The Biden administration deserves the criticism it is receiving for welcoming to the Justice Department 17 new immigration judges who have virtually no professional experience other than as prosecutors, immigration officials, or military personnel. Thirteen of those new judges were selected by Biden administration officials; the four others were holdovers from the Trump regime. None appear to provide the sort of professional diversity — as defense attorneys or immigration advocates, for example — that is desperately needed if the nation’s immigration courts are going to begin to be something more than cruel deportation processing centers.
The system by which those courts operate was broken long before Donald Trump became president but, as with so many other things, he made a bad situation measurably worse. When Trump left office, the backlog of immigration cases had more than doubled from the end of the Obama administration. That backlog reached 1.3 million cases in January, a figure explained in part by Trump’s immigration officials reopening hundreds of thousands of low-level immigration cases while providing immigration courts with fewer resources to handle the crush. Trump officials even pressed to cut immigration court interpreters, for example.
Those courts with overpacked dockets, run by the Justice Department and thus subject to executive branch control, already are stacked against asylum seekers, migrants, and other people who have come unannounced to our borders seeking a better life. That’s not just because immigration law is stacked against the undocumented but also because so many immigration judges, from so many successive presidential administrations, already are predisposed to siding with the government. This White House, this Justice Department should be doing everything possible to make the immigration bench more diverse in every way.
Almost all of the 17 new immigration judges come with backgrounds as federal, state, or local prosecutors or have strong ties to U.S. Immigration and Customs Enforcement or the Department of Homeland Security. One of the new judges, David Robertson, has served as both a military prosecutor and defense counsel. Another, Tamaira Rivera, spent two years as an “immigration practitioner” with Advantage Immigration PA, a Florida company that appears to have no working website. That’s it for the relevant professional diversity. No experts on asylum law. No earnest practitioners who might have additional reasons to empathize with immigration defendants.
Indeed, to read the Justice Department’s press release last week announcing the new judges is to read a litany of law enforcement job titles and military credentials, all of which suggest that these new judges are both qualified for their new jobs and wholly unlikely to bring about the sort of internal reform that’s needed. So many company men and women. So many who have spent decades fighting to deport immigrants. So few who have spent their careers instead questioning the scope of governmental authority, or challenging the deplorable conditions of confinement that thousands of immigration detainees, including children, endure.
The makeup of the list is particularly disappointing because one of the easiest ways for the Biden administration to bring about immigration reform is to reform immigration courts. Not as easy as rolling back Trump-era immigration policies, perhaps, but certainly easier than getting any sort of meaningful immigration reform passed through the Senate with Republicans already in opposition to whatever progressive approach Biden might take. Fixing immigration courts is an in-house solution that doesn’t need congressional approval. It wouldn’t guarantee systemic reform, but it might make more immigration cases more fair — a noble goal, too.
Camile Mackler, an immigration advocate, last month offered a handful of practical policy suggestions the Biden team could implement to help change immigration courts. First, while some of the nation’s busiest immigration courts are still closed because of the coronavirus, federal prosecutors could exercise what little discretion they have to drop cases that crowd their dockets as no longer consistent with administrative priorities. The Justice Department also could work more aggressively to connect immigration defendants with lawyers and other specialists who can shepherd them through the chaotic and tortuous system.
There are other avenues of reform, too. During the Trump era a federal labor board ruled against the union of immigration judges, declaring — against precedent — that they are managers and thus not eligible to be represented by a union. The Biden administration could move to unwind that decision. So far, it hasn’t. Likewise, the Biden administration last month said it would seek a 21 percent increase to the budget for immigration courts, good enough to hire 100 new immigration judges to begin to ease the courts’ massive backlog. To give spirit to the letter of this budget, those judges simply have to be more diverse than this first crop of 17.
The ultimate solution to the eternal problem of immigration courts, of course, is to have Congress pass and a president sign sweeping immigration legislation, part of which grants immigration judges authority that is independent from the executive branch. The case for giving immigration judges more protection from the whims of a White House and a Justice Department is stronger than it first appears. Immigration judges could be granted limited terms, for example, rather than the lifetime tenure federal judges get under Article III of the Constitution. But first things first. That legislation is nowhere in sight. And so the Biden administration's next batch of immigration judges must be more professionally diverse than this first crop is.
The views expressed are the author’s own and not necessarily those of the Brennan Center.