Legal Groups Call For Independent Immigration Courts

By Natalie Rodriguez | July 14, 2019, 8:02 PM EDT

Four prominent legal organizations are urging lawmakers to grant the immigration court system independence from the U.S. Department of Justice, citing growing dysfunction and serious due process concerns within the courts.

Representatives from the American Bar Association, Federal Bar Association, American Immigration Lawyers Association and the National Association of Immigration Judges all signed off on Thursday's letter to Congress, which derided the current structure where the attorney general can essentially serve “as both lead prosecutor and lead judge in immigration cases.”

The groups also argued that a number of new policies from the Executive Office for Immigration Review — including new quotas placed on judges and a decision required judges to reschedule hundreds of hearings — have put political pressure on judges and have worsened the court’s already-blotted reputation on efficiency.

“There’s a real recognition that the courts have been manipulated to their breaking point and we’re starting to see the repercussions to that now,” Kate Voigt, AILA’s associate director of government relations, told Law360 on Friday.

The letter builds on previous calls for independence, which have been mounting since the start of the Trump administration. Highlighting the current urgency of the matter, however, the groups’ letter pointed to the courts’ backlog of almost 900,000 cases. The backlog has grown from the end of fiscal year 2018, when the courts had a backlog of 768,257 cases, and has ballooned from 262,000 cases in 2010, according to a March 2019 report produced by Arnold & Porter Kaye Scholer LLP for the American Bar Association Commission on Immigration.

While the DOJ has significantly increased resources and notably gone on a hiring spree of immigration judges during the Trump administration, experts noted that the backlog and judge’s abilities to get through cases is getting worse.

“Throwing money at a broken system is not going to work,” Denise Noonan Slavin, president emeritus of the National Association of Immigration Judges, said in a Thursday press conference on the letter.

A representative for the DOJ did not immediately respond to a request for comment on Friday.

Slavin, who retired from active duties as an immigration judge in March, said that new policies have taken away crucial tools that immigration judges used to manage their dockets and forced immigration judges to cancel cases that were ready to be heard, while prioritizing cases that were not ready.

She also bemoaned the government’s pressures on immigration judges to meet certain numbers on their caseloads.

“When we come in every day, we have a dashboard sitting on our computer that looks like a gas gauge. If you’ve granted too many continuances, you may be in the yellow or the edge of the red,” Slavin said.

Judges who enter the red are at risk of losing their jobs, she added.

“The court system is no longer fair or impartial and in its current state cannot guarantee due process to those who appear before it as the Constitution demands,” Greg Chen, AILA’s director of government relations, said on Thursday.

Jeremy McKinney, AILA’s second vice president, said immigration judges do not have sufficient time to conduct full hearings and attorneys are pressured to keep things short. McKinney, who pointed to his own experiences as an immigration attorney, contends that immigration judges are often forced to rely more on the administrative record than live evidence at hearings and that even the record cannot always fully be grappled with due to the pressures placed on judges.

Given that fewer than 15% of detainees have access to lawyers, the immigration court system is unfair and wholly inadequate for handling immigration cases “even though making a mistake can result in the death” of an asylum-seeker, McKinney said, pointing to the dangerous conditions and threats that often motivate asylum-seekers to come to the U.S.

Chen and Elizabeth Stevens, chair of the Federal Bar’s Immigration Law Section, noted that their organizations have been talking with lawmakers from both sides of the political divide who are interested in tackling the immigration court system, but that there so far has not an official bill proposed in Congress.

The groups hope that will change soon. Two years ago, the Federal Bar proposed its own draft legislation that would create a new independent court comprised of both trial and appellate divisions. The appellate court members would be appointed by the U.S. president, with consent of the Senate, and judges would serve for 15-year terms, according to Stevens. The judges could only be terminated for good cause.

While there are some issues revolving around that draft legislation that are being worked on, the groups are hopeful it could serve as a template for a new bill and push through barriers on the hill that make any reforms involving immigration too hot to handle.

“One of the things that makes us optimistic is that this is really a bill about court reform,” Voigt said. “There is a wide recognition right now that our courts aren’t working."

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--Editing by Katherine Rautenberg.