NOI 46: Politics Need to Get Out of Our Immigration Courts

Our Nation of Immigrants is struggling to manage a record caseload in our immigration courts. Today we discuss how those courts are being politicized, and some solutions on how to fix it.

Jacob Tingen: Here we are again, welcome again to Nation of Immigrants. It’s always fun to be talking to you, and today about one of my favorite topics, our nation’s immigration courts. So we’re going to see the influence of politics in courts, something that we’ve talked about before, but recently NPR has been talking about this a little more and so we’ll comment on what they have to say after the intro.

Announcer: You’re listening to Nation of Immigrants.

President Obama: America is a nation of immigrants.

Announcer: A podcast about US Immigration Law, with your host, Jacob Tingen.

Jacob Tingen: Okay. So I mentioned that we’d be talking about how our immigration courts are being politicized or basically used as a political weapon, and that’s interesting because as we all know immigration is a huge political issue today and it’s only becoming bigger and bigger as time goes on under the Trump administration in particular. It’s just one of those polarized and politicized issues, what to do about the problem of immigration in the United States. I think part of that is due to the language we use. I mean, just now, I said the problem of immigration in the United States. One of the things that I’ve just been thinking about and talking about lately is why is immigration a problem in the first place? There’s a lot of evidence to indicate that it’s not really, that even illegal immigration doesn’t actually harm us and that there’s a net benefit to us from having immigrants come to our country. So maybe that’s where we need to start.

Jacob Tingen: But the headline I’m looking at today is on NPR. It says Senate Democrats accused justice department of politicizing immigration courts. Unfortunately, that’s totally true. If you are an immigration attorney today, you know that the priorities of the Trump administration are very much strongly being imposed on the administration of our nation’s immigration courts. Frankly, that is by the current design of our immigration courts. So the last time there hasn’t been a good immigration reform or any immigration reform for years, and the last time that there was a reform, a lot of power was given to the executive branch of government. We’ve talked about this a little bit, but one of the powers the executive branch of government has is through the Department of Justice, through the Attorney General, this Power of Attorney General Certification where Attorney Generals can pluck immigration cases out and make decisions on them.

Jacob Tingen: Well, that’s been happening quite a bit under the Trump administration and the interpretation of a lot of laws has changed. But in addition to that, the Department of Justice is responsible for the organization known as the EOIR, the Executive Office for Immigration Review and they’re imposing things like quotas and other kinds of administrative tactics to essentially erode the independence of immigration courts and that’s what this says that the Democrats wrote a letter to the Justice Department says the administration has waged an ongoing campaign to erode the independence of immigration courts, including changing court rules to allow more political influence over decisions and promoting partisan judges to the Board of Immigration Appeals. That that seems mostly accurate, right? But again, it’s hard to accuse politicization of something that has, of a power that’s been handed over to the administration.

Jacob Tingen: Something to remember about immigration judges is that they’re not part of an independent judiciary. They are part of the executive branch of government. I think most immigration judges have a sense that they should be impartial judges, that that’s part of the point of being a judge in any context, is that I’m an impartial decision maker. Yet, as part of the DOJ, they aren’t as independent as they would need to be to make truly impartial decisions. So this letter goes on to say that the administration’s gross mismanagement of the courts do lasting damage to public confidence in the immigration court system. I don’t know that that’s true. I don’t think the public has any sense of what’s going on in our immigration courts at all and that’s unfortunately one of the problems is that immigrants and the issue of immigration is so politicized, but then when it comes down to actually taking action, at the end of the day, immigrants don’t vote, right?

Jacob Tingen: So who’s talking for them? Who’s representing them? At the end of the day, if you’re a politician, you don’t actually have to do anything for immigrants because no, none of them, they’re not voters. So that’s frankly one of the problems. But does the public have confidence in the immigration court system in the first place? I mean, I just don’t think it’s in the public’s general awareness at all. As an immigration attorney, I can tell you that when I see these kinds of actions occur where the administration will adjust the interpretation of a given law or those kinds of things, it creates more work for me. I have to adjust strategies on cases that I have pending many times for many years. So I would say at a high level that yes, the courts are mismanaged in a way that makes it very difficult for laws to be applied evenly, for them not to be applied in a political manner. I mean, I’d say that this is generally accurate.

Jacob Tingen: So what’s interesting though is that this NPR article does include some viewpoints from both sides of this argument in that they quoted an immigration judge… Well, first of all, they proposed the solution that everybody has been proposing lately, which is the immigration court needs to be out from under the executive branch from government. It needs to be a separate independent judiciary, which makes sense if you’re going to have an impartial set of judges, they should be an independent judiciary. I don’t see anyone disagreeing with that really. I mean, in principle, if I’ve got political priorities over here and government attorneys who are representing the interests of the government, whatever those interests may be at the time, and then I’ve got attorneys over here representing the immigrants and their interests, the decision maker should not be getting paid by the government, right? Right? Or at least not be incentivized by quotas or other administrative aspects imposed by the government. Like their paycheck shouldn’t be on the hook for meeting expectations of the government, right?

Jacob Tingen: So when your judges and your government attorneys are paid by the same department, it makes it hard for those judges to be truly impartial and to truly administer justice. But they’ve got a quote from a former immigration judge who works for the Center for Immigration Studies, which is widely known as kind of a right wing think tank on immigration says the attorney general and his subordinates are actively working to remedy this problem by providing the needed resources to immigration courts. This is from a former immigration judge and he says restructuring the immigration courts will not address the core problems that are facing those courts. I agree that the courts need more resources, but again, as part of this politicization, we do see that there needs to be more judges but there also needs to be more fairness, right? So more resources can only help some of the issues here.

Jacob Tingen: A restructuring has been discussed for years. The Federal Bar Association has proposed that the immigration courts be independent, that they not be under the executive branch of government and that Congress should work to establish an independent judiciary for immigration judges, right? The article goes on to say that at a time when case loads are surging, some immigration judges are quitting, citing frustration and exhaustion, which I’m seeing some of my favorite judges are no longer judges, which is unfortunate and a few more are retiring. So and when I talk about favorite judges, judges that I see who administer justice, who do it respectfully to clients, I don’t win all of my cases with them, right? But at least I see that they gave my client a fair shake and there’s real value in that. There’s a trust that develops.

Jacob Tingen: So there’s a judge retiring out of the Philadelphia court that says, “I would want future administrations and the Congress to think of immigration judges as judges, literally, and give them the autonomy and the independence and the confidence to make decisions without political interference or overreach.” So this is somebody who’s retiring and he feels political interference in his job, right? I mean, or else he wouldn’t say this, says, “The only way to do that is to create an independent court where the judge makes a decision and the judge isn’t afraid of how many cases he has to complete for the year or whether some political actor is going to be looking over his shoulder and say I don’t agree with that decision. We’re going to find a way to put pressure on you.” Unfortunately, that is the state of immigration courts currently is that there is a lot of pressure on immigration judges to make decisions in certain ways.

Jacob Tingen: One of the things I recently brought up in… I teach an immigrant rights class at the University of Richmond and one of the conversation topics we had was about immigration court quotas, the number of cases that judges are expected to close out in a year. We mentioned how in the Atlanta Immigration Court, for example, has one of the lowest asylum approval rates in the entire nation and the per judge case close out rates, case resolution rate for the year I think is something like 1,300, and lowest asylum approval rate in the country. Whereas the New York Immigration Court has one of the highest asylum approval rates in the country. I think the average judge case resolution rate is something like 350 to 400 cases a year.

Jacob Tingen: So when the Justice Department through the Trump administration comes in and says, “We’d like all judges everywhere to resolve 750 cases per year.” I think that we can see the difference between those two scenarios and understand what that really means. Does it really mean, oh, I really want 750 cases closed out per year, or does it mean I want more denials. To me, that seems pretty transparent. I’m not the first one to look at that difference and draw that conclusion. Others have done it as well. So this is just one of those issues where we look at immigration courts, we want them to be fair, we want them to be free from political interference, and the only way to do that is for it to be an independent judiciary and that shouldn’t be controversial. It should not be controversial in a democracy to say that when we’re in court, the referee shouldn’t take sides, right? That should be, and we shouldn’t implement all of the administrative tactics possible to make sure that the ref isn’t taking sides.

Jacob Tingen: That seems to make sense to me and I think it will make sense, well, I hope it made sense to you as you listen to this video here and I hope that you get value from listening to Nation of Immigrants here with me. For those who want to support the podcast, don’t forget to subscribe on iTunes, YouTube, Facebook, Twitter. Come visit me at jacobtingen.com and donate and support the podcast. We look forward to seeing you around. Thank you for tuning in today.

Announcer: Thank you for listening to Nation of Immigrants.

President Obama: America is a nation of immigrants.

Announcer: Subscribe to the podcast on iTunes. Watch the live stream on YouTube and Facebook, or visit jacobtingen.com to learn more.