The US immigration courts, charged with determining the fate of undocumented immigrants and refugees, look a lot like a regular court system at first glance, with robe-clad judges hearing cases in courtrooms and handing down rulings from a dais.
But these courts aren’t part of the judiciary branch; they sit under the umbrella of the US Department of Justice. The judges who oversee proceedings are essentially government lawyers. Defendants often go without legal representation. And although the immigration courts system has an appeals body, the Board of Immigration Appeals, and certain of its decisions can be challenged in the federal appellate courts, they can also be reversed or overruled by a single presidential appointee.
Currently, that’s Jeff Sessions, US president Donald Trump’s recently confirmed pick for attorney general. As a US senator for Alabama, Sessions earned a reputation as one of the staunchest immigration opponents in the US Congress. Now he’s in charge of the Justice Department and its Executive Office for Immigration Review (EOIR), giving him the authority to direct judges on how to interpret the law and which cases to hear. He also has the ability to fire them.
That widespread power will be under the constant strain of a bulging case backlog in the immigration court system, which has been colorfully described as a “a diorama of dysfunction,” “chaos,” and the “least competent federal agency.”
It’s not a promising scenario for an organization with a mission to “fairly, expeditiously, and uniformly” administer the nation’s laws on immigration, a core issue of Trump’s administration.
The troubling potential for abuse in the system existed long before Trump won election. EOIR critics, including its judges, say its very design makes it prone to mismanagement under any White House administration.
Unlike federal and state court systems, which constitute their own branch of power—the judiciary—immigration courts sit under the executive power of the US president. The attorney general overseeing the system, a cabinet appointment, is required to be an impartial arbiter between another cabinet member, the head of the US Department of Homeland Security, and the immigrants that the agency prosecutes.
An EOIR spokeswoman says the two agencies have different missions and are entirely separate from each other. Either way, it’s an arrangement that takes away independence from the courts, making them vulnerable to conflicts of interest and abuse, critics say.
Under George W. Bush’s attorney general Alberto Gonzales, immigration judges were hired based on their Republican and conservative credentials, according to the results of a Justice Department internal investigation released in 2008, after Gonzales had stepped down. Another Bush attorney general, John Ashcroft, reconfigured the Board of Immigration Appeals, the body that settles contested decisions by immigration judges. An analysis by a former congressional staffer suggests he removed members who tended to side with immigrants. Ashcroft called those claims ridiculous; his critics called the move a purge.
Another weakness in the EOIR system is the lack of protections for immigration judges, such as life appointments, to guarantee them the freedom to do their job without fear of retribution if their rulings prove unpopular with the administration. “Immigration judges can be disciplined or downgraded in a performance review for insubordination to a supervisor and thereby punished for their good faith interpretation of the law,” wrote Dana Leigh Marks, president of the National Association of Immigration Judges union, in the Winter 2016 issue of International Affairs Forum.
EOIR’s unique structure also makes the whole agency an easy vehicle to advance the policies of whoever occupies the White House—sometimes at the expense of due process. During the Obama administration, for example, immigration judges were ordered to set aside their existing dockets to focus on a surge of Central American immigrants. At the time, the Department of Homeland Security was struggling to manage the influx, which included many women and children requesting asylum. Officials believed that the long waits to appear before an immigration court, during which immigrants can legally stay in the country, were acting as a draw. So the idea was to both quickly process the new arrivals from Central America and deport those who were eligible, to discourage others from coming to the US.
The docket reshuffling was done at the expense of immigrants who’d already been waiting for years for a hearing. They were pushed to the back of the line. Immigration lawyers say that kind of delay can have real consequences, from documentation growing out of date to the uncertainty of having a life-changing case hanging. As the adage goes, justice delayed is justice denied.
There are other signs of an unwieldy, inefficient system.
At a time when most courts, including local ones, are using electronic filing systems, EOIR still mostly relies on paper documents. Former immigration judge Paul Wickham Schmidt describes mounds of paper occupying virtually every surface of the immigration court in Arlington, Virginia, from which he retired in June. “It’s a miracle that the fire department hasn’t shut the whole thing down,” he says.
The stacks of paper—a constant reminder of the piling workload—not only made for a depressing work environment, he says, but made resolving cases more time-consuming. In his experience, he says, files would sometimes get lost, and data improperly transcribed. That puts a drag on a court system that is already chronically behind.
There are currently more than 540,000 cases pending. Divided by the 301 judges EOIR currently employs, that amounts to nearly 1,800 cases per judge—and that’s before the promised crackdown on undocumented immigrants promised by Trump.
A spokeswoman for the EOIR says the agency is actively hiring more judges, but says it’s a complex and lengthy process.
In one of his executive orders on immigration, Trump called for the attorney general to immediately deploy immigration judges to detention facilities, presumably in a bid to speed up the cases of the people held there.
But the pressure to move quickly, together with the mountain of cases already clogging the system, arguably represents a huge temptation to skimp on due process to get through it.