By Dr. Ilan Fuchs
Faculty Member, Legal Studies, American Military University
There are many critical activities on the agenda of the incoming administration of President- elect Joe Biden. The transition teams that were announced several weeks ago have been meeting with leaders of various federal agencies outlining tasks for the new administration starting January 20, 2021. One of the bigger issues that was mentioned so many times during the election campaign was the anticipated immigration reform.
Biden talked a lot about immigration reform, but do we fully know what his plans are? Not really. The only clear promise mentioned was reinstating of DACA (Deferred Action for Childhood Arrivals), but beyond that details were not clear: “As president, Biden will finish the work of building a fair and humane immigration system – restoring the progress Trump has cruelly undone and taking it further. He will secure our border, while ensuring the dignity of migrants and upholding their legal right to seek asylum. He will enforce our laws without targeting communities, violating due process, or tearing apart families. He will ensure our values are squarely at the center of our immigration and enforcement policies.”
We Know President-elect Biden Supports Doing Good when it Comes to Immigration
So basically, we know President-elect Biden supports doing good when it comes to immigration. Anything tangible we can talk about? Well, here are some thoughts that the new administration might find useful.
Last month a committee organized by the New York City Bar Association published a report on the condition of immigration courts. The findings are alarming.
For those who are not lawyers, here is a basic explanation with a side order of alphabet soup on the immigration system. First, we have the Executive Office for Immigration Review (EOIR), which is part of the U.S. Department of Justice (DOJ). The EOIR is a federal agency in charge of immigration issues like removal proceedings or releases on bond, among other things. In other words, this agency makes immigration decisions an administrative action not a judicial one.
The EOIR includes the immigration courts that can be found all over the country. The decisions made by the immigration judges can be appealed to another institution which is part of the EOIR, the Board of Immigration Appeals (BIA). Why is all this important? Because as administrative officials, the immigration judges can be influenced by the administrative branch and their judicial independence is limited.
This was a major theme in the report issued by the NYC Bar Association, a long and detailed document spanning 25 pages. Let’s look at some of the highlights.
The Report Pointed to the Hiring of Immigration Judges that Seemed Motivated by a Political Agenda
First, the report pointed to the hiring of immigration judges that seemed to be motivated by a political agenda. These judges proved to have a high denial rate of applications, averaging 92% in comparison to the national average of 63% denial rate for all other judges. But the troubling issue was with the metrics the DOJ created. In order for a judge to show satisfactory results, he or she must adjudicate 700 cases a year, which averages three a day! Beyond that, a judge is expected to maintain at least three of the following six criteria:
- Issue decisions within three days of completing a merits hearing in 85% of non-status detained removal decisions
- Issue decisions within 10 days of completing a merits hearing in 85% of non-status non-detained removal decisions (unless completion is prohibited by statute, such as cancellation caps)
- Decide motions within 20 days of receipt in 85% of their cases
- Make bond decisions on the day of the hearing in 90% of cases
- Complete individual hearings on the initial scheduled hearing date in 95% of the cases (unless the Department of Homeland Security does not produce a detained respondent), and
- Issue decisions in 100% of cases on the day of the initial hearing in credible fear and reasonable fear reviews (unless DHS does not produce a detained respondent)
When Judges Are Expected to Maintain This Hectic Pace It Comes at the Expense of Justice
I am not against efficiency, but this is too much. When judges are expected to maintain this hectic pace it comes at the expense of justice. It does not matter where you fall on the political spectrum about immigration, the process needs to be fair. So when a judge needs to keep up with such a fast pace something has to give. In this case it will be Lady Justice.
There are many other issues the report deals with, but it is impossible to discuss all of them thoroughly in a 1,000-word article, so let me focus on one that stands out for me: due process issues. The report pointed out that legal tools the court has to allow parties more time to prepare their cases were minimized.
I am referring to tools like continuance, status docket (a procedure that requires parties to file an update by a specific date), administrative closure (which puts a case on an inactive docket until one party asks for a reopening), and termination without prejudice. By issuing policy memoranda and other methods, the DOJ forces judges to make rulings even if they do not have all the facts. The New York City Bar Association report eloquently described this problem:
“Given that immigration applications often involve a complex and lengthy process, rushed decisions inevitably equate to more removal orders before people have a reasonable opportunity to find counsel or identify relief. This is especially concerning given that more time is often the best solution for many of the other due process challenges inherent in immigration court — language barriers, no right to free counsel, unaccompanied children, international evidence and witnesses, and vulnerable respondents such as asylum seekers who often need to address symptoms of trauma before they can meaningfully engage with the legal system.”
This is a political problem so the solution will be political. Both sides of the political aisle need to find a compromise and leave administrative judges out of the business of making policy.
Administrative law is a touchy subject. It is where the state with its power makes decisions we as a society would usually expect the judiciary to deal with. But for the sake of expediency we give administrative agencies roles that are quasi-judicial. Immigration judges need to be given manageable tasks and time to perform them. Politicians and the Bided administration need to do their job and resolve this vital issue.