The Importance of the Need for an Independent Immigration Court in Support of Due Process and the Rule of Law and its Volatile Impact in the Courtroom

In recent years, the significant structural conflict of interest of our immigration court has become readily apparent. The U.S. Attorney General, a member of the administrative branch of our federal government, is responsible for overseeing both the judges who decide immigration matters, the Department of Homeland Security/ICE trial attorneys who are opposing counsel, and the Department of Justice attorneys responsible for litigating those very cases at the circuit court level. Our immigration courts should certainly be independent judicial courts, unburdened by the potential for political mischief in order to administer all immigration cases in a fair manner.

The Executive Office for Immigration Review (EOIR), which manages the Immigration Court and the Board of Immigration Appeals (BIA), is currently housed under the Department of Justice. While trial-level immigration prosecutors are housed under the U.S. Department of Homeland Security (DHS) within Immigration and Customs Enforcement (ICE), the Attorney General supervises the Office of Immigration Litigation (OIL) which defends immigration cases on behalf of the government in the circuit courts of appeal. This inherent conflict of interest is made worse by the fact that immigration judges are considered merely government attorneys, a classification that fails to recognize the significance of their judicial duties and puts them at the whim of the Attorney General. The judges do not enjoy many of the protections of Article III federal judges, such as life-tenure. In fact, immigration judges have no fixed term of office and can be fired by the Attorney General or be relocated to another court at any time.ABA Commission on Immigration, Reforming the Immigration System, Proposals to Promote the Independence, Fairness, Efficiency, and Professionalism in the Adjudication of Removal Cases (2010)

As immigration lawyers we have seen how the office of the Attorney General is aggressively working to make these courts instruments of the administration’s immigration agenda. As part of his powers the Attorney General may overrule immigration Court and Board of Immigration Appeals decisions on his own initiative.

In the past, Attorneys General have used this “self-certification” authority sparingly: under the Obama Administration, for example, this power was only used four times throughout both terms. By contrast, under this administration, the former Attorney General Jeff Sessions self-certified cases six times in less than two years and issued five decisions. In the Matter of A-B- 27 I&N Dec. 316 (A.G. 2018), Sessions unilaterally undermined longstanding asylum protections for victims of domestic violence and gang violence. He claimed the authority to overrule decisions not only of the Board of Immigration Appeals, but also of federal courts of appeals. In the Matter of Castro-Tum, 27 I&N Dec. 271 (A.G. 2018), Sessions suspended decades of immigration court practice by holding that immigration judges lack the power to administratively close cases. Administrative closure allowed immigration judges to take cases off their dockets, when the foreign national, for instance, had a pending application or petition with the United States Citizenship and Immigration Services pending adjudication. The government had the availability to request the judge to put the matter back on calendar when deemed necessary. It was a tool that saved much needed resources for the courts and didn’t prejudice any party. Now, as a result of that ill-advised mandate, the courts are again inundated with cases.

Even though many new judges have been hired, their ability to hear cases is limited. On October 1, 2018, then Attorney General Sessions subjected all immigration judges to individual case completion quotas and time-based deadlines as a basis for their performance reviews. Under the requirements judges must complete 700 removal cases in the next year or face discipline which may result in termination of employment.2 Judges are pressured to rush decisions to protect their own jobs, at the same time compromising the foreign national’s right to due process and a fair hearing. Many foreign nationals have their individual hearing (trial) without legal representation, as judges refuse to grant continuances trying to rush a decision.

The administration has also repeatedly attacked immigration lawyers undermining the foreign national’s right to counsel. The administration has referred to them as “dirty immigration lawyers”3 accusing attorneys of engaging in fraud.4 Federal law guarantees noncitizens facing removal the right to counsel but not at the government’s expense.5

The Department of Justice also attempted to end the Legal Orientation Program (LOP), a program that provides a basic orientation for immigrants in deportation proceedings. After universal condemnation, DOJ rescinded its proposed termination of LOP. However, some of the newly hired judges in the San Francisco area have adopted the administration’s position by not allowing pro bono lawyers to assist the unrepresented at their hearings. Prior to that, Judges welcomed the Attorney of the Day Program, offered by the Bar Association of San Francisco, which saved them time and resources by allowing a lawyer to speak with unrepresented individuals before their hearings about their obligations with the Court, deadlines and possible relief. Of great concern is the fact that individuals with valid claims, who do not have resources, either because they are newcomers or are unemployed and do not have the ability to hire a lawyer, end up with removal orders.

As one can readily see, the immigration court system as it is can be easily manipulated. Currently our immigration courts are being transformed based on political views of the controlling party, rather than being a fair and neutral arbiter. The creation of an independent immigration court system outside the control of DOJ would protect and advance America’s core values of fairness and equality by safeguarding the independence and impartiality of the immigration court, in the form of an independent Article I court.

Erika Portillo is an immigration attorney and partner at Guichard, Teng, Portillo & Garrett, with offices in Walnut Creek and San Francisco and is a frequent contributor to the Contra Costa Lawyer. She previously practiced criminal law as a prosecutor for the State of Morelos in Mexico. Erika is admitted to practice in the State of California, the U.S. District Court Northern District and the U.S. Court of Appeals for the Ninth Circuit.