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Immigration Courts: The Neglected Children Of Immigration Reform

July 31, 2013

No Reform For A Troubled
Immigration Court System?

The immigration court system needs repair.

The State Of Our Courts: A View From The Inside,” a report issued by the National Association Of Immigration Judges, revealed:

“The Immigration Courts’ caseload is spiraling out of control, dramatically outpacing the judicial resources and making a complete gridlock of the current system a disturbing and foreseeable probability. The morale of the immigration judges corps is plummeting.”

Yet, immigration courts are rarely mentioned in current immigration reform discussions.

More significantly, the causes and consequences of such problems remain off limits.

No Fan Of Immigration Judges

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As a deportation defense lawyer, I have several misgivings about immigration judges.

  • I’ve disliked their attitude towards immigrants.
  • I’ve disputed their favoritism of government attorneys.
  • I’ve doubted their commitment to due process and fairness.

Not all judges. Not all of the time.

But I have enough suspicions to question whether the entire system is built upon a commitment to justice or a mandate of xenophobia.

My views should not be taken out of context.

Despite professional qualms about judicial tendencies, I know some behaviors are part and parcel of a broken court system.

A Day At Immigration Court

It was closing argument.

The case involved an undocumented immigrant’s request for cancellation of removal. His hardship claim rested on his relationship to his lawful permanent resident wife and three U.S. children.

Government counsel had minimized the myriad connections between a father and his children, between a husband and his wife by addressing my client’s hardship from a narrow elitist perspective.

I began.

“The concept of hardship is not a silver spoon theory.”

Almost as if waiting in ambush, the judge pounced.

“Mr. Batara, I’m admonishing you to refrain from insinuating that I or any government employee was born in a privileged background.”

“Such commentary is rude, insulting, and out of order.”

Before I could respond, the immigration judge descended into a long-winded rampage about immigrants seeking undeserved benefits.

My client put his head down as he sunk lower into his chair.

At such moments, what’s an immigrant to think?

Watching the judge’s fury unravel, I felt a tinge of sorrow for him.

I felt worse, much much worse for my client.

The Impact Of A Flawed Immigration Court System

Although surreal, as an immigration trial veteran, the experience was not novel.

The judge had lost sense of time and place, decorum and decency.

The longer he ranted, the stronger my client’s appeal.

Unfortunately, such outbursts at immigration court hearings are not uncommon.

In a post written for the Huffington Post, Law Professor Bennett Gershman described how federal appellate courts have often viewed such actions in an unfavorable light.

Federal courts, he points out, have frequently condemned the conduct of immigration judges as hostile, intimidating, insulting, intemperate, sarcastic, mocking, and contemptuous.

In addition, Gershman notes, their decisions have been criticized as irrational, arbitrary, incoherent, incomprehensible, and indecipherable.

Not exactly the type of words you’d expect to be used to describe judicial conduct.

The Two Pillars Of Judicial Fixture

In the attempt to elevate the immigration court system to the forefront of reform discussions, the NAIJ report provided a strikingly honest appraisal of their own shortcomings.

The Absence Of Judicial Independence

  • As a component of the Department of Justice, the Immigration Courts is part of an executive agency with a prosecutorial mission that is frequently at odds with the goal of impartial judicial adjudication.
  • Despite the fact that the Department of Justice does not control the flow of people into the immigration court system, it has become a serious impediment to the independence of the courts.
  • Immigration Judges’ actions have the effect of stacking the deck in favor of the DHS against private litigants, in part because both Immigration Judges and DHS prosecutors who appear before them serve the same client, the U. S. government.

Insufficient Resources And Court Overload

As I noted in Reforming The Immigration Court System: Problems, Solutions, And Obstacles, many problems with the immigration court system are due to case overload.

Too many cases and too few judges is not a formula for success.

Not much has changed since I wrote that article.

Not much has changed since I filmed the above video.

According to the NAIJ Report, immigration judges still struggle with an average caseload unmatched by any U.S. court system.

“Tasked with applying a body of law compared most often to tax law in its complexity, immigration judges carry an average docket of more than 1500 cases. For perspective, the average caseload of a U.S. district court judge is 440. Moreover, despite these crushing dockets, Immigration Judges lack support staff, conducting their proceedings with the assistance of only ¼ a judicial law clerk’s time, without bailiffs or court reporters.”

A Deeper Glance At Immigration Court Problems

Having practiced as an immigration lawyer in San Diego for almost two decades, I agree with NAIJ’s assessment.

However, I don’t think it goes far enough.

Merely granting immigration courts greater independence and providing them modernized resources will not ensure justice for immigrants.

The Senate immigration reform bill includes a provision for adding 75 new judges and 30 new BIA members per year for three years.

This might, depending on deportation and detention policies, reduce the case backlog.  It does not reinforce judicial independence.

The NAIJ report, for obvious self-serving purposes, emphasizes justice delayed is justice denied.

Not always.

Expedited removal hearings do not guarantee fairer immigration outcomes.

The requested improvements, without more, might worsen the ability of those facing deportation to defend themselves.

Rather, improvements made to the immigration court structure must be accompanied by changes to existing immigration laws, rules, and regulations – as well by adjustments to current detention and deportation policies.

Reformers need to remember the political modifications of the late 1990s and early 2000s imposed on immigration courts, which created many of their current independence and overload problems, also led to a demise of due process in detention matters and deportation cases.

The NAJI report, perhaps unwittingly, touched upon this nerve.

“Because of increased enforcement priorities over recent years,” wrote the NAIJ, “more and more individuals are detained and the quasi-criminal nature of immigration law has never been more apparent.”

And as the quasi-criminal nature of immigration has become more apparent, so has the need to revamp our deportation and detention policies.

In short, fixing the structure of immigration courts without fixing the substance of immigration law will not repair our system of immigration justice.

By, Immigration Law, Policy, And Politics

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