Dana Leigh Marks has been an immigration judge in San Francisco since 1987, and is president emerita of the National Association of Immigration Judges. In the Washington Post,
Judge Marks writes about what it’s going to take to fix the overwhelmed immigration legal system:
The volume of work can be overwhelming. Some of our judges carry caseloads of 5,000 cases or more, usually with limited support staff. Because we work for the Justice Department, we are directed how to arrange our dockets and micromanaged about how much time we spend on cases. Beginning in October of last year, judges were ordered to complete 700 cases each year or risk a less-than-satisfactory performance evaluation, which can cost a judge his or her job. This is not how a court should be run. Attorney General William P. Barr told Congress this week that he is hoping to boost the number of judges in our courtrooms from around 425 to 535 over the next few years and for a commensurate boost in lawyers and clerks. We desperately need the help.
Find out more about what it’s going to take to reform the immigration legal process at the Washington Post.
A former acting head of the Immigration and Customs Enforcement agency says President Trump’s call to eliminate immigration judges is the “single dumbest idea I’ve ever heard.” Former ICE director John Sandweg tells CNN
it would be wrong to get rid of immigration judges because the Constitution guarantees due process. The president wants to take immigration judges away in an effort to speed up the immigration process.
Immigration court isn’t like other courts in our country. They’ve long been criticized for the lack of due process, including the fact that defendants, even children, can’t get court-appointed lawyers. Perhaps the biggest difference is that immigration judges are actually employees of the Justice Department, not the judicial branch. And the Attorney General can overrule decisions made by immigration judges. David Hausman
of the American Civil Liberties Union’s
Immigrants’ Rights Project writes about how Attorney General Jeff Sessions is using immigration court to deport more people more quickly and waging war on due process.
Plaintiffs in an ongoing lawsuit challenging the federal government’s targeted efforts to deter and obstruct asylum seekers seeking protection in the United States have filed a motion for preliminary injunction demanding timely bond hearings that comport with due process.
The motion was filed in Padilla v. ICE
in federal district court in Seattle, Washington by plaintiffs on behalf of a proposed nationwide class of asylum seekers who are detained after entering the United States. Northwest Immigrant Rights Project and the American Immigration Council represent the plaintiffs and proposed class members.
Plaintiffs are asking the court to order the government to provide qualifying individuals with bona fide asylum claims a bond hearing before an immigration judge within seven days of their request. Currently, there is no specified timeline and some asylum seekers languish for weeks or months before appearing in front of an immigration judge.
In addition, plaintiffs seek an order requiring basic due process protections in the bond hearing, including that immigration judges record the hearings and make individualized findings if they deny release. Despite the fact that immigration courts record all other types of immigration hearings, they do not record bond hearings. Moreover, when an immigration judge denies release, she or he simply marks an “X” on a form and does not state the basis for the decision, leaving asylum seekers with no way to assess the basis for appeal. And, unlike other custody hearings involving civil detention, the immigration court does not require the government to justify continued detention, but instead places the burden on the detained asylum seeker to demonstrate that she or he should be released.
“The Supreme Court has made clear that civil detention cannot be used as a punitive measure,” said Matt Adams, legal director for the Northwest Immigrant Rights Project. “Yet, the manner in which the federal government conducts these bond hearings demonstrates that they are being weaponized, imposing prolonged detention and suffering on asylum seekers in a concerted effort to block their asylum applications.”
“Locking people up for weeks or months after they have proven that they have bona fide asylum claim and then denying them a fair and transparent release process is contrary to fundamental pillars of the American judicial system,” said Trina Realmuto, directing attorney at the American Immigration Council. “We are asking the court to end these injustices and guarantee a fair process.”
The motion for preliminary injunctive relief can be read here
, as well as the amended complaint, the motion for class certification, and the government’s motion to dismiss.
The Justice Department is imposing quotas on how quickly immigration judges can close cases in an effort to speed up the process, raising serious questions about the independence of the judicial branch of law. The ABA Journal, The Washington Post
and the Wall Street Journal
report that the Justice Department is taking the action to help relieve a backlog of immigration cases. According to The Washington Post:
The judges will be expected to clear at least 700 cases a year to receive a “satisfactory” performance rating, a standard that their union called an “unprecedented” step that risks undermining judicial independence and opens the courts to potential challenges.
The new measures will take effect October 1, at the start of the new fiscal year. The quotas were announced by the Executive Office of Immigration Review.
In remarks made at the US-Mexico border on April 11, Attorney General Jeff Session announced the Justice Department’s renewed commitment to criminal immigration enforcement. There’s actually one area where Sessions and immigration advocates agree: more immigration judges are needed to handle a nearly 600,000 case backlog. More details are in this report from Politico. The text of Sessions’ complete remarks are available here from the Department of Justice website.