8,000 new ways the Trump administration is undermining immigration court independence

8,000 new ways the Trump administration is undermining immigration court independence
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The Trump administration has persistently devised ways to compromise the independence of immigration judges and prevent them from reaching fair, impartial decisions.

Now it has come up with 8,000 more.

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Buzzfeed reports that U.S. Immigration and Customs Enforcement (ICE) has sought to reopen almost 8,000 cases this fiscal year that immigration judges had temporarily removed from the court docket through a practice called “administrative closure.”

 

Among various benefits, that practice enabled judges to pause certain cases — so that, for example, immigrants could pursue legal status outside of the court system — and prioritize others. Altogether, administrative closure proved a vital procedural tool for preserving due process and enhancing docket efficiency.

Despite these merits, in June 2018 Attorney General Jeff SessionsJefferson (Jeff) Beauregard SessionsTrump attack on Sessions may point to his departure Hillicon Valley: Trump's exclusive interview with Hill.TV | Trump, intel officials clash over Russia docs | EU investigating Amazon | Military gets new cyber authority | Flynn sentencing sparks new questions about Mueller probe Sessions in Chicago: If you want more shootings, listen to ACLU, Antifa, Black Lives Matter MORE published a decision in Matter of Castro-Tum that all but eliminates immigration judges’ authority to administratively close cases. The opinion also compels immigration judges to reopen previously closed cases at ICE’s request. On cue, those requests are rolling in at almost double the rate seen under the prior administration’s final two years.

Unfortunately, 8,000 is only the beginning. In a June 2018 email, ICE stated its intention to recalendar most administratively closed cases, which total over 350,000. While ICE’s capacity to prosecute these hinges on its available resources, the memo will doubtless force a multitude of cases back onto the docket without regard to the grounds on which judges closed them.

The attorney general’s decision, along with ICE’s email, holds dire implications for an immigration court backlog that already exceeds 730,000 active cases. Though the administration professes a goal of halving that number by 2020, on its face ICE’s email threatens a nearly opposite outcome. Adding, for example, 300,000 administratively closed cases to the existing backlog would swell it by more than 40 percent, further clogging the system and delaying and denying justice to the individuals within it.

Even more fundamentally, forcing courts to reopen and hear cases already deemed unsuited to proceed prevents judges from truly judging. It weakens their ability to manage their own dockets, conserve limited court resources, account for case-specific circumstances, and observe due process as the law requires.

These reopened cases are only one front in a multi-pronged assault on immigration judges’ independence. In March 2018, the administration announced that starting in October it will impose new and draconian case completion quotas on immigration judges, tying their performance reviews to the number of cases they finish.

This policy will pressure judges to race through dockets, making decisions in the interests of speed rather than justice. Earlier this month, after Immigration Judge Steven Morley extended a proceeding to ensure protection of due process rights, the administration removed Morley from the case and replaced him with a hand-picked successor who swiftly ordered a minor child’s deportation.

And just last week, the attorney general published an additional precedent decision, Matter of L-A-B-R, that limits the discretion of immigration judges to grant “continuances,” another key docketing tool. If, despite these and a myriad of further encroachments, some measure of judicial independence remains alive in our immigration system, cases forcibly reopened under Castro-Tum may amount to death by 8,000 cuts and counting.

The human costs of such interference in immigration courts reveal why judicial independence is essential. Though immigrants have long suffered due process violations on a systemic level, immigration judges vested with proper decisional authority can help balance the scales by issuing rulings guided by law instead of President TrumpDonald John TrumpLondon terror suspect’s children told authorities he complained about Trump: inquiry The Memo: Tide turns on Kavanaugh Trump to nominate retiring lawmaker as head of trade agency MORE’s mass deportation agenda. The ongoing rollback of that authority threatens instead to turn judges into rubber stamps for the administration and courts into deportation machines.

Congress must conduct oversight to hold the administration accountable for undermining judicial independence. But oversight isn’t enough. The House and Senate should take up and pass legislation establishing an Article I immigration court system, freeing immigration judges — whom current law makes employees of the Department of Justice and Attorney General Sessions — from the political influence of any administration. Only then can these judges reach fair, impartial decisions that uphold the law and reflect America’s foundational commitment to an independent judiciary.

There are at least 8,000 reasons to allow judges to judge. Let’s give them that chance.

Jason Boyd is the policy counsel at American Immigration Lawyers Association.