The Immigration Judiciary’s Need for Independence: Breaking Free from the Shackles of the Attorney General and the Powers of the Executive Branch

Daniel Buteyn is an online editor for Volume 47 of the Mitchell Hamline Law Review and a student at Mitchell Hamline. Daniel’s article is a portion of his full-length paper available in Issue 4 of Volume 46.

Introduction

President Donald Trump’s strict immigration policies beg the need to evaluate the country’s immigration judiciary proceedings. How exactly do immigration courts function compared to civil or criminal court procedures? In short, the immigration courts are controlled by the Executive Branch of the United States government.

In 1940, through the Board of Immigration Appeals (Board), sole responsibility was conferred to the attorney general regarding immigration matters.1 Over time, agencies changed. Today, the attorney general controls the Executive Office of Immigration Review—an agency of the Department of Justice (DOJ) that adjudicates removal proceedings for immigrants and their families.2

Regulations issued by the DOJ give power to the attorney general to review Board cases that are referred by the Board or the Secretary of Homeland Security. Additionally, the attorney general can direct the Board to refer cases to himself. The statute reads, in part:

(1)  The Board shall refer to the Attorney General for review of its decision all cases that:

(i) The Attorney General directs the Board to refer to him.

(ii) The Chairman or a majority of the Board believes should be referred to the Attorney General for review.

(iii) The Secretary of Homeland Security, or specific 

      officials of the Department of Homeland Security designated by the Secretary with the concurrence of  the Attorney General, refers to the Attorney General for review.

(2) In any case the Attorney General decides, the Attorney General’s decision shall be stated in writing and shall be transmitted to the Board or Secretary, as appropriate, for transmittal and service as provided in paragraph (f) of this section.3

This review mechanism has been widely criticized, for good reason. First, the attorney general is able to insert himself to review cases in which he lacks subject matter expertise compared to members of the Board.4 Second, he is able to review cases without meaningful participation of the parties and without notice to the parties.5 These criticisms invoke unfairness to the parties involved and seems, on the outset, a power that should be outside the authority of the attorney general.

The most relevant criticism, for purposes of this post, is the attorney general’s decisions based on a political bias rather than on the actual merits of the case.6 Indeed, former Attorney General Jeff Sessions took full advantage of this review process. In his law review article, former Attorney General Alberto Gonzales writes that “Attorney General referral and review is a potent tool through which the executive branch can lawfully advance its immigration policy agenda.”7 Gonzales knows first-hand that the power to review immigration cases can be an avenue to advance particular political agendas. The attorneys general under both Clinton and Obama used this review process a total of seven times over eight years; comparatively, whereas Attorney General Sessions used it four times during his tenure.8 Former attorneys general most often used the review mechanism in situations when cases were referred to by the Board.9 Sessions, instead, handpicked the cases he wanted to review and instructed the Board to refer those cases to him.10 The four cases are: Matter of E-F-H-L-,11 Matter of Castro-Tum,12 Matter of L-A-B-R-,13 and Matter of A-B-.14

This review mechanism increases the power of the executive branch. Furthermore, President Trump exercises his control of the immigration courts by attempting to union bust immigration judges that do not share his views on removal proceedings (or immigration policies in general). On Friday, August 9, 2019, the U.S. DOJ filed a petition with the Federal Labor Relations Authority to strip the rights of immigration judges to be represented by a union.15 The DOJ’s justification is that immigration judges are “management officials who formulate and advance policy.”16 Under the Federal Service Labor-Management Relations statute, a “management official” cannot be part of a union and is defined as “an individual employed by an agency in a position the duties and responsibilities of which require or authorize the individual to formulate, determine, or influence the policies of the agency. . . .”17

When Attorney General Sessions instructed the Board to refer the four cases to himself, it was just another way President Trump was abusing his control of the immigration courts. Attorney General Sessions, in no way, was thinking of the improvement of immigration policies. In tandem with President Trump, Sessions used his power as the attorney general to review immigration cases that did not need reviewing. His goals were strictly political and aimed at satisfying President Trump’s agenda. This type of interference with already adjudicated cases would be less likely to happen if immigration courts were its own, independent Article I court.

Why the need for separation?

It has come to the breaking point. The immigration court system is no longer a place where cases can be adjudicated in a way that is consistent with the Constitution.18 Immigrants are no longer receiving their procedural due process rights as laid out in the Constitution and, as a result, immigrants seeking asylum are suffering at the hands of the President. The Fifth Amendment of the United States Constitution extends due process rights to all people within the United States jurisdiction by stating that “[n]o person shall be . . . without due process of law . . . .”19 It may be obvious, but in order for asylum to be granted, one must first appear in court. But without their constitutional due process rights, asylum seekers will be turned away only to return to the suffering that forced them to leave their home countries in the first place.

  In one article Jeremey McKinney, vice-president of the American Immigration Lawyers Association, weighed in: “[i]t’s time for the Department of Justice and the immigration courts to get a divorce.”20 In July 2019, the immigration lawyers joined with the American Bar Association, the Federal Bar Association, and the National Association of Immigration Judges in writing a letter to Congress asking to be “establish[ed] as an independent court system that can guarantee a fair day in court.”21 The proposal would allow “the immigration courts [to] become a stand-alone agency that would not be run or controlled by outside officials, with the goal of insulating judges from political pressure by any administration.”22 The article also notes that this “idea is percolating in the Democratic presidential contests, with three candidates—Julián Castro, Beto O’Rourke and Sen. Elizabeth Warren—presenting specific plans. Another candidate, Sen. Kirsten Gillibrand, drafted a bill last year to make the change.”23

  This notion has support and is within reach for Congress. Resolving the immigration courts crisis would bring the balance of power back to the branches of the United States government. Immigration judges would no longer adhere to the desires of the President and no longer would they have to hear an unrealistic quota of cases in order to keep their jobs.24 They would simply rule on the merits of the case—a novel concept.

How separation would work

  This post briefly explores the reasons why the immigration courts need independence from the executive branch and the attorney general, but it is important to outline how (if it all) this would be possible. Preston’s article indicates that “[m]ost proposals to reconfigure the courts would have Congress act under Article I of the Constitution.”25 The United States federal courts include the courts under Article III of the Constitution, and the adjudicative entities established by Congress fall under its Article I legislative powers.26 Congress has created several of these Article I courts using its Constitutional power, like the tax and bankruptcy courts.27 The Federal Bar Association has drafted proposed legislation to create such a court, because there is a consensus that the immigration court system is broken.28 It is up to Congress whether it wants to reconfigure the immigration courts to become an Article I court, but pressure from the people can keep it on track by reminding Congress of the injustices that immigration parties endure under the authority of the executive branch.

Conclusion

Injustice resides in the immigration courts. The executive branch continues to turn their backs on asylum seekers and their families causing them to return to a country that is unsafe. Aliens seek asylum because they are in danger (and probably have been for years). For some, entering the country illegally may be their only option, but that does not mean a country should turn them away. The United States was founded on inclusion and diversity and a way to flee a tyrannical environment that had become oppressing and, in some cases, dangerous. The framers of the Constitution created due process for a reason, and it belongs to everyone.

  The executive branch should no longer be in control of the immigration courts because it has abused its power for too long. A court that has become politicized is no court at all. Let us, collectively, make this call to Congress: political biases have no place in any court system; indeed, it is time for the DOJ and immigration courts to finalize their divorce.

  1. Evolution of the U.S. Immigration Court System: Pre-1983, THE U.S. DEPT. OF JUSTICE, https://www.justice.gov/eoir/evolution-pre-1983 (last visited September 25, 2019). See also Regulations Governing Departmental Organization and Authority, 5 Fed. Reg. 3502, 3503 (Sept. 4, 1940) (codified at 8 C.F.R. § 90.2).
  2. “At the conclusion of the proceeding the immigration judge shall decide whether an alien is removable from the United States. The determination of the immigration judge shall be based only on the evidence produced at the hearing.” 8 U.S.C. § 1229a(c)(1)(A) (2019).
  3. 8 C.F.R. § 1003.1(h) (2018) (emphasis added).
  4. Fatma E. Marouf, Executive Overreaching in Immigration Adjudication, 93 TUL. L. REV. 707, 741 (2019).
  5. Id. at 742.
  6. Id.
  7. See Hon. Alberto R. Gonzales & Patrick Glen, Advancing Executive Branch Immigration Policy Through the Attorney General’s Review Authority, 101 IOWA L. REV. 841, 920 (2016).
  8. Marouf, supra note 4, at 744.
  9. Id.
  10. Id.
  11. Matter of E-F-H-L-, 27 I. & N. Dec. 226 (B.I.A. 2014).
  12. Matter of Castro-Tum, 27 I. & N. Dec. 271 (A.G. 2018).
  13. Matter of L-A-B-R-, 27 I. & N. Dec. 405 (A.G. 2018).
  14. Matter of A-B-, 27 I. & N. Dec. 316 (A.G. 2018).
  15. Daniel M. Kowalski, DOJ Attack on Immigration Judges ‘Union Busting Plain and Simple,’ LEXISNEXIS LEGAL NEWSROOM, https://www.lexisnexis.com/legalnewsroom/immigration/b/outsidenews/posts/doj-attack-on-immigration-judges-union-busting-plain-and-simple (last visited Oct. 7, 2019).
  16. Id.
  17. 5 U.S.C.S. § 7103(a)(11) (2019).
  18. See Reno v. Flores, 507 U.S. 292, 306 (1993) (“It is well established that the Fifth Amendment entitles aliens to due process of law in deportation proceedings.”); see also Zadvydas v. Davis, 533 U.S. 678, 693 (2001) (“[T]he Due Process Clause applies to all ‘persons’ within the United States, including [noncitizens], whether their presence here is lawful, unlawful, temporary, or permanent.”).
  19. U.S. CONST. amend. V (emphasis added)
  20. Julia Preston, Is It Time to Remove Immigration Courts From Presidential Control?, THE MARSHALL PROJECT (Aug. 9, 2019), https://www.themarshallproject.org/2019/08/28/is-it-time-to-remove-immigration-courts-from-presidential-control.
  21. Id.
  22. Id.
  23. Preston’s article also notes that chairman of the House Judiciary Committee, Rep. Jerrold Nadler, a Democrat from New York, indicated that he will eventually be holding hearings on the proposals. Id.
  24. One major cause of disruption among immigration judges was the need to fulfill a quota of cases in order to expedite removal proceedings. Since October of 2018, judges were required to complete 700 cases a year and a mandated less than fifteen percent of decisions being sent back to them by appeals courts. In addition, time restrictions were set in place for some decisions. “To remind judges of their standing, Justice officials designed a speedometer that sits on judges’ computer screens, with green marking numbers of decisions that meet the metrics and stoplight red indicating where they are lagging.” Id.  Denise Noonan Slavin, a retired immigration judge, recalled seeing the dashboard: “So you sit down and you see that dashboard staring at you, updated every day, and you have 50 motions on your desk to decide whether to continue a case. If judges get into that red, they can lose their job.” Id.
  25. Proposals to reconfigure the immigration courts as a separate agency still within the executive branch have been compared to the tax court that was set up in 1969 “to have independent judges deciding federal tax disputes, taking them out of the grip of the Internal Revenue Service.” Id. The type of bill would be “drafted ‘with the idea of simply lifting the courts,’ and their budget, out of the Justice Department, said Elizabeth Stevens, chair of the organization’s immigration law section. Under this plan, the courts would remain in existing facilities and current judges would continue to serve for four years before being re-appointed by Senate-confirmed appeals judges to serve in the new system.” Id.
  26. Congress Should Establish an Article I Immigration Court, FED. BAR ASS’N, http://www.fedbar.org/Advocacy/Issues-Agendas/Article-1-Immigration-Court.aspx (last visited Nov. 3, 2019).  The adjudicative entities established by Congress are authorized under Article I of the Constitution: “To constitute tribunals inferior to the supreme Court.” U.S. CONST. art. I, § 8, cl. 9.
  27. The Federal Judicial Center distinguishes between Article I and Article III judges:Operating under its Article I, section 8 power to “constitute” federal tribunals, Congress has created several courts staffed by judges holding these protections who exercise the “judicial power” contemplated in Article III. These courts are commonly known as “Article III” or “constitutional” courts. The latter moniker can be confusing, as the Constitution does not oblige Congress to create any particular court and such courts routinely hear non-constitutional disputes.. . .Since the earliest days of the republic, Congress has also created separate “Article I” or “legislative” courts. Again, the nomenclature can be confusing as Article I does not specifically authorize these courts and they do not “legislate” in any traditional sense of the word. These courts range from independent federal tribunals staffed with judges who are not subject to the tenure and salary protection of Article III . . . Unlike other Article I judges (including bankruptcy, territorial and magistrate judges), for example, they are not administered by the Administrative Office of the United States Courts or governed by the Judicial Conference of the United States.Courts: A Brief Overview, FED. JUDICIAL CTR, https://www.fjc.gov/history/courts/courts-brief-overview (last visited Nov. 3, 2019).
  28. Congress Should Establish an Article I Immigration Court, FED. BAR ASS’N, http://www.fedbar.org/Advocacy/Issues-Agendas/Article-1-Immigration-Court.aspx (last visited Nov. 3, 2019).