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Immigration judges pushing for independence

Say department impedes timely, open operation

US Attorney General Eric Holder spoke during a naturalization ceremony at the Department of Justice in May.Win McNamee/Getty Images

Federal immigration judges are urging Congress to liberate them from the Department of Justice, a dramatic bid for independence that could eventually open immigration court records to the public for the first time in US history.

As lawmakers debate immigration legislation, the judges have intensified lobbying efforts in Washington with phone calls, letters, and personal trips to the Capitol, armed with support from national legal organizations including the American Bar Association and the Federal Bar Association.

The judges say the backlogged immigration courts need the freedom to control their own budgets, issue timely decisions, and prevent unfair treatment of judges — all things they maintain are not happening within the Justice Department bureaucracy.


“The DOJ has contributed to selling the Immigration Courts short rather than defending their independence or enhancing their stature,” the judges’ union, the National Association of Immigration Judges, said in a report given to Congress. “This has serious and insidious repercussions.”

A move out of the Justice Department could also allow immigration judges to decide which court records be kept from the public, similar to regular courts.

The judges’ call for independence comes as labor unions in the Department of Homeland Security, which runs enforcement and citizenship services, are calling on Congress to fix immigration laws and be more transparent to the public. Traditional court records are public but immigration court and arrest records are generally confidential to protect the immigrant’s privacy.

“Somebody needs to flip the light switch on and make all of this stuff more visible,” said Chris Crane, president of the National Immigration and Customs Enforcement Council, which represents detention and deportation officers. “These people work for the taxpayers. Why should they be able to hide anything?”

The judges’ lobbying is the latest sign of a glaring disconnect between the immigration officers on the front lines and the lawmakers in Washington who are charting their future in a sometimes haphazard effort to fix the nation’s troubled immigration system and address the 11 million immigrants in the United States illegally.


The judges feel a sense of urgency because they fear that new immigration legislation — if it passes — could flood the courts with new cases. Their request for independence won little support from the Senate, which passed an immigration bill last month that ignored their request, but now the judges are targeting the House.

“It’s just been impossible to get the attention that we need, and yet, it is so counterintuitive because we are such an essential part of the process,” said immigration Judge Dana Leigh Marks, president of the union, which represents more than 200 judges in 59 courts nationwide. “It’s one of the keys to why the system keeps failing.”

A Senate aide, who spoke on condition of anonymity, said senators crafting the bill feared an independent court would be too costly. The future of the Senate bill is uncertain because House leaders have said they would not take it up and instead would focus on their own legislation.

The Executive Office for Immigration Review, the Justice Department agency that runs the courts, also raised concerns about the cost of an independent immigration court. The office and the Senate aide could not say how much the separate court would cost.

“The type of civil administrative adjudications that the Executive Office for Immigration Review conducts are designed to be handled within the structure of the department and it would take significant resources to create an agency separate from an executive branch cabinet officer, which we believe to be unnecessary at this time,” Kathryn Mattingly, a spokeswoman for the office, said in an e-mail.


Though they wear black robes and preside over courtrooms, the judges are lawyers named by the attorney general, the nation’s top prosecutor and the head of the Department of Justice. It took over the courts from the Department of Labor in 1940, amid national security concerns during World War II.

Immigration judges have slowly gained prestige over the years. In the earliest days they were merely hearing officers, but later they were required to be lawyers. In the 1970s, they were referred to as judges, a title that is now part of the law. In 1983, the Department of Justice created the Executive Office for Immigration Review to run the courts, giving the judges a measure of autonomy.

But the judges’ union told Congress that the court’s ties to the Department of Justice have damaged its credibility. In documents to Congress, the union recited a litany of conflicts, including the illegal recruiting of judges during the previous administration based on their political affiliations and the failure of the Justice Department to allow judges to hold people in contempt. The union said some judges have even faced discipline for issuing unfavorable decisions.

As of June, the courts had more than 300,000 cases pending, which the judges called a record high, including more than 8,000 in Boston, according to the Transactional Records Access Clearinghouse at Syracuse University.


At the same time, immigration judges say they suffer burnout, handling about 1,500 cases each, compared with 440 for federal judges, in life-or-death matters, including immigrants facing deportation to countries where their lives might be in danger.

Marks, an immigration judge in San Francisco, said the Congressional Budget Office should determine the cost of an independent court before lawmakers dismiss the proposal.

In its proposal, the judges’ union urged Congress to use its power under Article 1 of the Constitution to create an independent court of judges named by the president to a fixed term and confirmed by the Senate. Those judges would not have lifetime tenure or the salary protections that regular federal judges have.

The judges modeled their proposal after the US Tax Court, created in 1969 amid similar concerns about conflicts of interest under the Department of Treasury. Though tax court judges’ decisions and records are generally public, professors said immigration court records would be open to the public only if Congress, or the judges, made it so.

Marks said it is likely the judges would follow the tradition of regular courts, limiting access only to cases that would endanger someone’s safety.

“We support the same amount of transparency that other courts receive,” she said.

The American Immigration Lawyers Association has also backed the creation of an independent court.


“If we’re going to put people’s futures in their hands then we need them to be a truly independent decision maker and not an arm of carrying out the policies of the Justice Department,” said Crystal Williams, executive director for the Immigration Lawyers Association.

Others doubted the House and Senate would change the immigration court system now, since they cannot even agree on the broader issue of immigration overhaul.

“I think it’s very unlikely,” said Kent Barnett, assistant professor at the University of Georgia School of Law. “I don’t know that we’re going to get something that would be a relatively major administrative change through this kind of gridlock in Congress.”

Maria Sacchetti can be reached at Follow her on Twitter @mariasacchetti