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Biden’s New Immigration Judges Are More of the Same

The president must do better if he’s serious about reforming immigration courts, writes Brennan Center Fellow Andrew Cohen.

May 10, 2021
Jantanee Phoolmas/Getty

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.