Imagine a criminal court system where defendants have no right to counsel and just one-third of defendants are represented. In this imaginary court system, both the judges and the prosecutors are employees who report to the Attorney General and the President. The judges lack judicial independence and have no authority to grant continuances, place cases on hold, or close cases on their docket. Prosecutors have no authority to exercise prosecutorial discretion, and in every case, are ordered to pursue most extreme penalty. Many of the defenses available to defendants are not within the jurisdiction of the judge to decide. The caseload in the court has ballooned beyond capacity, and the judges are instructed to reduce the backlog by assessing the harshest punishment possible, as swiftly as possible. The appellate court and judges in this system also report to the executive branch. Children are treated the same as adults in this system, forced to represent themselves if unable to pay an attorney.
This is no imaginary system. This is immigration court.
In the immigration court structure of the United States, immigration judges are employees of the Executive Office for Immigration Review (EOIR), a branch of the Department of Justice (DOJ). Immigration judges are appointed by the Attorney General. Prosecutors in the court system are employees of the Department of Homeland Security (DHS), specifically Immigration and Customs Enforcement (ICE). The Board of Immigration Appeals (BIA) is the appellate body presiding over the immigration courts. BIA judges are also DOJ employees, appointed by the Attorney General (AG).
In addition to his position as chief prosecutor who appoints and supervises immigration judges and appellate judges, The AG also has the power to refer cases to himself and issue precedent decisions. This referral power has historically been sparingly used and is “a powerful tool in that it allows the Attorney General to pronounce new standards for the agency and overturn longstanding BIA precedent.” The practice has been criticized, in particular because the agency lacks clear guidelines or procedures about the exercise of this considerable authority. Also, it conflicts with a core value of our legal system: the impartiality of the adjudicator. Jeff Sessions certified several cases to himself during his tenure as Attorney General, issuing decisions that reduce asylum eligibility and limit the power of immigration judges to control their own dockets, resulting in an increased case backlog.
By June 2018, the Trump Administration implemented the Zero Tolerance policy and had separated thousands of children from their parents who had brought them to the United States to seek asylum.
The total number of children taken is unknown and was not tracked. The Zero Tolerance policy was one of several actions taken by the administration to deter Central Americans from seeking asylum in the United States. Jeff Sessions delivered remarks to immigration judges in late 2017, claiming the system was being gamed by dirty immigration lawyers and border crossers using asylum as an easy ticket to illegal entry to the United States.
AG Sessions certified to himself the case of a woman named “AB”, who was a victim of domestic violence in El Salvador. She lost her asylum claim in front of a judge with a 92% denial rate on asylum cases. The BIA remanded the case to the immigration judge, instructing him to recognize her protected particular social group and to grant asylum. The judge refused and asked the Attorney General to certify the case to himself. Jeff Sessions obliged and issued the decision in Matter of AB, holding narrowly that a previous case granting asylum protection to a victim of domestic violence was overruled. Yet despite the narrow holding in Matter of AB, the decision contained broad and sweeping dicta, asserting that “generally, claims by aliens pertaining to domestic violence or gang violence perpetrated by non-governmental actors will not qualify for asylum.” This decision had, and continues to have, a significant impact on asylum protections for Central Americans, most of whom are fleeing violence committed by non-governmental actors.
It also affected whether asylum seekers were even afforded the opportunity to apply for asylum. Asylum seekers who arrive at the southern border are required to pass a credible fear interview in order to earn the right to seek asylum before an immigration judge. This interview occurs days after an asylum seeker enters the country. Without passing this test successfully, an asylum seeker will be deported. Two days after Jeff Sessions’ decision in Matter of AB, the Asylum Office issued a memo to its adjudicators, instructing them that “[i]n general, in light of the [Matter of A-B-] standards, claims based on membership in a putative particular social group defined by the members’ vulnerability to harm of domestic violence and gang violence committed by non-government actors will not establish the basis for asylum, refugee status, or a credible or reasonable fear of persecution. Between July and December 2018, thousands of Central American asylum seekers who had been persecuted by private actors were denied credible fear interview and deported.
The assault on asylum through the court system was continued by Attorney General William Barr on July 29, 2019 in Matter of L-E-A-, 27 I&N Dec. 581 (A.G. 2019). Barr closely followed the playbook of Sessions’ Matter of A-B- by making broad pronouncements about categories of asylum claims that will not prevail in an attempt affect the likelihood of success in cases not before him. Overturning a longstanding recognition that members of a nuclear family can be a protected particular social group, Barr wrote: “[In] the ordinary case, a nuclear family will not, without more, constitute a ‘particular social group’ because most nuclear families are not inherently socially distinct.” Jeff Sessions also chipped away at the authority of immigration judges to manage their dockets. One widely used tool was administrative closure, which allows judges to temporarily halt removal proceedings by transferring a case from active to inactive status. This tool would be used to allow time for US Citizenship and Immigration Service to decide on matters beyond the court’s jurisdiction, such as waivers, protections for victims of crime, and protections for children who have been abandoned, abused, or neglected by a parent. In Matter of Castro Tum, the former AG curtailed the immigration judges’ ability to close cases and instructed courts to re-calendar inactive cases. The same year, he certified Matter of S-O-G- & F-D-B- to himself, holding that “immigration judges have no inherent authority to terminate or dismiss removal proceedings. The effect of the removal of authority to dismiss or inactivate cases has caused the court backlog to balloon, exceeding 820,000 cases at the end of 2018. In October 2018, the DOJ implemented a case completion quota as part of the performance review process for immigration judges, requiring them to finish 700 cases per year or face disciplinary action. The pressure on immigration judges to run an assembly line immigration court severely undermines due process and judicial integrity.
The Executive Office for Immigration Review is particularly vulnerable to political pressure and does not currently extend the Constitution’s guarantee of due process to immigrants because it lacks judicial independence and is subject to influence from the other branches of government. The American Immigration Lawyers Association recommends that Congress create an independent court system in the form of an Article I court, modeled after the U.S. Bankruptcy Court. This recommendation is echoed by the National Association of Immigration Judges, the Federal Bar Association, and the American Bar Association. The United States core values of fairness, due process, and equality are not demonstrated in our immigration court system. To correct this, the court must be restructured outside of the control of the executive branch of our federal government.
You can see this and other articles in the September 2019 issue of Austin Lawyer: https://issuu.com/austinbar/docs/al_sept19-digital/20