Is Government Zeal for Deportation Putting Judicial Independence at Risk?

The government signals that deportation is more important than due process

August 14, 2018

On Thursday, a D.C. federal district judge threatened to hold Attorney General Jeff Sessions and Homeland Security Secretary Kirstjen Nielsen in contempt after learning that a mother and daughter who were challenging the denial of their asylum claims had been put on a plane to El Salvador at the same time their case was being heard. 

“This is pretty outrageous,” U.S. District Court Judge Emmet Sullivan said. “That someone seeking justice in U.S. court is spirited away while her attorneys are arguing for justice for her?” He ordered the government to “turn that plane around.” A Homeland Security official said Thursday evening that the two plaintiffs were back in the U.S.

Sullivan’s reaction — and his order — is a powerful example of the importance of judicial independence and how it protects against government abuse. 

But when it comes to immigration, many of those facing deportation don’t have such protections. Instead of appearing before independent federal judges, many immigrants facing deportation appear in immigration court, which is part of the Justice Department and whose judges have far fewer protections than federal judges against political pressure and retaliation. 

Moreover, a series of recent incidents and policy changes suggests that immigration judges’ judicial independence is increasingly under threat, with worrying implications for due process and the fair administration of our immigration laws.

For example, late last month the Justice Department replaced an immigration judge who had paused a case so the immigrant involved could be located and a hearing could be held. The new immigration judge swiftly issued a deportation order.

The move provoked the ire of 15 former immigration judges and members of the Board of Immigration Appeals, who signed a letter protesting the move. “[S]uch interference with judicial independence is unacceptable,” the letter read. “As a democracy, we expect our judges to reach results based on what is just, even where such results are not aligned with the desired outcomes of politicians.” 

And this is not an isolated incident. On Wednesday, the immigration judges’ union, the National Association of Immigration Judges, filed a formal grievance over the case reassignment and noted there were more than 80 other cases in which the same immigration judge, Steven Morley, had a matter reassigned when he had not issued a deportation order. When asked about the repeated reassignments, a spokesman replied, “There is reason to believe that the immigration judge in question committed potential violations of processes and practices governed by federal law and EOIR policy.”

While the facts may be in dispute, these incidents fuel criticisms that under Sessions, the Justice Department may be placing pressure on immigration judges to prioritize deportation over due process.

The hiring of immigration judges — a power that also falls within the Justice Department’s purview — is also vulnerable to political interference. In May, House Democrats requested that the Inspector General investigate hiring practices after whistleblowers alleged that some who had received job offers to serve as immigration judges or members of the Board of Immigration Appeals “had their offers suspended or withdrawn…based on their perceived political or ideological views.” These allegations echo a Bush-era scandal, where a 2008 Inspector General report concluded that staffers in the office of Attorney General Alberto Gonzales “improperly took political and ideological affiliations into account” in hiring immigration judges.  

And as political considerations may be moving front and center, Sessions is also weakening immigration judges’ ability to hold fair proceedings. (Unlike criminal courts, there is no constitutional right to counsel in immigration court.) In the past six months, Sessions voided precedent that guaranteed asylum seekers the chance to testify before an immigration judge, curtailed immigration judges’ ability to postpone cases while immigrants apply for relief from removal, and announced immigration judges would be subjected to strict evaluative case completion quotas and time benchmarks — a policy that in practice may incentivize immigration judges to short-change due process.

To be sure, immigration cases are bureaucratic and lengthy, and can leave immigrants in legal limbo for years. But these recent changes exacerbate the injustice of an already overburdened system that struggles to provide fair hearings, and the changes also buck expert recommendations. In 2017, a DOJ-commissioned study of immigration courts by Booz Allen Hamilton and the National Center for State Courts instead recommended pausing cases not ready for adjudication and “a judicial performance review model that emphasizes process over outcomes and places high priority on judicial integrity and independence.”

Everyone has a right to their day in court. But the system only works if judges on those courts can fairly apply the law. The recent assaults on immigration judges’ independence puts this basic value at risk. 

(Image: Tasos Katopodis/Getty Images)