How Can the Independence of Immigration Judges Best Be Assured?

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Jeffrey Johnson is a legal writer with a focus on personal injury. He has worked on personal injury and sovereign immunity litigation in addition to experience in family, estate, and criminal law. He earned a J.D. from the University of Baltimore and has worked in legal offices and non-profits in Maryland, Texas, and North Carolina. He has also earned an MFA in screenwriting from Chapman Univer...

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UPDATED: Nov 15, 2018

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USCISBefore he was forced out of office, former Attorney General Jeff Sessions imposed a quota system on Immigration Judges that requires each judge to decide 700 immigration cases each year. The quota system raises concerns that Immigration Judges will be unable to assure that each person coming before the Immigration Court will receive a fair hearing.

The quota system, coupled with unfounded attacks upon their integrity, has frustrated Immigration Judges. Calls for reforms that would protect Immigration Judges from political pressure to decide immigration cases in a way that satisfies politicians, rather than justice, are becoming more urgent.

What Are Immigration Judges?

Judges in the federal judicial branch of government, including the trial judges who preside in federal district courts, are appointed by the president and confirmed by the Senate. Administrative law judges, on the other hand, are part of the executive branch, not the judicial branch. Administrative law judges (ALJs) decide cases that are brought before administrative agencies.

Many regulatory agencies, such as the Food and Drug Administration, use ALJs to determine whether penalties should be assessed when regulations are allegedly violated. Other agencies, such as the Social Security Administration, use ALJs to resolve appeals from the agency’s decisions (such as a decision not to award SSDI benefits).

The U.S. Citizenship and Immigration Services (USCIS) is the federal agency that handles immigration issues. Administrative law judges who decide immigration cases for USCIS are appointed by the Attorney General. An ALJ who presides in an Immigration Court is known informally as an Immigration Judge.

How Do Immigration Judges Decide Cases?

An extensive body of law has been developed by Congress, by USCIS regulations, and by court decisions to cover immigration proceedings. The task of an immigration judge is to determine any facts that are in dispute and to apply the law to those facts to arrive at the decision that the law requires.

All individuals who appear before an ALJ, including Immigration Judges, have the constitutional right to due process. That right applies to “any person” who may be deprived of life, liberty, or property by the government’s action. The right to due process does not depend on citizenship or on lawful presence in the country.

A controversial law permits “expedited removal” of certain aliens without due process. The law grants the right to a hearing before an Immigration Judge to some aliens prior to removal, while granting broad discretion to immigration authorities to remove aliens without due process if they are deemed “inadmissible” for certain reasons, including failure to obtain a visa.

The law nevertheless allows aliens who are facing expedited removals to apply for asylum if they fear persecution. The denial of an asylum request entitles the alien to an administrative hearing before an Immigration Judge.

Administrative regulations have allowed the expedited removal of aliens from the country without due process if they have no documentation, have been in the country for less than 14 days, and have not traveled more than 100 miles from the border. Those expedited removals are based on the fiction that a quick removal is essentially the same as turning someone away at the border who has not entered the country.

While aliens subject to expedited removal may never see an Immigration Judge, recent statistics reveal that almost 700,000 cases are pending before the approximately 334 Immigration Judges in the Immigration Courts. Some involve people who entered the country without valid documents, some involve people who overstayed a visa or violated visa conditions, and some involve innocent American citizens who are not subject to removal.

Procedural fairness is an essential safeguard against mistaken decisions. The fact that immigration authorities have repeatedly attempted to deport American citizens (sometimes successfully) speaks to the importance of assuring that fair procedures are in place to minimize the risk of removal orders being entered against individuals who should not be deported.

Can Immigration Judges Make Independent Decisions?

Like their counterparts in the judiciary, immigration judges must base decisions on the law. When they decide disputes of fact, they must be neutral, determining the truth as best they can, without favoring one side or the other.

The right to a neutral decision-maker is fundamental to due process. While different judges may interpret the law in different ways (because laws are never written with absolute clarity), they are required to set aside biases or favoritism and to do their best to determine the facts and to apply the law impartially. The president’s suggestion that due process does not apply to illegal immigrants has been rejected by courts as contrary to the text of the due process clause of the Fourteenth Amendment.

Immigration judges, however, have expressed concern that their independence is threatened. Calls from the Trump administration, including former Attorney General Jeff Sessions, to resolve more cases more quickly, and the Justice Department’s imposition of a quota that Immigration Judges are now required to meet, have occasioned the fear that promptly ruling against immigrants is the only way to assure job security.

Giving an immigrant a full and fair hearing takes more time than saying “no.” Judges who want to give immigrants a chance to find a lawyer, to gather evidence, or to apply for legal residency are frustrated by a quota system that pressures them to rule against the immigrant and move on to the next case.

The National Association of Immigration Judges has proposed making the Immigration Court an independent body, similar to the Tax Court, to protect it from political pressure. Hiring more Immigration Judges would be another way to address backlogs in the immigration courts. Either or both solutions would be more consistent with the nation’s commitment to fairness than pressuring neutral judges to deprive immigrants of their right to procedural fairness.

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