Immigrants, asylum seekers deserve their fair day in court

Immigrants, asylum seekers deserve their fair day in court
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Speed it up. That’s the essence of a new directive for immigration judges, just handed down by the Department of Justice (DOJ).

The Trump administration has announced production quotas for these judges, in an effort to reduce the enormous backlog of cases. Under the new standards, which take effect October 1, judges must now complete 700 cases a year to earn a satisfactory grade. Judges’ compliance with such metrics will be directly tied to their performance reviews. Attorney General Jeff SessionsJefferson (Jeff) Beauregard SessionsThe 'pitcher of warm spit' — Veepstakes and the fate of Mike Pence FBI officials hid copies of Russia probe documents fearing Trump interference: book Tuberville breaks DC self-quarantine policy to campaign MORE wrote in a December memo that the new standards would aid in “the efficient and timely completion of cases and motions.”  

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What’s wrong with these new metrics? Everything. Putting pressure on immigration judges to resolve cases quickly is no way to ensure the fair administration of justice. The new standards will compromise the due process rights of immigrants as well as the integrity of our immigration courts. And tying the number of cases resolved to judges’ performance reviews amounts to an improper attempt by the Trump administration to exert direct influence over the adjudicative process.  

Immigration courts are unique because they are not a fully independent branch of the judiciary. Rather, immigration courts fall under the purview of the DOJ and Attorney General Sessions, who has made no secret of his desire to increase prosecutions of undocumented immigrants and deportations. People might be surprised to know that the U.S. only has about 350 sitting immigration judges. That’s one reason why the number of backlogged immigration cases has reached nearly 690,000.

Under the new DOJ metrics, immigration judges will have to complete about three cases a day. While that might not sound like a lot, consider that immigration judges deal with non-English speakers who are often wholly unfamiliar with our justice system. Because they are not entitled to court-appointed counsel, many represent themselves, including children. A single asylum case, for example, could involve obtaining testimony and documents from a traumatized victim of abuse, a social worker, immigration agents, and authorities and witnesses in an asylum seeker’s home country. Not only are these complicated matters, the decisions that immigration judges make can have life-or-death consequences.

Under the new DOJ standards, immigration judges who complete between 560 and 700 cases a year will be deemed “needs improvement,” and those who complete less than 560 a year will be considered “unsatisfactory.” Another benchmark mandates that judges rule on the same day on every plea by potential asylum seekers seeking to pass the initial test of establishing “credible” or “reasonable” fear. Judges who fail to meet their quotas can be fired, or moved around the country (which can be used as a way to encourage them to retire).

These specific metrics are problematic because they create an incentive for immigration judges to weigh external factors — like their own career prospects — as they make their decisions. Looming over judges’ heads is the knowledge of the type of outcomes that the current DOJ desires: more denials of asylum claims, and more deportations.

When news first broke of the proposed quotas for judges last fall, a spokeswoman for the National Association of Immigration Judges called them “a huge, huge encroachment on judicial independence,” and noted that immigration judges are not assembly-line workers. She’s right. Besides, a recent government report found that nearly 90 percent of continuances (postponements) on the immigration dockets were attributable to factors outside the control of judges.  

True, the backlog in our immigration courts is a real problem. The average immigration case takes roughly 700 days to wind its way through the system. But the DOJ’s metrics will make the problem worse. Because judges will have to closely monitor how long they spend on each case, they will be spending more time on paperwork and less on actual casework. Some immigrants will likely appeal their orders of deportation, alleging that the DOJ metrics caused them to be denied their Constitutionally-guaranteed due process, which will then exacerbate the backlog of cases.     

There are better solutions to the backlog in the immigration court system. For starters, the country needs more immigration judges. The Trump administration could also stop sending some judges to the border to prioritize removals there, which leads to cases piling up at home. Or maybe the Trump administration could cut back on their arrests of immigrants classified as “non-criminals” by Immigration and Customs Enforcement, which have surged under Trump.

The new DOJ quotas threaten the impartiality of immigration judges. Like everyone else, immigrants deserve their fair — and not rushed — day in court.

Raul A. Reyes is an attorney and contributor to NBCNews.com and CNN Opinion. Follow him on Twitter @RaulAReyes.