Those on the front lines of deportation battles — the nation’s 350 immigration judges — are increasingly coming under the highly politicized thumb of their boss, Attorney General Jeff Sessions.
A slew of new directives from Sessions in the past year — including a quota system for closing cases that kicks in Oct. 1, new rules that limit the types of cases under which asylum can be granted, and new limits on the ability of judges to halt deportations issued just this week — have spurred calls to finally make this embattled corps of judges truly independent.
Unlike other federal judges, immigration judges are now currently entirely under the Justice Department, which has the sole power to hire and fire them. That hasn’t been a matter of much controversy in the past.
In fact, it’s the burn-out rate for judges who face enormous case backlogs (in 2017, it was about 700,000 cases) and have to rule daily on heart-wrenching cases that has been more of a problem than assaults on their independence.
But the attorney general — a frequent target of his own boss, Donald Trump — seems to have found one way to prove his manhood and his loyalty to the Trump agenda. He has found it in his heavy-handed treatment of what is now a growing corps of immigration judges.
Congress this year approved an additional 150 new immigration judges and Sessions recently spoke to the latest incoming class of 44, telling them, “Good lawyers, using all their talents and skill, work every day — like water seeping through an earthen dam — to get around the plain words of the [Immigration and National Act] to advance their clients’ interests. Theirs is not the duty to uphold the integrity of the act. That is our most serious duty.”
He also told them that the American people had spoken “in our elections.”
In other words, the attorney general of the United States just told a group of judges in training that they have their marching orders, and fairness be damned. A banana republic dictator couldn’t have done it better.
Among the more shocking directives issued by Sessions was one limiting when asylum could be granted in cases involving fear of domestic or gang violence.
Or as Ben Johnson, executive director of the American Immigration Lawyers Association, put it, “You don’t make categorical decisions in the American judicial system.”
And by “marginalizing judges in their own courtrooms” by chipping away at their independence, “Jeff Sessions gets to be the Supreme Court of immigration,” Johnson added.
The asylum decision, and the new system of “metrics” that requires an immigration judge to complete 700 cases a year to earn a “satisfactory” performance rating (and yes, that would be about three cases for every working day of the year) were, as it turns out, only the beginning. In this week’s directive on deportation cases, Sessions said judges “have no inherent authority to terminate removal proceedings even though a particular case may pose sympathetic circumstances.”
The alternative? Well, for some — but only the lucky few — there might be an appeal to federal court. But grounds for appeal are limited.
The real solution is to take immigration courts out of the Justice Department — and make it either a real Article 1 independent constitutional court or at the very least a separate administrative court branch. If Democrats prevail in November’s congressional elections, freeing the immigration courts from their own form of bondage ought to be on their to-do list.