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Can The Immigration Court System Be Fixed?

April 11, 2011

Reforming The Immigration Court System: Problems, Solutions, And Obstacles

A few years ago, in my capacity as a Riverside immigration lawyer, I was interviewed by a graduate student writing his master’s thesis on the immigration court system.

In particular, I criticized the lack of fairness in deportation cases, the bias of immigration judges, and the flawed nature of condensed hearings and trials.

I stressed the need for an overhaul of the entire system.

After talking to this fellow off-and-on for a few weeks, he said the presiding immigration judge and I disagreed on almost everything related to immigration law and the immigration legal system.  His thesis was turning into a two-person debate, almost as if we were talking directly to each other.

Given past interactions with my adversary, I was not surprised by our opposing views.

I emphasized my respect for the judge, stressing he was one of my preferred adversaries because our disagreements remained intellectual disputes at all times.   Other judges, I confided, seem to take my assertiveness as a personal attack or professional rudeness.

Again, the young man told me the judge said almost the same about me.  I chuckled.  At least we agreed on our views about each other.

The Quest To Overhaul The Immigration Court System

Earlier this week, the Executive Office For Immigration Review (EOIR) issued a long overdue Ethics and Professionalism Guide For Immigration Judges.

I was surprised to find the inclusion of four provisions validating my “debate” position with the presiding judge:

  • Section IV, Professional Competence
  • Section V, Impartiality
  • Section VIII, Acting In A Neutral And Detached Manner
  • Section IX, Acting With Judicial Temperament And Professionalism

It was not the only news about our immigration courts this week.  A widely-circulated article entitled  How To Fix Massive Crisis In Immigration Courts discussed several problems plaguing our immigration court system.

The Effects Of Immigration Case Overload

Many of the problems with the immigration court system are due to case overload.

During 2010, the Department of Homeland Security filed 325,326 new immigration cases.  Yet, there are only 270 immigration judges and 58 immigration courts handling deportation defense hearings across the country.  Being an immigration trial attorney, I’ve seen firsthand how too many cases and too few judges is not a formula for success.

Although some short-term fixes have been proposed, the politics of immigration reform have prevented enactment of potential solutions.

For example, in a well-documented study last year, the American Bar Association recommended hiring 100 additional judges.   To date, only 38 new judges have been added.  It’s unlikely any more will be hired in the near future.  For politicians opposed to immigration reform, fixing the immigration court system is an undesired nuisance.

As noted in Deportation Defense: ICE Modifies Immigration Removal Policy For Green Card Applicants, even the U.S. Immigration and Customs Enforcement jumped in to help reduce the court’s overload.  Under their proposal, ICE leaders recommended cases of immigrants be reviewed immediately upon detention.  Where appropriate,  they suggested deportation cases should not filed at immigration court.

Their efforts failed.

Immigration reform opponents cried foul play.  After they put pressure on the Obama administration, the ideas quickly died.

The net effect of overload is undue stress on immigration judges and our immigration legal system.

Judges are constantly short on time.  They have limited time for legal research.  They have limited time for immigration hearings and trials.  Much of the inappropriate judicial temperament and professionalism exhibited at times by immigration judges can also be traced to the same issue.

The Need For An Independent Immigration Judiciary

However, the biggest flaw is the lack of judicial independence.

It’s common knowledge immigrants face a system slanted against them.  The law is designed to limit the amount of immigrants we accept each year.

Right or wrong, this means immigrants, who are placed in immigration court hearings, must overcome odds far lower than 50-50 to win legal residency.

Additionally, they face judges who work for the same employer – the federal government – as government lawyers who seek the deportations.

In fact, just a few years ago, during the Bush Administration, political patronage corrupted the immigration court system.

Under former Attorney General Alberto Gonzalez, immigration judges were chosen based on their immigration views and political loyalties, not their legal knowledge and professional qualifications.  Many appointees had little, if any, immigration law experience.

Returning to my office after immigration hearings in those years, I sometimes joked it seemed like I had to educate the new judges about various immigration law provisions.  Little did I know, my comments were on point.

Fortunately, this political bias ended after just a few years.

Still, most immigration judges take an anti-immigrant stance to adjudicating cases.  Their posture is dictated by a fear of opening floodgates for immigrants.  Thus, they place excessively restrictive interpretations on many immigration rules and regulations.

Whether or not they admit it, as an arm of the federal government, immigration judges have a propensity to protect positions asserted by government attorneys in deportation and removal proceedings.

As a result, immigrants are confronted not only by laws slanted against them, but also  by judges tilted in an antagonistic posture.

In my mind, under such a setup, there can be no true judicial impartiality, neutrality, or detachment.

The solution, as the ABA has also recommended, is an independent immigration tribunal.  In other words, the immigration court must be an independent entity, separate from the government branch whose attorneys come before it on a regular basis.

This would not eliminate all the problems of our current immigration court system.  But it would elevate immigration courts to a level of respect beyond that of unwanted step-children.

In other words, a complete overhaul of our immigration system is still needed.

By , Immigration Law, Policy, And Politics

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