U.S. Circuit Judge Frank H. Easterbrook didn't mince words earlier this year when sharing his thoughts on a recent decision by the immigration courts' appellate board: "We have never before encountered defiance of a remand order, and we hope never to see it again."
The Seventh Circuit judge, a Reagan-appointee, said the board had ignored the court's directions to grant protection to an immigrant fighting deportation, instead ruling against the immigrant again. The rebuke wasn't the first time the Board of Immigration Appeals has been reprimanded by the federal judiciary for seemingly prejudiced decisions under the Trump administration.
Just a month earlier, a judge on the Third Circuit tackling an appeal from the BIA wrote in a concurring opinion that it didn't appear the board "was acting as anything other than an agency focused on ensuring [an immigrant's] removal rather than as the neutral and fair tribunal it is expected to be."
"That criticism is harsh and I do not make it lightly," U.S. Circuit Judge Theodore McKee wrote.
While President Donald Trump's judicial nominees and U.S. Supreme Court picks grab headlines for their potential to shape the judiciary for years to come, the administration is staffing the lesser known BIA with former immigration judges who have high asylum-denial rates and individuals with backgrounds in law enforcement. Some of the picks have prompted advocates for immigrants and lawmakers to claim the hiring process is too politicized.
Documents newly obtained through the Freedom of Information Act reveal that the Trump administration has aimed to fast-track the hiring process while giving the director of U.S. Department of Justice's Executive Office for Immigration Review, James McHenry, and the U.S. attorney general more say in who gets the nod.
Unlike the federal and appellate courts, the BIA, an administrative appellate board that hears appeals from immigration trial courts, is not independent but rather is housed with the EOIR.
Yet the board can issue precedential decisions that shape immigration policy — and the lives of immigrants facing deportation — well into the future.
"That the reasonably ordinary citizen has not heard of the BIA does not take away from the fact that it is the most important agency establishing immigration jurisprudence in the country, and when you politicize that, you're obviously politicizing immigration jurisprudence," said Muzaffar Chishti, head of the nonpartisan Migration Policy Institute's New York office.
A spokesperson for EOIR told Law360 that the office sped up the hiring process as part of "commonsense changes" and in response to criticism from Congress.
She also said that EOIR "does not choose board members based on prohibited criteria such as race or politics, and it does not discriminate against applicants based on any prohibited characteristics," and that "all board members are selected through an open, competitive, merit-based process."
During the most recent hiring cycle, every panelist evaluating candidates was a career employee, not a political appointee, according to the spokesperson.
"Individuals who assert that such changes make the hiring process less neutral are either ignorant or mendacious," the spokesperson said.
High Rates of Asylum Denials
Since August, the Trump administration has installed nine of the 19 current permanent members of the BIA, and most of the newcomers have asylum-denial rates above 80% and backgrounds in law enforcement or the military.
All but one of the nine were previously immigration judges, and according to data collected by Syracuse University's Transactional Records Access Clearinghouse, the average asylum-denial rate among those eight judges was just over 92%. The denial rate for each of those eight judges ranged from 83.5% to 96.8%.
The average asylum-denial rate for immigration courts nationally is 63.1%, according to TRAC.
Asylum-denial rates aren't perfect metrics; controlling asylum law varies by circuit, and the viability of asylum claims can vary based on location. New York's immigration courts for instance, tend to see more asylum claims from Chinese citizens fleeing political oppression, which are more frequently successful, while courts near detention centers may see harder-to-win claims from longtime U.S. residents with less access to counsel.
However, Jeffrey Chase, a New York City immigration lawyer and former immigration judge, told Law360 that no one deciding cases fairly could have a 90% asylum denial rate.
"You're looking to deny cases at that point," he said.
The one recent Trump administration BIA hire who wasn't previously an immigration judge had been a trial attorney at the Justice Department, while many of the other former judges had prior experience at the U.S. Department of Homeland Security or its predecessor agency.
One, V. Stuart Couch, was previously a senior prosecutor for detainees held at Guantanamo Bay, Cuba.
"There's overall just a lack of diversity on the immigration judge bench, which is deeply concerning," said Laura Lynch, senior policy counsel at the American Immigration Lawyers Association. "I think the mark of justice is the idea that decision makers come from a diverse background."
A hire to the BIA announced earlier this month, Philip J. Montante Jr., has come under fire not only for a sky-high asylum-denial rate — 96.3% — but for a history of ethics complaints.
In 2014, the DOJ's Office of Professional Responsibility concluded that Judge Montante's handling of an immigration case was "inappropriate" after an attorney accused him of showing bias when deciding a client's case.
In March, not long before his promotion to the BIA was announced, the New York Civil Liberties Union accused Judge Montante in a proposed class action in federal court of denying detained immigrants' bond requests nearly universally.
According to the advocacy organization, Judge Montante rejected 95% of bond requests between March 2019 and February 2020, bringing him within the top five lowest bond grant rates among the more than 200 immigration judges nationwide.
New Hiring Procedures
The allegedly politicized hiring could be a result of new procedures that were made public Tuesday through FOIA litigation brought by the American Immigration Lawyers Association and the American Immigration Council.
A memo, signed by Attorney General William Barr in March 2019, sped up the hiring process for board members and gave McHenry, the EOIR director, more flexibility in deciding which candidates to select, including by eliminating a scoring system for candidates.
"There's definitely greater flexibility in this plan for the EOIR director to put forward the names for these positions that ultimately he wants hired. That is a big shift," said Lynch of AILA. "Now, the EOIR director really does have full control as to the names put forward."
The Trump administration has also twice expanded the size of the BIA and established a policy office within EOIR, which Chishti said has allowed the office to implement ideological changes to court policies and procedures.
Advocates have pointed to recent BIA decisions that have appeared to fall in line with the Trump administration's stated goals of restricting immigration. Recent board decisions have called on immigration judges to deport migrants subject to the "Remain in Mexico" program if they don't show up to their hearings and made it harder for immigrants to cancel their deportations based on sick relatives and to win bond.
Acting BIA Chairman Garry Malphrus, a former White House official under George W. Bush, was on the panel for all three of those decisions.
"You need insulation between the AG and the individual judges, and that's now missing," Chishti said.
The newly revealed hiring procedures come amid criticisms that the DOJ is pushing judges to speed through cases and is chipping away at their individual discretion in an attempt to clear what has become a historic immigration court backlog.
The Justice Department issued guidance in October laying out stringent deadlines to process immigration court appeals faster and encouraging the board to summarily dismiss certain appeals at an earlier stage in the process before both sides have filed any briefs, and likely before a full transcript of the proceedings is available. The DOJ has also established case quotas for immigration judges and limited their ability to administratively close cases.
A group of senators, led by Sen. Sheldon Whitehouse, D-R.I., wrote to Attorney General Barr in February raising concerns over what they described as "unprecedented politicized meddling."
"The administration's gross mismanagement of these courts further prevents them from providing basic due process. The administration must reverse course to avoid lasting damage to public confidence in our immigration court system," they said.
Due Process Concerns
Trump's two attorneys general have wielded their power to refer BIA cases to themselves more frequently than have attorneys general in past administrations, allowing them to set binding immigration precedent and tighten standards of eligibility to qualify for asylum.
Art Arthur, a former immigration judge and a fellow with the Center for Immigration Studies, which pushes for lower levels of immigration, said that he thought the attorneys generals' decisions "have actually helped to fill that void and provided those bright-line rules to follow," he said.
But others have taken issue with the decisions and claimed they show political interference in the U.S. immigration court system.
Following former Attorney General Jeff Sessions' 2018 ruling restricting asylum for victims of domestic and gang violence, a group of former immigration judges and board members slammed the decision as an "affront to the rule of law" and warned that critical immigration decisions must be "immune from the political considerations that appointed cabinet members are subject to."
Advocates have warned that these hiring and case processing changes could have serious repercussions for the due process rights of people appearing before immigration courts.
"These decisions, they're life or death decisions for those seeking protection," Lynch said. "By promoting judges with unacceptably narrow interpretations of the law, it will ultimately harm those seeking protection."
Arthur stressed that the circuit courts play an important role in keeping the BIA in check if the board issues a faulty decision. He also noted that while some of the BIA decisions have drawn some backlash, the remand rates from circuit courts have remained far lower during the Trump administration than under President Barack Obama.
According to EOIR data, 602 circuit court remands of immigration court decisions were filed in 2019, compared to more than 1,480 in 2015, although advocates cautioned that circuit court decisions typically come several years after the BIA decision is issued.
"People can complain about individual decisions, but those are subjective opinions," Arthur said. "Circuit court remands really are the most objective."
But nonetheless, with stricter standards in place to qualify for asylum and escape deportation orders, many immigrants facing deportation are losing hope, said Chase, the New York immigration lawyer.
"I think people have a lot less hope now when they appeal," Chase said. "Any hope that, OK, the BIA is going to say that these were violations of due process, is fading very quickly."
--Editing by Jill Coffey.