In immigration courts, judges report to the nation’s top prosecutor

U.S. Attorney General Jeff Sessions speaks about carrying out President Donald Trump's immigration priorities at the U.S. Attorney’s Office for the Western District of Texas in Austin on Friday, Oct. 20, 2017. 
U.S. Attorney General Jeff Sessions speaks about carrying out President Donald Trump’s immigration priorities at the U.S. Attorney’s Office for the Western District of Texas in Austin on Friday, Oct. 20, 2017. 
Bob Daemmrich for The Texas Tribune

The case of Reynaldo Castro-Tum — a Guatemalan migrant who crossed the border age 17 — had for years been in the hands of a Philadelphia immigration judge named Steven Morley. Then Attorney General Jeff Sessions took it over.

By April 2016, Castro-Tum had missed five immigration court hearings, and Morley was concerned that the migrant — whose address was listed as a Philadelphia-area trailer park where migrants often came and went — wasn’t receiving the court’s notices. So Morley suspended the case through a process called “administrative closure” and asked immigration officials for more information about Castro-Tum’s whereabouts.

Enter Sessions, the nation’s top prosecutor and the ultimate supervisor of the 330 immigration judges who hear deportation cases across the country. This spring, he assigned the case to a different immigration judge, who ordered Castro-Tum deported after he again failed to appear in court.

And by the time the deportation order was made, Sessions had already used the case to set a more important precedent. In May, he took away immigration judges’ power to suspend cases in the way Morley had, arguing that doing so too often allowed noncitizens to linger unbothered in the United States. And he reassigned dozens of Morley’s other cases in a move that the immigration judges’ union decried as an outcome-oriented power grab. The union filed a formal grievance over the incident last week.

The case of Castro-Tum exemplifies the near-absolute power that the nation’s top law enforcement officer has over what is ostensibly an impartial judicial system. Immigration judges, like their colleagues everywhere from bankruptcy courts to the federal bench, are expected to consider both sides of an argument and to judge fairly. But the small pocket of the American judiciary that hears deportation cases sits in a different branch of government: From their post in the Department of Justice, judges report to a partisan prosecutor who has the power to overrule their decisions. In such a system, some wonder, how can justice be blind?

Frustration with that arrangement didn’t begin with President Donald Trump’s administration. But Sessions, experts say, has more effectively utilized the peculiar structure of the immigration court system to influence and sometimes overturn the outcome of immigration hearings, all in furtherance of the Trump administration’s policies.

Those priorities, as critics see them, are to deport as many migrants as possible as quickly as possible.

“When they’re not happy with the way the judge is handling a case, they’re re-assigning it to somebody else,” said Judge A. Ashley Tabaddor, the president of the National Association of Immigration Judges, the judges’ union. “By interfering with this process and removing the case pending before Judge Morley, [the DOJ] violated the independence of the judge’s decision-making authority.”

Sessions is working, she warned, “to basically turn us into law enforcement officers in a robe.”

The Justice Department “stepchild”

The structure of immigration courts, unique in the federal government, has long been criticized for its potential for conflicts of interest. In any removal proceeding, the Trump administration is the prosecutor, an influence on the judge and the maker of the rules. The migrant forced to confront the federal government on these terms is not guaranteed an attorney.

If immigration courts were a baseball game, the Trump administration would coach one team, serve as league commissioner and reserve the right to overrule the umpires. The other team would often have to play without a coach.

“I wouldn’t want to be in a court system where my adverse party was in charge of the system — it’s fundamentally unfair and unwise,” said Paul Schmidt, a former immigration judge and previous chair of the Board of Immigration Appeals, the Justice Department’s appellate body for immigration courts. “How does the chief prosecutor of immigrants and asylum-seekers get to run the court system?”

One answer is that immigration enforcement and border security have long been entrusted largely to the executive branch.

Immigration courts have been under the Justice Department since 1940, but immigration judges were not functionally separate from immigration enforcement until 1983, when the Executive Office for Immigration Review was created. Before that, the line between those responsibilities was even blurrier: Judges and prosecutors worked side by side within the same agency under the Immigration and Naturalization Service.

Sessions has said the major changes he’s made to the immigration court system are all aimed at decreasing the colossal backlog of immigration cases — as of June 2018, it was over 730,000 cases, pending for an average of nearly two years.

Under the Trump administration, EOIR officials have said shifting the immigration courts out of the Justice Department is unnecessary. At a U.S. Senate hearing in April, EOIR director James McHenry touted the success of Sessions’ reforms and said, “Our current home in the Department of Justice … offers EOIR the best opportunity … to improve the immigration court system even further.”

And a spokeswoman said this week that creating a separate agency to handle the immigration courts would take significant resources — an expenditure “we believe to be unnecessary at this time.”

“The type of civil administrative adjudications that EOIR conducts are designed to be handled within the structure of the Department,” said spokeswoman Kathryn Mattingly.

Immigration judges are not elected or appointed; they apply, like any other civil servant, to the relevant division of the Department of Justice. As civil servants, immigration judges are difficult to outright fire, even if their supervisor doesn’t approve of their decisions. And some judges hew closer to the any given president’s line than others. One judge in El Paso has denied 98.8 percent of the asylum cases he’s heard from 2012 to 2017; one in New York denied just 3 percent, according to government data compiled by the Transactional Records Access Clearinghouse at Syracuse University.

Since Trump took office, the number of noncitizens ordered deported by an immigration judge has steadily climbed, from just under 90,000 in 2016 to 116,000 in 2017 and a projected 141,000 in 2018, according to Transactional Records Access Clearinghouse data. Under President Barack Obama, the trend was the opposite, with deportations steadily declining after 2009. That’s just one measure of the influence of an administration’s policies on immigration courts.

If they don’t adhere to executive branch priorities, judges “can absolutely be demoted, moved around, moved to a less-desirable desk position,” said Denise Gilman, director of the immigration clinic at the University of Texas School of Law.

“There are real consequences for failures to fall in line,” she said.

Tabaddor said that unlike their counterparts in most courts across the country, immigration judges lack the authority to control their dockets and order discipline in their courtrooms — even when attorneys from the Department of Homeland Security, considered a “sister agency,” are “unprofessional or incompetent.”

“The department does not want to provide judges with that authority because they don’t want them to exercise it over DHS attorneys,” Tabaddor said.

The immigration courts are, Tabaddor said, something of a “stepchild” within a department devoted to law enforcement.

The attorney general’s power to shape the outcomes of immigration cases is hardly new. Neither are concerns that the system offers something far from impartial justice. Under President George W. Bush, immigration judges were hired based on applicants’ partisan preferences, in violation of civil service laws. Allegations of politically motivated hiring have dogged the immigration courts in the years since. And under Obama, judges were directed to reshuffle their dockets to prioritize the cases of unaccompanied minors, whose numbers surged in 2014.

But the long-standing conflict between immigration policy and justice for migrants has come to a head under Sessions, who has taken advantage of that power more than his predecessors, according to experts, attorneys and some current and former immigration judges.

“There are definitely long-term structural problems — resourcing, issues of placement, issues in terms of the court being under a prosecutorial agency,” said Carol King, who worked as an immigration judge in San Francisco for more than two decades before retiring last year. “So by no means were we without problems before. I just think this administration has taken it way beyond — it’s a new level.”

Major shifts under Sessions

In 2016, the federal Board of Immigration Appeals ruled in favor of an asylum-seeking Salvadoran woman, identified by her initials as A-B. A-B said she was fleeing a physically and sexually abusive husband; the board ruled that she qualified for refuge in the United States because her government had shown particular failings in protecting women from such harms.

This June, Sessions overruled that decision, writing, “The mere fact that a country may have problems effectively policing certain crimes or that certain populations are more likely to be victims of crime, cannot itself establish an asylum claim.”

His decision, which guts a precedent from the Obama administration, applies not just to A-B herself but to nearly all migrants looking to the United States for refuge from domestic abuse or gang violence.

It wasn’t the first time Sessions had significantly shifted U.S. asylum policy using nothing but his authority over the immigration courts. In March, with the matter of E-F-H-L — the initials of a Honduran migrant who fled the country after his uncle was murdered — Sessions ruled that migrants are not always guaranteed an evidentiary hearing in their asylum cases. In Castro-Tum, he took away an immigration judge’s significant discretionary power to administratively close a case. And according to Greg Chen, the government relations director for the American Immigration Lawyers Association, Sessions is poised to revoke the ability of immigration judges to issue a “continuance” in immigration cases. He took up a case on the issue in March, and is expected to rule “imminently,” Chen said.

Continuances and administrative closures grant migrants temporary reprieve from deportation and give immigration judges the freedom to delay adjudicating cases that may be tangled up in other immigration processes or require further information. Sessions’ major decisions, experts said, represent encroachments on an immigration judge’s independence — which ultimately means encroachments on a migrant’s due process rights.

It’s the natural consequence when an immigration hawk takes the helm of a court system aligned with the immigration enforcement agency, experts said.

“The structural problems with our immigration court system being housed within the DOJ have been longstanding,” Chen said. “This administration, the extreme policies that the Trump administration is now implementing … has made the structural problem all the more stark. It’s brought the problem of the immigration courts being housed under the prosecutorial arm of the Department of Justice to a crisis point.”

Other major shifts by Sessions have come masked as mere scheduling tweaks or performance evaluations.

In April, the Justice Department announced that immigration judges would have to meet certain quotas — 700 cases a year — to remain in good standing. The goal, the agency said, was to decrease the enormous immigration case backlog.

But the impact, immigration judges and attorneys have argued, was to order “assembly-line justice.” The quotas force judges to rush through decisions that can mean life or death for the migrants before them.

“Parties who appear before the court will be wondering: ‘Is the judge issuing the decision because she’s trying to meet a deadline or a quota? Or is she really applying her impartial adjudicated powers?’” Tabaddor said at the time.

“The standards which justice demands”

When Congress tackles the problem of immigration courts system, lawmakers often identify the deep backlog as the system’s major flaw, and they propose hacking away at it with more Justice Department judges and more Justice Department courts. A June proposal by U.S. Sen. Ted Cruz, R-Texas, would double the number of immigration judges at work in the country.

But experts and some judges themselves say there’s no use expanding a fatally flawed system. Several major stakeholder groups have instead proposed a complete overhaul.

Both the American Bar Association and the Federal Bar Association have called for an independent court system similar to tax court. The American Immigration Lawyers Association has proffered a similar proposal. And the National Association of Immigration Judges has long been one of the system’s fiercest critics.

In an April letter to a U.S. Senate committee, the immigration lawyers association wrote that “the U.S. immigration court system does not meet the standards which justice demands.” The federal bar said the current system “represents a pale reflection of the kind of professionally administered adjudicative system that Congress and the American people expect.”

Others were more blunt.

“Obviously,” Schmidt concluded, “the whole thing is sort of a farce.”

Disclosure: The University of Texas has been a financial supporter of The Texas Tribune, a nonprofit, nonpartisan news organization that is funded in part by donations from members, foundations and corporate sponsors. Financial supporters play no role in the Tribune’s journalism. Find a complete list of them here.



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