued to lack the procedural protection of a more independent decisionmaker.  And there continued to be no right to government-funded counsel for noncitizens.

As employees of the Attorney General, immigration judges face pressure to reach decisions that conform to the views of their boss.  This lack of decisional independence has intensified under former Attorney General Sessions’ case completion quotas for immigration judges.  If an immigration judge fails to meet a quota, his or her conditions of employment are left to the discretion of a Department of Justice supervisor.  The quotas demand immigration judges work faster under political leadership that doubts the need for due process for noncitizens.  The Trump Administration sees the immigration courts as a roadblock to its prioritization of everyone for removal and has sent signals that it expects immigration judges to toe the line.

The quotas and other restrictions on docket management are an attempt to chip away at a case backlog that has grown substantially under the Trump administration.  In 2016, the backlog was over 500,000 cases.  The current backlog could top over a million.  The recent government shutdown delayed 60,000 hearings.  The backlog was unacceptable in the pre-Trump era and the Trump Administration has not improved the situation.  Despite recent immigration judge hiring, more are needed.

A further concern is that the Trump Administration has emphasized metering—controlling access to immigration adjudication—in old and new ways.  It has continued to use diversions from the immigration courts that pre-date the administration, but it has developed new diversions.  The Trump Administration is metering access to the border for asylum seekers, and now, even when individuals do get a turn to ask for protection from persecution, the administration intends to force those individuals to remain in Mexico while they wait for a hearing before an immigration judge.  Remaining in Mexico increases the risk of danger to applicants and decreases the chance of finding legal representation.

Immigration adjudication needs to break out of a cycle of decline.  The continuing state of “even worse” demands congressional action to make things better.  Congressional action should protect the independence of immigration adjudicators, provide more resources to hire more immigration judges, and curtail diversions from immigration adjudication.

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