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The head of the union that represents federal immigration judges accused the Department of Justice of prioritizing efficiency over due process Friday, and renewed calls for the creation of an independent immigration court system.
Speaking at the National Press Club in Washington, Judge Ashley Tabaddor, president of the National Association for Immigration Judges, criticized a number of recent changes that have been made to the immigration court system under Attorney General Jeff Sessions, including the introduction of case completion quotas. She said that imposing those and other performance measures are “not only insulting, but in direct contradiction to what it means to be a judge.”
As of Oct. 1, all immigration judges will be required to complete 700 cases per year to receive a “satisfactory” performance review. Such measures, which tie an immigration judge’s employment to their ability to quickly complete complicated cases, Tabaddor argued, “place quantity over quality, and threaten due process for all.”
A spokesman for the Justice Department called the changes “common-sense reforms” to fix long-standing problems with the courts.
Federal Immigration judges are generally barred from speaking publicly about issues that impact their courts, but Tabaddor, in her capacity as NAIJ president, has repeatedly raised concerns about Sessions’s direction of the immigration court system. Unlike the constitutionally independent criminal and civil court systems, immigration courts are an arm of the Justice Department. NAIJ and others, including the Federal Bar Association, have long advocated for immigration courts to be removed from the DOJ. But Tabaddor said recent actions by Sessions and his aides have “elevated existing problems to a new height where frankly it’s indefensible on all levels.”
She cited the recent removal of nearly 90 cases from a Philadelphia judge’s docket, which prompted a formal grievance by the union as an example of the department’s efforts to impede judicial independence.
According to the grievance, the actions against Judge Steven Morley stemmed from his handling of the case of Reynaldo Castro-Tum, who came to the U.S. from Guatemala as an unaccompanied minor. After Castro-Tum failed to appear for his first two scheduled hearings, Morley found that the Office of Refugee Resettlement may not have provided an accurate or reliable address for the young man, an issue the judge had observed in several other juvenile cases, raising questions about whether Castro-Tum been properly notified of his court hearing. Morley chose to use his authority to administratively close the case — essentially putting it on hold without making a decision — to allow the notification question to be investigated.
In the meantime, Sessions referred the Castro-Tum case to himself and in May issued a decision finding that immigration judges do not have the authority to administratively close cases, effectively terminating a practice that judges have long relied on to manage their calendars and prioritize cases. Following Sessions’s decision, Morley received an email from the director of the DOJ’s Executive Office for Immigration Review instructing him to quickly schedule a hearing in the Castro-Tum case, at which an attorney requested a continuance in order to try to track down Castro-Tum. Morley assented to the continuance and was shortly notified that the case had been reassigned to another judge, who had quickly ordered Castro-Tum deported. Morley then learned that he’d also been removed from 85 other cases involving similar circumstances.
Several retired immigration judges and former members of the Board of Immigration Appeals signed a letter criticizing the move as “the latest attack on judicial independence.” The Executive Office for Immigration Review, they concluded, had removed the Castro-Tum case from “the docket of a capable judge in order to ensure an outcome that would please its higher-ups.”
While the Trump administration has drawn plenty of attention for its controversial immigration enforcement policies — from separating families at the border to the indiscriminate arrests and large-scale detention of undocumented immigrants within the country — Sessions has been quietly making significant changes to the immigration courts by taking it upon himself to review and make precedent-setting decisions in a number of cases like that of Castro-Tum.
In addition to restricting judges’ authority to put cases on hold through administrative closures, he’s also revoked a requirement that all asylum cases be heard by judges, and generally disqualified victims of gang or domestic violence from seeking asylum in the U.S.
Earlier this week, he issued yet another decision overturning an earlier ruling by the Board of Immigration Appeals — one that had allowed the court to terminate deportation proceedings for a family member of a U.S. citizen resident to allow her to pursue a lawful claim for a family-based visa.
Tabaddor said the latest decision is indicative of one of the “fundamental flaws” of the current immigration court system. While Sessions had requested briefs on the previous cases he referred to himself for review, Tabaddor said there was no advance indication that he was involving himself in this case. “Nobody even knew,” she said.
“When you provide a prosecutor super veto power, that’s a design flaw,” she said.
Sessions has defended such moves part of an effort to increase efficiency within the immigration courts, which face a mounting backlog of more than 740,000 cases.
In a statement to Yahoo News Friday, a DOJ spokesperson accused the NAIJ of “consistently attempt[ing] to block the Justice Department’s common-sense reforms to fix decades of immigration court mismanagement,” and charged that “The immigration judge union has also contributed to the massive backlog inherited by this administration.”
Tabaddor maintained that “the judges are not responsible for the backlog. It’s the bad management for years and continued misguided solutions.”
During the recent induction ceremony for 44 new immigration judges — the largest-ever class of immigration judges in U.S. history — Sessions decried proponents of so-called open borders and painted immigration lawyers as talented scammers working to circumvent our immigration laws. Tabaddor argued that Sessions’s remarks at this event “highlighted and emphasized [his] commitment to implementing executive branch’s law enforcement policies.”
“The only durable solution is to get [the immigration] court away from the Justice Department, let it be a real court,” she said.
While a number of legal organizations have issued their support for such a move, Tabaddor acknowledged that the NAIJ is limited in the legal actions it can take to divorce itself from the DOJ, ultimately relying on the hope that members of Congress will take the action necessary to establish an independent immigration court through legislation.
“The Executive Office for Immigration Review has been clear that the proper home for the immigration court system is with the department as Congress intended,” said the DOJ spokesperson, adding that “it is possible to achieve the department’s goal of reducing the backlog by 50 percent in 2020 with collaboration — not obstruction and intentional undermining — from the immigration judge union.”
In the absence of congressional action, Tabaddor said the NAIJ is continuing to bargain with the Executive Office for Immigration Review over the quotas and urging judges not to succumb to pressures to rush to conclude cases at the expense of due process.
“Don’t cut corners,” she said.
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