The Attorney General's Judges: How the U.S. Immigration Courts Became a Deportation Tool
The nation's immigration courts have been dysfunctional since their inception.
Today, the system has effectively collapsed. The attorneys general appointed by President Trump have used their authority over the immigration courts to weaponize them against asylum seekers and immigrants of color in support of Trump's anti-immigrant policies. This report examines the system's collapse and explains why it cannot be salvaged in its current form.
To download the report – jointly produced by the Innovation Law Lab and the SPLC – click here.
Since its creation, the contemporary immigration court system has been perpetually afflicted by dysfunction. Today, under the Trump administration, the immigration court system—a system whose important work is vital for our nation's collective prosperity—has effectively collapsed.
This report explains how the collapse came to be and why the immigration court system cannot be salvaged in its current form. Decades of experience incontrovertibly demonstrate that the immigration courts have never worked and will never work to, as Chief Justice John Roberts says, “do equal right” to those who appear before them.
The immigration courts will never work because the structure of the immigration system is fundamentally flawed. Under the Immigration and Nationality Act, the attorney general of the United States is required to craft a functioning immigration court system: a system that provides genuine case-by-case adjudications by impartial judges who apply existing law to the evidence on the record following a full and fair hearing. Yet every attorney general has failed to do so.
Despite the life-or-death stakes of many immigration cases, the immigration court system that persists today is plagued by decades of neglect and official acquiescence to bias. These trends have created a system where case outcomes have less to do with the rule of law than with the luck of the draw. And under the Trump administration, the attorneys general have gone even further by seeking to actively weaponize the immigration court system against asylum seekers and immigrants of color.
Overwhelming evidence shows that the Office of the Attorney General has long allowed immigration judges to violate noncitizens’ rights in a systemic, pervasive manner that undermines the integrity of the court system. In speaking with immigration practitioners across the country, the authors of this report have heard first-hand accounts of how the attorney general’s unitary power shapes adjudication practices that are biased, inconsistent, and driven by politics: Judges fail to apply binding legal standards, make decisions based on illegally invented rules, engage in abusive treatment of noncitizens and their counsel, and even decide cases before holding hearings.
No one in the unitary system holds these judges accountable. The normal check in an effective judicial system—the appeals process—fails to ensure uniformity and accountability because it is equally infected by the politicized influence of the attorney general.
At the same time, attorneys general have abused their power by allowing enforcement priorities to usurp a court process that is supposed to be impartial and fair. Under the Trump administration, immigration judges are viewed as the attorney general’s proxies for enforcing deportations—not as independent case-by-case adjudicators.
Over the past two years, the attorneys general have plainly encouraged biased decision-making, including by fomenting judges’ distrust of asylum seekers and their attorneys. The attorneys general have interfered with immigration judges’ control of their courtrooms by reassigning case dockets to align with enforcement priorities and attacking crucial case management tools. And in contravention of every known norm respecting impartiality, the attorneys general have pitted immigration judges against due process by threatening to punish—and even fire—judges for failing to meet enforcement-driven case quotas.
The Trump administration’s manipulation of the immigration courts has irreparably undermined any remaining legitimacy of an immigration court system controlled by the attorney general. This report recommends that, in order to achieve a fair and functioning judicial system, immigration adjudication be moved outside the attorney general’s control into a truly independent Article I immigration court that includes merits-based appointments, tenure guarantees, and effective mechanisms of internal accountability and appellate oversight.
Only by removing the immigration courts from the dangerous control of the executive branch can a fair, independent adjudication system be created—a system in which judges truly “do equal right” to every individual who appears before them.
“To Do Equal Right”
When Reynaldo Castro-Tum was ordered deported on July 26, 2018, the record of proceedings—the official record of what takes place in a U.S. immigration court—appeared deceptively normal: A judge heard the case and, based on the record, issued a ruling. That is what judges in courts throughout the United States do every single day. In the federal court system, as in state court systems, judges strive to do “their level best to do equal right to those appearing before them,” as Chief Justice John Roberts has said.
That, though, is not what happened.
What the official record of proceedings hides, this report reveals: Castro-Tum, like so many others in immigration court proceedings, was a victim of the attorney general’s weaponization of the immigration court system as a mechanism for deportation, not fair adjudication.
If the measure of a judicial system turns on its ability to fairly apply law to facts—that is, to do “equal right to those appearing” before the court—then the U.S. immigration court system has failed. For decades, attorneys general have neglected the immigration court system and manipulated it for political ends, resulting in a weakened institution plagued by dysfunction. Since 2017, the attorneys general of the Trump administration have gone even further in usurping power by unlawfully exploiting the statute and regulations in order to weaponize the immigration courts to achieve maximum removals irrespective of fairness.
Take the case of A-B-: In July 2014, A-B- sought refuge at the southern border of the United States from decades of domestic abuse in El Salvador. Unprotected by the Salvadoran authorities and unable to otherwise escape her persecutor, she fled to the United States to seek asylum. A-B- had no idea that her escape from one ordeal would lead to the beginning of another. In December 2015, her asylum claim was denied by an immigration judge with a long history of bias against claims involving domestic violence.
After what should have been a successful appeal, the judge denied the case yet again on remand. The denial exemplified the immigration appellate process’s failure: The Board of Immigration Appeals once again issued a decision that the judge chose to ignore. Then-Attorney General Jeff Sessions subsequently took advantage of the situation by “certifying” the case to himself—that is, he used his controversial regulatory power to take over the case. He published a political decision that overruled well-established precedent and acted as a dog whistle to his “judges” to categorically deny asylum to survivors of domestic violence and Central Americans fleeing gang violence.
Castro-Tum and A-B- are, sadly, not unique. Immigration courts routinely hand down such politicized deportation decisions. Today, more than 800,000 cases are pending in our nation’s immigration courts. Many involve vulnerable individuals who fled violence in their home countries and seek refuge in the United States. U.S. law, incorporating international treaty commitments, makes asylum available to applicants who have a well-founded fear of persecution on account of one of five protected grounds: race, religion, national origin, political opinion, and membership in a particular social group. For these individuals, the outcome of their cases can be a matter of life or death.
One of the core responsibilities of the Executive Office for Immigration Review, an administrative court system under the control of the attorney general, is to decide asylum claims. While EOIR was intended to provide a fair and independent adjudication process, this vision has never materialized. In speaking with immigration attorneys across the country, the authors of this report have heard first-hand accounts of how the attorney general’s unitary power shapes adjudication practices that are biased, inconsistent, and driven by politics.
Key Observations from Attorney Focus Groups
Attorneys tell of judges who fail to apply binding legal standards and make decisions based on illegally invented rules. They report abusive treatment of noncitizens and counsel alike, describing judges who routinely belittle and retraumatize survivors of persecution and scream at their attorneys without cause or justification. And they recount experiences with judges who decide cases before holding a hearing, who “prosecute from the bench” and are “faithful to the government, but not faithful to the law.” No one in the unitary system holds these judges accountable. The normal check in an effective judicial system—the appeals process—is equally infected by the influence of the attorney general.
Many, such as the American Bar Association Commission on Immigration, have predicted the collapse of immigration court system. No reform initiatives undertaken thus far have mattered—because none of them have addressed the underlying structural problem caused by the attorney general’s control. Judicial independence is the hallmark of modern adjudication systems that adhere to the rule of law. By law, the attorney general has a constitutional and statutory obligation to create an immigration court system that works fairly and uniformly.
Instead, attorneys general have long neglected this duty to ensure that immigration judges act fairly and independently and have repeatedly manipulated the courts for political ends.
This report describes how unitary attorney general control over the immigration court system—including proceedings before immigration judges and the BIA—has caused irreparable systemwide failure. The report begins by examining the origins of the immigration court system, including the principles on which it was based and the problems its creation intended to solve. Next, the report describes the attorney general’s leadership responsibility over the immigration court system, deriving from his constitutional and statutory duty to create a court system that actually works: a system that is fair.
The report then elaborates on the attorney general’s failure to make the courts work, both by neglecting to ensure the lawful operation of EOIR and by abusing his power in order to manipulate and ultimately weaponize the court system toward enforcement-oriented ends. It concludes by echoing other respected organizations’ recommendations that, to achieve a fair and functioning judicial system, immigration adjudication must be moved outside the attorney general’s control into a truly independent Article I immigration court that includes merits-based appointments, tenure guarantees, and effective mechanisms of internal accountability and appellate oversight.
Origins of the Contemporary Immigration Court System
Since its creation, the contemporary immigration court system—in one form or another—has been perpetually afflicted by dysfunction. With the 1952 enactment of the Immigration and Nationality Act, Congress in plain terms tasked the attorney general of the United States to craft a functioning immigration court system. Since then, different attorneys general have tried to fulfill this mandate, but all of them have failed.
As we explain below, the first experiment that embedded the immigration courts inside the prosecutorial and investigative system resulted in Congressional hearings describing “gross abuse[s] of authority,” obstruction, and “crippling” problems. In 1983, the attorney general tried again, creating the Executive Office for Immigration Review, an agency entirely dependent on the attorney general and independent from some, but not all, of the immigration prosecutorial and investigative functions. That system persists today despite decades of neglect and official acquiescence to bias and a court system where an outcome often has less to do with the rule of law than with the luck of the draw.
To be clear: below the level of the attorney general—who is statutorily responsible for making the immigration court system work—there are many hard-working, conscientious judges, administrators, clerks, and analysts. Yet evidence shows that within an increasingly weaponized court structure, these individuals must struggle against the system in their attempt to do right to all who appear before them. Despite the personal efforts of these adjudicators and court personnel, the structure of the immigration courts remains fundamentally and irreparably flawed.
Immigration Courts Inside the INS
Under the Immigration and Nationality Act of 1952, the Immigration and Naturalization Service (INS) was an agency within the Department of Justice (DOJ) that was charged with enforcing, implementing, and adjudicating claims under the immigration laws. INS employees known as “special inquiry officers” reviewed and decided deportation cases.
Although these officers were given the title of “immigration judge” in 1973, they continued to be supervised by and dependent on INS enforcement personnel for office space, hearing facilities, support staff, supplies, and other critical resources. According to a prominent early immigration appellate judge, many of these enforcement personnel were hostile to the immigration court system, viewing immigration judges “as pushy intruders whose demands in the name of due process only obstruct the Service mission.”
The tension between the enforcement and adjudicative functions within the INS raised serious concerns about the independence of immigration judges. Judges’ attempts to conduct fair immigration hearings that afforded respondents a meaningful opportunity to be heard directly conflicted with the priorities of their INS colleagues and supervisors, who sought to increase and streamline deportations.
Immigration judges reported that INS officials regularly interfered with their operations. As one immigration judge later wrote to the Select Commission on Immigration and Refugee Policy, “[f]air and impartial hearings are not possible when one of the parties in each case controls the court system,” explaining that “[t]he strong desire [of enforcement personnel] to influence the judges directly or indirectly is repugnantly clear.”
This problematic adjudication structure became further strained in the late 1970s, when the INS began processing applications for asylum from Cuban and Haitian nationals arriving in the United States. The immigration judges’ lack of independence from the INS’ enforcement arm was manifested in clearly biased decisions against Haitian asylum seekers. Dale Swartz, a founding member of the National Forum on Immigration and Refugee Policy, testified before Congress about the issue.
“[T]he intended goal of the INS was to deny asylum to all Haitians, and the method to accomplish this end resulted in the wholesale disregard of due process guarantees . . . Their asylum claims were prejudged, their rights to a hearing given second priority to the need for accelerated processing . . . Those denials were not case by case adjudication, but an intentional, class-wide summary denial.”
By the early 1980s, there was widespread consensus that “crippling problems” in the immigration court system required structural change. Following extensive investigation, the Select Commission on Immigration and Refugee Policy issued a report in 1981 describing widespread “weaknesses in the hearing and review process in exclusion and deportation cases.” The report identified many barriers to fair, efficient, and independent adjudication at the immigration court level.
In the ensuing months and years, Congress continued to hold hearings on the state of the immigration court system. Scores of government officials, immigration practitioners, and expert stakeholders gave testimony describing pervasive problems, including due process violations, severe case backlogs, and improper enforcement pressures on immigration judges.
Immigration Courts Inside the Department of Justice
The Executive Office for Immigration Review was created in 1983. From the beginning, the EOIR was intended to provide a fair and independent adjudication structure for immigration proceedings. Its development was a reaction to widespread critiques that the pre-existing system was under-resourced, overburdened, violative of procedural rights, and embedded in an enforcement-driven context. However, despite broad agreement on the need for systemic reform, Congress did not pass legislation to improve the immigration court structure.
Instead, the attorney general created the Executive Office for Immigration Review by regulation. This new agency encompassed both the immigration courts and the administrative appellate body, the Board of Immigration Appeals. The reorganization was intended to “place similar quasi-judicial functions within a single organization and … result in a more effective and efficient operation of the Department [of Justice]’s immigration judicial review programs.”
Despite their title, immigration judges are not “judges” as they are known in state or federal courts. Their authority does not derive from Article III of the U.S. Constitution, which established the judicial branch. Immigration judges are not even “administrative law judges,” whose authority derives from Article I of the Constitution and who conduct proceedings under the Administrative Procedure Act.
Instead, immigration judges are “administrative judges” who, according to the Department of Justice, are “non-supervisory career attorneys employed by” the attorney general. Importantly, immigration judges “shall be subject to such supervision and shall perform such duties as the Attorney General shall proscribe” and “act as the Attorney General’s delegates.” In effect, immigration judges are the attorney general’s attorneys who decide immigration claims of individuals the government is trying to deport.
Within EOIR is the Board of Immigration Appeals (BIA), the appellate body for the immigration courts. The members of the BIA are also “attorneys appointed by the Attorney General to act as the Attorney General’s delegates.” Board members are governed not only by law and regulations, but also by “decisions of the Attorney General.” All decisions of the board are subject to review by the attorney general. The board may issue decisions by a single member; the single member may even issue a “summary dismissal” or “affirmance without opinion” wherein the board member is not required to provide any reasoning for the decision. Only in limited circumstances are cases assigned to a three-member panel or scheduled for oral argument.
By moving immigration judges out of the INS, the creation of the Executive Office of Immigration Review was also intended to increase judicial independence and remove the appearance of prosecutorial bias. These goals, however, remain unfulfilled. From the outset, the attorney general’s control over the EOIR has undermined its independence by exposing immigration judges to prosecutorial and political pressures. The Department of Justice is, after all, the nation’s leading prosecutor and law enforcement agency. It is not, by its very nature, a judicial agency. By keeping the immigration adjudication function inside the Department of Justice, the attorney general kept the EOIR under his unitary control.
Federal Court Critiques of Immigrant Adjudication
The Attorney General Must Make the Immigration Courts Work
Congress entrusted the attorney general with the important responsibility of making the immigration court system work. Our nation needs a working immigration court system because its responsibilities are vital to our national interests. Every day, the immigration court system is tasked with accomplishing important work that has a profound impact on immigrants and citizens alike: granting green cards, protecting persons fleeing persecution, evaluating hardship claims, and, in appropriate circumstances, authorizing removal. The U.S. Constitution requires that immigration courts do their work fairly.
The attorney general’s responsibilities are outlined in INA §§ 101(b)(4) and 103. These statutory provisions require him to ensure that the immigration court system provides genuine case-by-case adjudications by impartial judges who apply existing law to the evidence on the record following a full and fair hearing. INA § 103(g)(2) directs the attorney general to “perform such other acts as the Attorney General determines to be necessary for carrying out this section.” Such “other acts” must include overseeing and enforcing the constitutional, statutory, and regulatory requirements of due process and fundamental fairness in the immigration court system.
The attorney general must ensure genuine case-by-case adjudication where each person appearing before the immigration courts has a meaningful opportunity to present his or her claim and have it adjudicated by an impartial immigration judge in a manner that comports with due process. When the immigration court system consistently and systematically manifests both of these crucial characteristics, it serves our national interest. Without these two features, the immigration court system cannot function in the way that Congress intended and the Constitution requires.
A full and fair hearing: It is well established that “[i]n immigration proceedings, the Fifth Amendment entitles [noncitizens] to due process of law.” Our “traditional standards of fundamental fairness” include the “rights and privileges” specifically prescribed by the Immigration and Nationality Act, including the right to counsel at no expense to the government and the right to a “reasonable opportunity” to examine and present evidence and witnesses. These principles are reflected in regulations intended “to assist in the expeditious, fair, and proper resolution” of immigration matters by immigration judges.
Impartial immigration judges: “Unbiased, impartial adjudicators are the cornerstone of any system of justice worthy of the label.” In a working immigration court system, immigration judges would serve as impartial adjudicators fairly applying law to facts in each case before them. Accordingly, federal regulations direct that “[i]n all cases, immigration judges shall seek to resolve the questions before them in a timely and impartial manner consistent with the [INA] and regulations.”
The INA also directs that in removal proceedings, “[t]he determination of the immigration judge shall be based only on the evidence produced at the hearing.” Regulations further direct immigration judges to “exercise their independent judgment and discretion” in deciding individual cases, “subject to the applicable governing standards.” In order to do so, immigration judges must have the freedom to decide cases based exclusively on available facts and existing law. These basic principles are severely at odds with the prospect that an immigration judge could be influenced by the threat of retaliation for issuing a decision displeasing to the attorney general.
Beyond the Courtroom: Additional Obstacles to Asserting Rights
From a Neglected Court to a Weaponized Court
After decades of neglect and abuse by prior attorneys general, the Trump administration is weaponizing the immigration court system against asylum seekers and immigrants of color. There is no doubt that the immigration court system is in a state of legal and moral collapse, unable to consistently provide fair and equal treatment to the individuals who appear before it. Prior attorneys general have failed to adequately adhere to the rule of law by allowing pervasive bias and unlawful procedures to take root.
At the same time, attorneys general have abused their power by allowing enforcement priorities to usurp an adjudicatory process that is supposed to be impartial and fair. This enforcement focus has reached a new level under the Trump administration, as the attorneys general have actively sought to turn the immigration court system into a weapon of deterrence and deportation.
The Chronic Neglect of the Immigration Court System
Overwhelming evidence shows that the office of attorney general has long allowed immigration judges to violate noncitizens’ rights in a systemic, pervasive manner that undermines the integrity of the court system. Judicial bias is rampant within the immigration court system, with immigration judges across the country failing to provide fair, neutral, and consistent adjudication. Radical variations in case outcomes across the country demonstrate that courts are failing to apply immigration law in an impartial and uniform way.
Some immigration judges have created courtroom-specific sub-regulatory rules, unsupported by any legal authority, that function to deprive respondents of their due process rights. Judges also violate respondents’ procedural rights through unilateral docket changes and unprofessional behavior. These shortcomings are exacerbated by the failure of the administrative appeals process to fulfill its intended role of correcting errors—both legal and procedural, purposeful and accidental—made by immigration judges.
Set against the fair and impartial ideal, the attorneys general have failed to correct clearly violative behavior by immigration judges. Without checks and balances in place to ensure that the system functions properly, biased decision-making has become the norm in immigration courts nationwide.
The attorney general has tolerated bias in the immigration courts
Despite the requirement of an impartial adjudicator described earlier in this report, complaints of biased decision-making have surfaced regularly since the founding of the contemporary immigration court system. The litany of reports over the years demonstrates that all too often, judges’ conscious and implicit biases—based on factors including race, gender, class, a respondent’s marital or parental status, or the judge’s personal feelings about immigrants—color their views of respondents’ claims and may determine case outcomes. Even absent conscious bias, institutional directives and structural pressures prevent judges from fully considering the law and facts of each case and instead encourage bias in the form of categorical prejudgment of cases.
In the early 1980s, the newly formed immigration courts faced immediate critique for their biased treatment of asylum seekers from Haiti and Central America. Advocates for Haitian refugees in the early 1980s expressed concerns about bias against their clients; one attorney characterized the immigration court as “not so impartial a tribunal as one might hope and expect to find” in the United States.
And in 1985, advocacy groups filed a class action lawsuit alleging, among other things, nationality-based discrimination in the application of asylum laws resulting in disproportionately low asylum grant rates for asylum seekers fleeing civil war in El Salvador and Guatemala. After extensive discovery, the government agreed to a settlement allowing class members an opportunity to submit new applications for asylum and receive de novo—or new—adjudication of their claims. The settlement agreement announces, tellingly, that the same legal standard for asylum must apply to people of all nationalities and that foreign policy considerations should have no bearing on the determination of whether an asylum applicant has met that standard.
Studies show that by the late 1980s, the EOIR was already failing to deliver fair and uniform treatment of asylum claims in other contexts. The first empirical study of immigration court proceedings found that the asylum adjudication system was still based on ad hoc rules and standards, and that the decision-making process continued to be influenced by improper considerations, including social class, cultural factors, ideological preferences and political judgments.
Based on a two-year study of one immigration court, the researchers reported that “although extensive documentation exists of human rights abuses and high levels of politically motivated violence in Guatemala, Haiti, and El Salvador . . . no Guatemalan or Haitian applicant and only one Salvadoran was granted asylum during the study period.” The study also found that immigration judges approached asylum claims with “presumptive skepticism” and often questioned respondents the way a government attorney would on cross-examination, rather than conducting proceedings in a fair and neutral manner.
Today, our immigration courts are infected by the same bias that was rampant in the 1980s. Immigration judge bias manifests itself in the form of bullying and harassment from the bench, unsupported negative credibility determinations, and xenophobic and prejudiced statements. Some expressions of bias are made off the record, making it particularly hard to hold judges accountable. Some immigration judges also appear to prejudge cases, relying on their own views of the respondents’ characteristics or the type of claim instead of on governing law.
The continued presence of bias is vividly demonstrated by the huge variation in asylum grant rates across the country. Asylum case outcomes are “highly dependent upon the identity of the judge assigned.” The tremendous disparities in asylum grant rates across judges “show the amount of leeway immigration judges have and the impact their biases can have if left unchecked.” In 2017, immigration judges granted asylum at rates ranging from 97 percent to 0 percent. These discrepancies persisted both between jurisdictions and within courts in a single jurisdiction. Such variation has been documented for at least a decade, evidencing immigration judges’ failure to determine case outcomes through the impartial, uniform application of immigration law.
Although judges’ dockets vary in the types of cases they are assigned, the huge range and regional patterns of disparate grant rates merit close scrutiny. Today, “asylum-free zones” like Atlanta, Georgia; Charlotte, North Carolina; and El Paso, Texas—where immigration judges deny asylum applications at rates much higher than in other jurisdictions—are further evidence of a system that allows judicial bias to reign unchecked.
Our focus group discussions with immigration practitioners highlighted the failure of attorneys general to address rampant bias in the courtroom. Attorneys reported that some judges’ decisions are shaped by their “perceptions of people’s home country, and their own personal perceptions of what might motivate someone”—such as the misconceived notion that “all young men from El Salvador are here to work.”
One practitioner described a judge who believes that a respondent could not be homosexual if he or she had a child with a person of the opposite sex. Judges have also made prejudicial comments to respondents who use preferred gender pronouns that do not correspond with the judges’ preconceived impressions of the respondents’ gender identities. Attorneys also reported that some judges discriminate based on ethnicity or country of origin, such as by displaying anti-Latinx bias on the record or making broad statements that they “don’t believe any Chinese asylum claims.” Judicial bias against Central American respondents surfaced particularly frequently in focus group discussions.
Legal practitioners also drew attention to the presence of judicial bias against attorneys. For example, attorneys of color reported being asked if they were the client or “treated like the neighbor who came to help out.” Others indicated that some judges are “snippy” with attorneys of color or attorneys with accents.
Female attorneys reported that certain judges interrupted them more frequently, telling them to “calm down,” and commenting on their clothing in court. In one case, a lawyer was told she was granted a stipulation “because [her] perfume smelled good.” Focus group members also reported that female attorneys have faced sexual harassment from judges on the Atlanta bench.
Our focus groups also revealed a strong consensus among practitioners that immigration judges favored the government’s position. Judges are described as “prosecuting from the bench,” “forgetting they’re not [Department of Homeland Security],” and “always do[ing] what the government says.” Practitioners spoke of judges as “doing dirty work for the government” and “being faithful to bias to the government, but not faithful to the law.”
One attorney explained that judges “always look at [the law] from an enforcement perspective . . . in the light most negative to the respondent.” Another practitioner spoke of “the fallacy that there is separation between the EOIR and Immigration and Customs Enforcement,” stating that “it’s laughable that [immigration judges] then go and pretend to have some sort of judicial independence.” In some cases, practitioners feel that judges “do all the work for government attorneys” in making the government’s case.
Judges’ perceived bias is also manifested through preferential treatment of government attorneys. In San Francisco, attorneys noted that DHS attorneys were given favorable treatment, such as being allowed to turn in documents late or being aided by judges during a hearing when they had forgotten a legal standard. In another court, an attorney witnessed a pro se case in which last-minute evidence provided by the government was admitted by the court, although the respondent did not even receive access to the evidence until after the hearing.
The attorney general permits judges to enact sub-regulatory and arbitrary rules, creating disuniformity and impeding fair adjudication
As explained earlier, respondents in immigration proceedings must receive a full and fair hearing in line with constitutional due process and related statutory and regulatory rights. However, many immigration judges have adopted individualized “sub-regulatory” rules that often impede a respondent’s ability to apply for asylum, present evidence, or raise particular legal claims. Unlike standing orders in a district court, these sub-regulatory rules are generally not published or made available to attorneys or respondents. While some judges hand out copies of these rules in an ad hoc manner, others merely apply them as a matter of course. These rules often have no basis in the statute or regulations and generally serve only to impose unnecessary burdens on respondents.
Filing asylum applications: Under the INA, a respondent may file an asylum application that is complete and in compliance with the instructions that accompany the required form. However, practitioners from around the country report that immigration judges often impose additional requirements and reject applications that fail to comply with them. For example, attorneys in multiple courts spoke of judges requiring handwritten declarations from respondents, to minimize “interference” by attorneys. In Charlotte, at least one judge requires unrepresented respondents to submit multiple copies of their asylum applications, accompanied by personal declarations.
Other judges require respondents to specify in writing a limited number of “particular social groups” on which their claims are based—which often requires familiarity with asylum law and court precedent–precluding the subsequent development of different legal strategies in consultation with counsel. Judges also limit respondents’ ability to present their cases by requiring asylum applications to be filed on short time frames—for example, within a week of a respondent’s master calendar hearing. These restrictions have particularly harsh implications for unrepresented respondents and for respondents who cannot write in English.
Such judicially imposed requirements for filing an asylum application can greatly restrict a noncitizen's ability to present his or her case. Many asylum seekers are unrepresented and traumatized by the experiences that prompted them to flee. These factors often make it difficult, if not impossible, to fully describe the experiences underlying their asylum claims. However, if asylum seekers provide an incomplete account of their claims at the outset of a case, they may unknowingly undermine their credibility or risk having their claims rejected.
Restricting evidence: Even after an asylum application has been accepted, respondents in certain jurisdictions routinely confront sub-regulatory rules that limit their right to a “reasonable opportunity . . . to present evidence” in support of their cases. Attorneys reported numerous experiences with individual hearings being scheduled in fewer than 45 days—a practice which is unlawful for nondetained cases.
Judges in multiple courts fail to comply with regulations for the submission of evidence, in some cases imposing a submission deadline three or six months in advance of a respondent’s hearing—rather than the 15 days dictated by the courts’ own procedures manual. These ad hoc deadlines cause many problems, including preventing asylum applicants from introducing evidence of rapidly developing changes in country conditions or critical documents received from another country after the deadline.
Even when evidence is submitted, practitioners note that it is often not properly considered. One judge reportedly refused to consider evidence because it was “too graphic.” Another practitioner reported submitting evidence to the court, only to have the judge subsequently say the court had never received the documentation.
In a different case, a judge lost a respondent’s entire file and made the respondent’s attorneys recreate it. One practitioner also explained that judges may weigh evidence inconsistently, giving little to no consideration to a respondent’s supporting declarations while giving full weight to any police report, even if presented with conflicting evidence. Judges may also interfere with interpretation. In one case, a judge challenged an interpreter’s word choice, effectively talking the interpreter out of the persecutory language that directly supported the respondent’s claim.
Limiting testimony: Attorneys also report judges placing numerous limitations on testimony by experts or other witnesses, which can be crucial to establish a respondent’s credibility or the country conditions underlying his or her asylum claim. Some judges cut off witnesses, citing time constraints. Others require a written statement from witnesses, but do not allow in-person witness testimony.
Attorneys also report that many immigration judges undermine their ability to call expert witnesses. For example, some judges broadly prohibit telephonic testimony by expert witnesses, who may be at universities, research institutions, or private firms throughout the country. This limitation prevents respondents from presenting key evidence in the case.
Judges also limit respondent testimony and attorney involvement in problematic ways. Attorneys in El Paso spoke of intense pressure from judges to forego direct examination of their clients. As one practitioner explained, “there is a lot of pressure to buckle, because you are also relying on [the judge’s] subjective views.” Other judges forbid direct examination entirely if the respondent has submitted a written declaration to the court. Some judges call clients to testify and examine them from the bench before permitting them to present their stories through direct examination.
As one attorney explained, the judges “basically create their own narrative with self-serving yes or no questions—something that fits the judge’s preconception and has no basis in your client’s actual story.” Another described judges asking questions to damage the case: “They aren’t looking to get the full story, they just want something to hang their denial on.” Other judges refuse to allow whole categories of testimony because they “don’t need to hear about” certain topics. By curtailing the right to present evidence, such sub-regulatory and arbitrary rules limit respondents’ ability to fully develop their legal claims.
The attorney general permits immigration judges to engage in unilateral docket changes that undermine respondents’ right to a fair hearing
Respondents’ rights to a fair hearing have also been consistently undermined by immigration judges’ unilateral docket changes. In many courts, immigration judges reschedule cases—either advancing or delaying—with little or no notice to respondents and their attorneys. These trends have impeded asylum seekers from adequately presenting their cases and interfered with their right to counsel.
Attorneys report a huge amount of uncertainty in case scheduling. Practitioners describe judges’ case docketing as “exasperating and ridiculous,” with procedures that can feel “like a guessing game.” Practitioners recounted having hearings unexpectedly rescheduled on the day they were supposed to take place and waiting by the phone for five hours for a telephonic hearing. One attorney reported that practitioners cannot rely on the court’s hearing schedule, as cases are often taken off the calendar the day before the hearing.
Other judges have called attorneys the day before a hearing to tell them that the hearing would be held hours earlier in the day. One attorney described driving a long distance for a merits hearing that was then canceled, without notice, because the judge had a doctor’s appointment. Another described arriving for a scheduled hearing only to be told that the judge was “finished hearing cases” for the morning.
Practitioners also report that some judges often move forward merits hearing dates without adequate notice to respondents or their counsel. One attorney indicated that virtually none of the children on the El Paso juvenile docket in late 2018 ever got notice of their hearings. Another spoke of being in court and finding out that she had another hearing of which she had never received notice. Even when the court claims notices have been mailed, they are often not received; one attorney said this happens to her clients at least 20 times a year.
Lack of notice limits respondents’ time to gather evidence and impedes their ability to fully prepare for their hearings. Docket changes may also interfere with witnesses’ ability to testify. One attorney recounted an experience when a witness from El Salvador flew in to give testimony; when the hearing was arbitrarily rescheduled, the testimony was lost because the respondent could not pay for the witness to fly back.
In many cases, attorneys report an inability to prepare for or even attend a client’s hearing due to schedule changes. Attorneys recount that judges have held individual hearings without counsel present, or have effectively forced attorneys to appear telephonically rather than in person due to last-minute rescheduling. In addition to undermining attorneys’ ability to effectively represent their clients, such rescheduling leaves attorneys unable to manage their caseloads and resources, making them reluctant to take new cases when the timing of current cases is so unpredictable.
Practitioners also indicated that some scheduling restrictions appear to reflect judges’ predetermination of respondents’ claims. Attorneys report that judges schedule cases based on the perceived strength of a case, prioritizing cases they think will not be granted—and at times even writing “weak” on the scheduling order itself. Even when a judge does not explicitly deny in advance, one practitioner explained that “obviously” the judge intends to deny when merits hearings are scheduled a scant 30 minutes apart.
Some judges also show little willingness to accommodate the health and safety of individuals in their courtrooms. When heavy snow hit Charlotte, making travel unsafe, one attorney was told by the court administrator to stay home as a safety precaution; when she did, the court issued an in absentia removal order in her client’s case.
The attorney general has failed to address unprofessional conduct on the immigration bench
The immigration court system is plagued by a lack of professionalism on the part of many immigration judges. Plainly, no court system can be said to work fairly when unprofessional conduct by the judges is tolerated. Practitioners report judges who fail to adequately understand and apply the law, as well as judges who routinely demonstrate a temperament inappropriate to their adjudicatory role. The attorneys general have tolerated this unprofessionalism at a systemic level by failing to create a transparent mechanism that promotes accountability for such misconduct.
Legal incompetence and manipulation: While many practitioners surveyed characterized immigration judges as “smart” and “competent,” some shared experiences with judges who fail to understand or apply appropriate legal standards. Some attorneys spoke about “teaching” judges about the law and seeing recurring legal errors in judicial decisions, while others described immigration judges who fail to stay up to date on relevant case law.
Another practitioner observed that “some of the judges really don’t understand the evidentiary rules.” One judge told counsel that “I don’t like objections” and “the Federal Rules of Evidence don’t apply, so I can basically do whatever I want.” Other judges know the law but fail to follow it. One attorney in San Antonio described experiences with a judge who stated, on the record, that “I recognize that this [decision] is contrary to the statute.” Another in Kansas City spoke of judges “choosing to ignore Supreme Court precedent.”
Varying levels of familiarity with immigration law and procedure may also contribute to an acknowledged lack of uniformity in immigration judges’ application of the law. Attorneys said that the same particular social groups that are recognized in courts like Arlington and Baltimore are being routinely rejected in Charlotte. Practitioners across focus groups reported that judges “do not apply the same standards, and it does affect the outcome of cases.” Attorneys reported that even judges within the same court may have highly inconsistent standards for the level of evidence required to support claims for relief. Practitioners speculated that this lack of uniformity was sometimes due to factors such as the judges’ biases about a certain country of origin or regarding particular attorneys, but often there was “no rhyme or reason” behind the discrepancies. One San Francisco attorney described how judges applied standards differently based on “hot topics” in the news.
Among judges who were knowledgeable and competent in immigration law, practitioners noted that many manipulated it in a biased manner, stating that “the application of the law is tilted” and that judges “know how to use law against you.” One Charlotte attorney explained that judges “are up to date on the law and then interpret it in a way to deny as many cases as possible . . . They are knowledgeable about the law but they are not issuing decisions in accordance with the law.”
Lack of judicial temperament: Although the EOIR’s own ethical guidelines direct that immigration judges “should be patient, dignified, and courteous, and should act in a professional manner,” practitioners across focus groups described judges acting “in a manner that is not befitting a judge.” Attorneys in multiple courts also noted differences between judges presiding over detained versus non-detained dockets, with some commenting that judges on detained dockets were more “vicious” and had more “antagonism” than judges on non-detained dockets.
Many attorneys shared experiences of judges’ aggressive outbursts. Attorneys described how judges have yelled at and insulted expert witnesses. Some judges were reported to be “very abusive” to respondents, even when speaking through an interpreter. In one case, a judge threw an applicant’s asylum application (I-589) on the ground for a perceived lack of detail, announcing that “let the record show I threw the I-589 on the ground.” A San Antonio attorney recounted a judge becoming so irate about an attorney speaking on the record at a credible fear review that he stormed out of the courtroom. An Atlanta judge was described as “veins popping, slamming [his] chair, slamming files, [and] screaming.”
Attorneys spoke at length about the abuse immigration judges inflict upon the respondents, witnesses, and counsel in their courtrooms. Attorneys described both themselves and their clients as “terrified” of some judges. In our focus groups, judges were described as “caustic,” “creepy,” “evil,” “like a poisonous spider,” “hostile,” “nasty,” “very petty,” “needlessly abusive and patronizing,” a “sociopath,” and someone who “rips [clients] to shreds.” Another described “lots of incidents of a judge just saying bizarre and inappropriate stuff [and] sometimes just directly being a jerk.”
Practitioners also described how judges routinely demean and belittle the respondents who appear before them. Attorneys indicated that judges “talk down to respondents” and are “so patronizing and so condescending.” One attorney recounted an asylum case in which the judge told her client, who had never received formal schooling, that the client could not proceed with testimony “if we’re not going to use proper pronouns.” Another attorney reported that a judge’s hostile treatment of her client “really freaked [the client] out,” causing him not to want to discuss his asylum claim based on his sexual orientation.
Some judges cut respondents off harshly, snap their fingers for more rapid replies, or ask “Are you finished yet?” Others display a jarring lack of interest in the cases before them. One judge in Charlotte was described as “spend[ing] the majority of the individual [merits hearing] on the phone, you can see her scrolling. Then if she misses something she blames the respondent for confusing her.” Another judge regularly closes his eyes and leans back during respondents’ testimony, giving the impression of being asleep.
Attorneys also spoke about judges re-traumatizing clients in court. Some judges are highly dismissive of much of the trauma that comes before them. One judge summarized intense testimony of repeated sexual violence as sounding “admittedly awkward;” another characterized an attempted rapist as a “rejected suitor.” In another case, the judge dismissed abuse to a Central American woman, claiming “this doesn’t happen.”
Recounting a judge’s intimidation of a client with documented psychological trauma and physical and sexual abuse, one attorney recalled that “[the judge was] yelling at the client . . .she was about to lose it because of how the judge was treating her.” Another attorney similarly reported a judge’s “extremely abusive” treatment of her client on the stand while she was testifying about traumatic sexual assault; the judge’s behavior was so destructive that it caused the attorney to withdraw from immigration practice for a period of time.
The Board of Immigration Appeals has failed as an administrative appellate body
The Board of Immigration Appeals was created by the attorney general in 1940 and consolidated into the EOIR in 1983. As an administrative appeals body with jurisdiction to review all removal orders issued by immigration judges, the BIA is supposed to “provide clear and uniform guidance … on the proper interpretation and administration of the [INA] and its implementing regulations.” However, the BIA has done nothing meaningful to create uniformity in immigration adjudication or to hold judges accountable for deviations from the rule of law.
The failure of the BIA is evident everywhere one looks. In addition to the unchecked abuses and ineptitudes of many immigration judges, the failure of the appellate system is vividly illustrated by appalling discrepancies in case outcomes, both within and between courts. These disparities underscore the reality that the BIA is neither developing a helpful body of case law nor engaging in sufficient error correction to guide immigration judges in rendering more uniform decisions. Indeed, the BIA itself has issued conflicting decisions on the same legal question on the same day.
The BIA’s dysfunction has created a culture in which immigration judges are “really unregulated” and allowed “to just flap the handle and do things that aren’t right under the law.” The BIA’s effective abdication of its appellate role also fosters a court system where, according to attorneys surveyed, judges act like “I’m God” in the courtroom and are “untouchable.”
The BIA’s ability to engage in its core function of uniformly and fairly administering the immigration laws is also impaired by the attorney general’s control over its structure and members. The attorney general has made it very clear that BIA members are merely “attorneys appointed by the Attorney General to act as the Attorney General’s delegates in the cases that come before them.”
Structurally, the BIA’s independence in adjudication is illusory because, by regulation, its members are subordinate to the attorney general. For example, in 2002, then-Attorney General John Ashcroft intentionally reorganized the BIA by “reassigning” BIA members with whom he ideologically disagreed. The message he sent was clear: “rule against the government at your personal peril.” Separately, and just as problematically, the attorney general exerts control over BIA members by giving them personal stakes in the outcome of cases through individual performance reviews.
Through the EOIR director, the attorney general also exerts control over all of the cases that any BIA member reviews in his or her adjudicatory capacity. This case assignment power creates the potential for ideological assignments and, as the case of Castro-Tum suggests, the EOIR director has not hesitated to use the case assignment power to rig outcomes.
Manipulation of case assignments can deprive an individual of the right to a fair hearing and contravenes basic principles of due process. While the regulations state that the EOIR director cannot “direct the result of an adjudication” that limitation is largely meaningless because the regulation also provides that “nothing in this part shall be construed to limit the authority of the Director” to assign and reassign cases—that is, to manipulate the docket to predetermine case outcomes.
The attorney general has also weakened the BIA’s legitimacy by adopting policies that encourage BIA members to use shortcuts in rendering decisions. Rather than being required to produce well-reasoned decisions, regulations adopted in 2002 permit BIA members to issue “summary affirmances” that essentially uphold an immigration judge’s decision with a single sentence. In announcing these reforms, then-Attorney General John Ashcroft explained that the board “needed a complete overhaul” as it “had become a bottleneck in the system, undermining the enforcement of our country’s immigration laws” and encouraging “unscrupulous lawyers to file frivolous appeals.”
One byproduct of such streamlining has been to decrease “the quality of [immigration] decision-making at the administrative level” writ large. Additional streamlining reforms, which would further undermine the integrity of BIA adjudications, have recently been proposed by Attorney General William Barr.
The Weaponization of the Immigration Court System
Decades of intentional, disruptive neglect of the immigration court system were not enough for the Trump administration. In President Trump’s view, immigration judges would get in the way of deporting the maximum number of noncitizens. The Trump administration needed weapons to wield against asylum-seekers and other noncitizens. And so, beginning with President Trump’s inauguration, the Trump administration has been successfully converting the immigration courts into such weapons. The administration’s ultimate goal is for the immigration courts to become enforcers of deportation.
While the attorneys general of the Trump administration are certainly not the first to attempt this weaponization strategy, the intensity and zealousness of this administration’s efforts are unmatched in the EOIR’s history. The intent is clear not only from public statements of the attorneys general and other members of the administration, but also from the multiple steps already taken to transform the system into a weapon of deportation and deterrence.
This weaponization has taken many forms, including the recasting of judges as enforcement officers; the encouragement of bias against asylum seekers and their counsel; the imposition of case quotas, which destroy impartiality by threatening judges’ job security; the politicization of immigration judge hiring and firing; and the aggressive use of the certification power to eliminate important docket management tools and encourage the prejudgment of cases.
The attorney general has attempted to transform immigration judges into deportation enforcers
Under the Trump administration, immigration judges are viewed as the attorney general’s tools for enforcing deportations, not as independent case-by-case adjudicators. Over the past two years, the attorneys general have plainly encouraged, rather than discouraged, biased decision-making. As one former immigration judge has described, the Trump attorneys general “have had no interest whatsoever in fairness, impartiality, and due process. Their only interest has been in producing more removal orders and jiggering the system to do that . . . I don’t even think there’s a pretense of due process anymore.”
The attorney general has directed judges to enforce an agenda of deterrence and deportation
Under the Trump administration, the attorney general has abused his power by instructing new judges to decide their cases in ways that further the Department of Justice’s enforcement and deterrence goals, prioritizing speed over fair case-by-case adjudication.
In speeches to new immigration judges in 2018, Attorney General Sessions underscored the DOJ’s “firm goal…to end the lawlessness that now exists in our immigration system,” stating that “our goal is not to just prosecute more but to deter and end illegality.” Emphasizing that “[c]ases must be moved to conclusion,” he called on judges to consider their “disposition rates,” and keep in mind that “[v]olume is critical.” No guidance was given on the importance of developing the facts of a case or staying current on developments in the law.
Enforcement priorities have been emphasized directly in judges’ training sessions. In describing the judges’ 2018 annual training conference, one former immigration judge explained that “[t]he entire conference was profoundly disturbing. Do things as fast as possible. There was an overarching theme of disbelieving aliens and their claims and how to remove people faster.”
One former immigration judge has noted her “grave concerns, based on what I’ve seen in court recently, that [new immigration judges] have been appropriately trained to be judges in a professionalized, [truly independent] immigration court.” Another explained that “there isn’t even any attempt at a proper training. The whole indoctrination is you’re not judges, you’re really enforcement. You’re really a branch of DHS in robes.”
The attorney general’s instructions have also endorsed and promoted judicial bias against asylum seekers. Attorneys indicate that many judges have an attitude that “we have to stop this influx of migrants.” As one attorney put it, judges “are in line with this whole enemy at the gates mentality and paranoia, in line with everything that is happening at the southern border.” One attorney heard a judge say, off the record, that “the asylum seekers on the border are an invasion. You can’t deny that they are like an invading army, and we have to sort out who is who.” As another practitioner explained, even if judges “may not think of themselves as a deportation ‘machine,’ [they believe] that everybody who is stuck in the machine deserves to be there.”
While attorneys said that many judges were already demonstrating this bias before 2017, they explained that these judges have been “empowered” and “fully emboldened because of what Trump champions.” One practitioner stated that while “tendencies toward bias were always there,” judges now “have more license to act on them and not worry about repercussions.” These biases directly undermine respondents’ rights to fair hearings and impartial adjudicators.
The attorney general has manipulated judicial dockets to achieve his enforcement priorities
The Trump administration’s attorneys general have interfered with immigration judges’ control of their courtrooms by reassigning case dockets to align with their enforcement priorities. Here the administration has followed the example of prior attorneys general: In 2014, in response to increasing arrivals of unaccompanied minors at the U.S.-Mexico border, the DOJ created what was called the “rocket docket,” moving newly arriving minor and family cases to the top of judges’ dockets, despite objections by immigration judges.
These priorities were revised by the Trump administration in January 2017 to target detained noncitizens, certain unaccompanied children, and noncitizens released from prolonged detention for unfairly expedited hearings. Most recently, an expedited “family unit” docket has been created for some courts, which fast-tracks the asylum cases of newly arrived families in the United States without consideration of due process. Immigration judges now give respondents mere weeks to find attorneys, collect evidence, prepare witnesses and testimony, and submit such other materials as may be required by judges’ sub-regulatory rules.
The attorney general’s manipulation of immigration court dockets has been interpreted by immigration judges themselves as an enforcement-driven interference with their jurisdiction. As Dana Leigh Marks, a San Francisco immigration judge, has explained:
The “deployment” of judges to the border—just the word feels inappropriate to a lot of judges. It does imply a military force, and while we are related to immigration law enforcement, we are supposed to be neutral adjudicators. We want to be the most efficient and effective in deciding the cases in front of us, and there shouldn’t be any kind of feeling that there is a political basis for influencing how those decisions are made.
National Association of Immigration Judges President Ashley Tabaddor has similarly described how “constant docket shuffling” is one of the products of the use of the EOIR “as an extension of a law enforcement agency’s priorities.” Particularly when combined with the attorney general’s recent imposition of case quotas as mentioned earlier, docket shuffling has exacerbated enforcement-driven pressures on immigration judges.
Enforcement-driven docket shifts undermine judges’ ability to manage their own caseloads effectively. The EOIR has acknowledged that priority dockets “did not produce significant results” in effectively navigating cases through immigration court. Instead, docket manipulation has exacerbated an already huge backlog in immigration court cases.
When judges are redirected to hear new dockets, their existing case dockets—which may already include thousands of cases—are seriously disrupted. Calendar shifts due to expedited priority cases can cause pre-scheduled cases to be “kicked” months or years into the future. For example, when the Trump administration detailed immigration judges throughout the country to courts along the U.S.-Mexico border in 2017, more than 20,000 cases were delayed in the immigration courts they left behind.
Docket shuffling thus contributes to a growing backlog of cases, in which the average immigration case now takes more than two years to complete. This shuffling also has a severe impact on respondents. According to one attorney in San Antonio:
I had last year a client who had been detained . . . close to a year when his merits hearing was bumped because they sent the judge to a non-detained docket in El Paso. His hearing was bumped [from] April to July, then bumped again . . . My client was suicidal when I told him that case was moved from April to July . . . I canceled [a major family vacation] to make the July date, then the judge just rescheduled.
As another attorney explained, “arbitrary prioritizations wreak havoc on case management,” giving so-called “priority” cases inadequate time to prepare while further extending the backlog for pending cases that may have been waiting for years.
As Tabaddor, the NAIJ president, has explained, even adding new judges would not help solve the docketing crisis.
[The EOIR is] not run like a court; the necessary structure and infrastructure that’s supposed to be in place hasn’t been put in place. So we have judges who don’t have sufficient support staff. We have judges who don’t have courtrooms. We have incidents, in certain situations, that we don’t have in-person interpreters allowed to us because of the, frankly, the mismanagement of the court’s budget.
Former immigration judges have echoed this sentiment, noting that “even on the X’s and O’s level, you have this stunning incompetence and inability to run a judicial system just from the technical standpoint—they can’t hire, they can’t plan, they can’t train, they can’t get the resources out there.” This lack of resources also directly impacts judges’ ability to fairly decide cases, as judges are forced to take on greater administrative responsibilities, reducing their available time to review evidence and deliberate upon cases.
The attorney general incites prejudice against asylum seekers and their attorneys
The attorney general has encouraged judicial bias by fomenting distrust of asylum seekers and their attorneys. In speeches to the EOIR, then-Attorney General Sessions characterized, without evidence, the asylum system as “currently subject to rampant abuse and fraud” and “overloaded with fake claims,” stating that “the vast majority of the current asylum claims are not valid.” He described the credible fear process as “an easy ticket to illegal entry into the United States.”
Sessions also specifically attacked the credibility of immigrants’ counsel, labeling them as “dirty immigration lawyers who are encouraging their otherwise unlawfully present clients to make false claims of asylum.” He warned new immigration judges of “good lawyers” who “work every day—like water seeping through an earthen dam—to get around the plain words of the INA to advance their clients’ interests.”
Practitioners report that such blanket prejudgment of asylum claims has been disastrously effective: Immigration judges have adopted an inherent, pervasive distrust of asylum-seeking respondents. Attorneys describe how some judges “disbelieve everything” that comes before them in asylum hearings. One judge, without any record evidence, told an attorney in a bond hearing that a client had to have a strong claim “because a lot of them are lying, they’re just lying.”
In another case, after a client testified that her husband’s severe physical abuse had caused her to miscarry a child, the judge commented that “essentially he couldn’t even be sure that the Respondent had been pregnant.” Other judges consider a client “a liar and evasive” if she has faced any type of trauma, claiming that a truly traumatized individual “would have had years of therapy.”
Judges’ distrust also extends to respondents’ attorneys. Judges in some courts regularly question attorneys’ integrity, falsely accusing them of lying in court. In some cases, judges have filed or threatened to file unwarranted complaints against attorneys who attempt to zealously represent their clients. Attorneys also reported that judges, without any apparent basis, have questioned their judgment and qualifications in court, even going so far as to call one attorney’s supervisor in open court. Some judges insult attorneys in front of their clients, undermining the clients’ trust.
Judges’ hostility towards attorneys directly impacts the quality of representation as well as clients’ case outcomes. Attorneys report that they have “nightmares” about certain judges, or “can’t sleep for a week because of the pressure and hostility” they know they will face in certain courtrooms. As one practitioner explained, “A lot of judges, their goal is to break down the attorney-client relationship so the client doesn’t want the attorney anymore or gives up the case.” Other practitioners reported that certain judges prejudge cases based on who is representing a client. In addition, some judges use scheduling and docketing to retaliate against specific attorneys.
Former immigration judges have noted how poor treatment by judges “demoralizes” private attorneys, explaining that “morale in the private bar is bone zero because the judges are rude, they will not listen—they just want to move the meat. And it’s just a totally broken system.”
The attorney general categorically encourages deportations by giving an immigration judge a personal stake in every case outcome
In contravention of every known norm respecting impartiality, the attorney general has pitted immigration judges against due process by threatening to punish the judge—including through termination—for failing to adhere to enforcement-driven case quotas. As of Oct. 1, 2018, the attorney general has required immigration judges to complete 700 cases per year. Immigration judges who fail to meet case quotas and performance standards risk facing disciplinary action including termination.
The pressure of case quotas can feel ever-present to an immigration judge. Logging into their computers each morning, a performance dashboard appears. This dashboard uses red, yellow, and green to reflect compliance with performance goals, and acts as “a constant reminder for judges . . . of how much the administration places emphasis on numbers; on quantity rather than quality.”
Tying immigration judges’ employment to numerical performance measures presents an unheard-of conflict because it gives judges a personal stake in case outcomes and encourages them to push cases through quickly without sufficient attention. As Tabaddor, the NAIJ president and immigration judge, has noted, this personal stake is in conflict with the principle that “a judge [should] be completely divorced from the interests of the parties over whom he or she is presiding.”
Congress has recognized the threat that such performance evaluations pose to judicial independence by exempting administrative law judges (ALJs) from performance appraisals and ratings. Case quotas are also contrary to recommendations made in a report commissioned by the EOIR itself. The NAIJ has warned that the imposition of numerical case completion quotas on immigration judges “could be the death knell for judicial independence.” As one attorney said, quotas are “trying to break the courts.”
Case quotas also prioritize speed over other adjudicatory concerns—including fairness. As one former immigration judge explained, “to tie all of that to performance evaluations is just highly inappropriate in a judicial setting . . . [I]t encourages quick slapdash justice.” Practitioners’ experiences suggest that many judges are attempting to meet the attorney general’s new standards by adopting methods that infringe upon noncitizens’ rights to full and fair hearings. Before 2017, merits hearings were regularly scheduled for three-hour blocks, with judges hearing one case in the morning and another in the afternoon. Some courts are now scheduling three times that many. As one practitioner explained, this scheduling “necessarily means that you won’t have time to present your full case.” One practitioner explained the impression that the judges seem to use overbooking to rush hearings, in order to cover for a “lack of desire to conduct hearings fairly.” Former immigration judge John Richardson described the outcome of the quotas as a “law enforcement assembly line”:
Due process is nothing. It’s an assembly line. They come down a belt, you’ve got a big stamp, you stamp them on the forehead that says “deport,” and away they go. The problem is you don’t have time to grant relief and have a hearing . . . There’s no due process. There is no judging. It’s just a law enforcement assembly line, quite frankly.
Even for judges attempting to uphold due process, case quotas’ heightened pressure increases the risk that implicit bias will play a larger role in their decisions; research has shown that under the stress of unmanageable caseloads, immigration judges tend to base their decisions on instincts rather than reasoned legal analysis and the facts of each case.
To meet the quota system, many courts are now using “stacked” dockets, in which multiple merits hearings are scheduled for the same timeslot. Attorneys describe arriving at court for a long-awaited merits hearings only to find that the hearing time has been triple-booked, resorting to “rock, paper, scissors” with fellow attorneys to determine their order of appearance in court. Attorneys may be forced to wait for hours, or a case may not be heard at all on a given day, requiring respondents, attorneys, and witnesses to come back for the next hearing. As one attorney explained, “[it] feels like a huge waste of resources and time when you have a whole family there, especially when they’ve traveled great distances.”
Delays also place attorneys and clients in an “impossible” position, as available evidence and testimony may weaken over a period of years. As a former immigration judge explained:
[T]he more cases get shuffled off, the harder they get to try because circumstances change, country conditions change. Witnesses disappear. Lawyers change. So a case that could have been done fairly straightforwardly a year after it was filed, eight years after it’s filed that’s a whole different ballgame.”
Judges’ publicly expressed views of case quotas vary widely—in Atlanta, for example, judges range from talking about the numbers “all the time, like the whole thing is a game,” to getting “instantly angry” if an attorney suggests any actions are due to case completion quotas. Yet attorneys across courts report that judges are aware of and concerned about their completion statistics. Practitioners explained that some “cases are moving incredibly fast and clients are unable to prepare,” and “cases move so quickly it’s hard to put a substantive case together.”
Even longtime judges, who were initially disdainful of the new directives, seem to be changing their behavior to comply with them. Attorneys report that judges who push back against the direction of the attorney general have done so to their “peril,” having been “worn down” by pressures to fall in line with the Trump administration’s policies. Former immigration judges report that their colleagues who are still on the bench are “scared for their jobs.” They emphasize that the administration has “sent the message that this is serious; that if you don’t meet the quotas, you really are going to be out of a job.”
In at least one instance, the attorney general’s emphasis on case closure has resulted in direct interference with a judge’s docket. In Matter of Castro-Tum, Judge Steven Morley attempted to delay issuing a ruling to ensure that the respondent, who had entered the United States as an unaccompanied minor, had notice of his hearing. In response, the EOIR leadership reassigned the case to a supervisory immigration judge, who traveled from Virginia to Philadelphia to conduct a single hearing. She ordered the respondent removed in absentia without inquiring further into the due process concerns raised by Judge Morley and an attorney appearing as friend of the court. The EOIR also unlawfully removed 26 additional cases from Judge Morley’s docket without explanation; all 26 cases involved the due process rights of juvenile respondents.
The attorney general’s office has undermined the EOIR’s legitimacy and neutrality through politicized hiring and firing
The attorney general’s office has abused its supervisory authority by unlawfully politicizing the hiring and firing of EOIR personnel. Given the importance of expert knowledge in a specialized court system, selecting adjudicators based on ideology—rather than relevant knowledge or adjudicatory skills—undermines the integrity of the entire system. Merits-based appointments are especially critical in the immigration court system, where the relevant law is notoriously complex. Selecting administrative judges based on political considerations is also illegal.
Nevertheless, under the Trump administration, the Department of Justice has faced serious allegations of illegally blocking the hiring of EOIR adjudicators based on political bias. While the Trump administration is not the first to exploit the appointment process, as this report notes, the impact of its weaponized hiring may be the most widespread. In spring 2018, members of Congress expressed concern that offers to multiple candidates for immigration judge and BIA positions had allegedly been withdrawn or delayed due to improper consideration of their perceived political or ideological views.
The DOJ has also reportedly changed the qualifications for immigration judges to favor individuals with law enforcement experience. This revision has led to a consistent overrepresentation of individuals with immigration enforcement experience among immigration judges and BIA members. Roughly three-fourths of immigration judges hired by the Trump administration have prosecutorial experience, and many previously worked for ICE as trial attorneys who represented the government in removal proceedings.
Former immigration judges described the system as being filled with “all these prosecutors who have been trained to just [give] assembly-line justice,” noting that “anybody other than somebody with a government background has basically been shut out of the 21st century immigration judiciary.” Attorneys also report that this past employment is an important factor undermining many judges’ impartiality. One practitioner said that former trial attorneys still act like prosecutors from the bench—“they don’t purport to be neutral.”
In addition to directly abusing powers of appointment and removal, the attorney general’s increasingly enforcement-oriented directives have pushed many judges to resign or retire early. As NAIJ President Tabaddor has explained,“[t]he job has become exceedingly more difficult as the court has veered even farther away from being administered as a court rather than a law enforcement bureaucracy.”
Attorneys also have the sense that some judges feel offended, insulted, and undermined by their treatment under the current administration, feeling discomfort about “being demoted to roles of clerks.” When long-time Phoenix Immigration Judge John Richardson retired in September 2018, he stated that “[t]he timing of my retirement was a direct result of the draconian policies of the Administration, [including] the relegation of [judges] to the status of ‘action officers’ who deport as many people as possible as soon as possible with only token due process.”
Another immigration judge reported that immigration adjudication “has become so emotionally brutal and exhausting that many people I know are leaving or talking about finding an exit strategy. Morale has never, ever been lower.” Former immigration judge Laura Ramirez, who retired from the San Francisco court in December 2018, has explained that this trend jeopardizes EOIR’s integrity:
For the system of justice, there’s these highly qualified, fair, thoughtful people who are being squeezed out of the system for political reasons, basically . . . The system can’t be fair if good people … are pushed out.
A History of Politicized Hiring in Immigration Courts
The attorney general’s office has used its certification power to encourage prejudgment of cases and undermine due process
The attorney general’s office has abused its controversial certification power in ways that further jeopardize asylum seekers’ access to a fair hearing. Federal law grants the attorney general broad authority to review and unilaterally reverse BIA decisions on his or her own initiative. This “certification” process results in precedential decisions that are binding on both immigration judges and the BIA.
While agency head review is not uncommon throughout the executive branch, particular concerns have been raised about conflicts of interest in the immigration context, where the nation’s chief law enforcement officer is able to override a specialized adjudicator’s decisions in cases in which the government is a party.
Controversially, attorneys general have also interpreted the certification process to be unconstrained by due process concerns, such as requirements of a fair hearing, that otherwise apply throughout the EOIR’s adjudicatory process.
The attorney general’s vast certification powers have also been critiqued for being “vulnerable to politically driven decisionmaking” and driven by a prosecutorial agenda. Attorneys general across administrations have selected and decided certified cases based on political preferences rather than to promote uniform application of the law. As Tabaddor, the NAIJ president, has noted:
[The attorney general’s certification power turns immigration courts into] basically a veneer for a courtroom . . .[T]he Attorney General ha[s] the ability to step in on any one of the cases and take a case and use that case as a mechanism to extend whatever law enforcement policies the executive branch is following at that point. So when you have a court system that allows a prosecutor to engage in this type of super veto power and insert himself or herself into the proceedings, that is highly problematic.”
Under the Trump administration, the certification power has arguably been used as one of the most powerful tools to implement the administration’s pro-deportation agenda. Former immigration judges characterize the use of the certification power by the Trump attorneys general as an attempt “to try to really force the judges into doing exactly what they want them to do” in service of their weaponization goal. Carol King, a former immigration judge, explained the issue:
The problem with the certification power goes deeper than individual administrations. Having one person at the helm that can, with a stroke of a pen, undue decades of painstakingly considered legal development based on political or policy considerations is inherently problematic. But now we’re seeing it being used to deliberately undermine the immigration court system itself, which was developed over time to provide a due process for determining who is allowed to stay in our country. That has always been the danger and now we’re seeing an administration weaponize this aspect of our immigration court system to undermine the system of due process that has been developed.
In discussing a recent certified decision, one attorney stated: “It’s a great way to terrorize people by using a false reading of the law, for as long as you can get away with it.”
In furtherance of their weaponization agenda, the Trump attorneys general have strategically certified cases to channel immigration judges toward denying asylum claims. These certifications include decisions that undermine individualized determination of cases and limit immigration judges’ adjudicatory tools.
The attorney general’s office has issued precedent encouraging the categorical prejudgment of asylum claims
In 2018, then-Attorney General Jeff Sessions published a self-referred decision in Matter of A-B- in which he authorized and encouraged his immigration judges to categorically deny asylum claims based on the “type” of case, instead of considering individual facts and fair application of law to those individual facts.
This precedent was set despite the existing requirement that an applicant must establish the prerequisites for an asylum claim and show that she is a “refugee” within the meaning of the INA. The INA has long been interpreted to protect women fleeing a range of gender-based harms. Individuals have also successfully brought claims relating to gang violence in a range of contexts, and under multiple protected grounds—under case-by-case adjudication.
There has never been a categorical bar against such claims, nor a blanket rule that all claims involving domestic violence are valid. Rather, each case has traditionally been assessed on its merits, measured against the same general standards applicable to all claims. Reaching beyond the facts of the case before him, Sessions held that few claims pertaining to domestic or gang violence perpetrated by nongovernmental actors would qualify for asylum—an attempt to set forth a new policy that would make the vast majority of claims related to domestic violence or gang violence fail “in practice.”
In addition to overturning well-settled case law, Matter of A-B- disrupted a long-term consensus between the government and immigration advocates that domestic violence, in certain circumstances, is an appropriate basis for granting asylum. Paul Schmidt, a former immigration judge and BIA member, described how, “after a 17-year struggle to finally get [domestic violence cases] right, for Sessions to come along and basically undo the consensus—it’s totally outrageous and inappropriate.”
Jeffrey Chase, another former immigration judge, further explained that while the Bush administration had backed away from issuing a similar decision, based on pushback from conservative women’s groups, “the difference is Sessions absolutely didn’t care. Not only Sessions, but any A.G. in this administration—they feel that just because they don't like it, it doesn’t matter that the sides are in agreement, that there’s no issue in dispute, that it’s settled law.”
Instigated or encouraged by the attorney general’s guidance in Matter of A-B-, attorneys report that judges have begun to “pretermit” (deny prior to a merits hearing) or threaten to pretermit cases, based on the case “type.” Even when cases are not explicitly pretermitted, many judges actively discourage respondents from requesting relief.
Judges in multiple courts attempt to convince respondents at master calendar hearings that their claims will inevitably fail, so it is in their best interest to give up without finding attorneys and take voluntary departure orders. In many cases, these warnings lead unrepresented respondents to give up their claims at an early stage in proceedings.
An attorney in El Paso recounted that a judge tells asylum seekers: “This is the bye-bye place. Ninety-nine percent of you are going to fail. You’re not going to succeed. So think about this when you decide whether you want to ask for counsel.”
Even when claims progress to a merits hearing, they are regularly prejudged. Former judges point out that “lawyers have to push the boulder all the way up the hill on every single case now,” which reduces their capacity to take on others. And while creative lawyers can still win domestic violence and gang cases, “the problem is the unrepresented people, it’s like shooting fish in a barrel” for a judge to deny their cases. As former immigration judge Rebecca Jamil noted:
I know that there are many conservative courts that are essentially doing six to eight A-B- cases in a slot and saying “this is an A-B- case” and not allowing testimony and just plowing through. And it’s horrifying to me . . . It blows my mind what a denial of due process that is, and a denial of reality in so many of these countries.
Jamil also reports that new judges are being improperly trained that “cases like Matter of A-B- should be applied like a statute” in order to categorically deny asylum eligibility to respondents.
With courts emboldened by the letter and spirit of Matter of A-B-, practitioners describe “types of cases that [judges] have predetermined should not win.” As one attorney explained: “[B]efore you even walk into court, your case has already been denied.” Another practitioner recounted a judge telling her: “I haven’t had a chance to look at the evidence but I’m already going to tell you we aren’t going to grant this.”
Charlotte attorneys report that at least one judge simply issues removal orders without holding merits hearings, sometimes contacting the attorney the night before to say that there is no need to come to court as he plans to deny the case. Other attorneys described judges who write denial orders before a hearing has been completed.
The attorney general’s office has undermined due process by depriving judges of important docket management tools
Under the Trump administration, the attorney general has also used his certification power to significantly limit judges’ access to adjudicatory tools. In each of these strategic certifications, the attorney general issued decisions that limit judges’ independence to manage their dockets and reduce respondents’ access to due process protections. In 2018, Sessions’ decision in Matter of Castro-Tum overruled decades of immigration court practice by eliminating immigration judges’ discretionary authority to suspend immigration proceedings through administrative closure.
His subsequent ruling in Matter of S-O-G- & F-D-B- similarly abolished immigration judges’ discretionary ability to terminate or dismiss removal proceedings. Before these decisions, judges had used these adjudicatory tools to manage their dockets without foreclosing respondents’ eligibility for immigration relief—for example, by suspending removal cases in which respondents were waiting for another type of immigration application to be processed by United States Citizenship and Immigration Services, the immigration benefits branch of DHS.
The attorney general’s decision in Matter of L-A-B-R- also severely limited judges’ discretion to grant continuances, restricting an important mechanism for providing respondents with adequate time to find counsel and gather evidence. And in Matter of E-F-H-L-, Sessions reopened and vacated a decision that had required immigration judges to hold an evidentiary hearing before ruling on a respondent’s asylum claim, discarding important precedent that had clearly precluded judges from pretermitting asylum claims without a full hearing.
The courts have felt acutely the impact of decisions removing tools such as administrative closure and continuances. As one former judge explained, “It’s absurd. They’ve basically taken the few things that worked in the system and disabled them so they don’t work anymore.”Another judge described how he had used administrative closure to suspend thousands of cases that had other pending resolutions, such as family-based visa petitions. When administrative closure was eliminated, those cases were all re-calendared and “it was just an absolute nightmare—it clogged the system.”
Practitioners report that judges are now consistently denying continuances in courts across the country. As one practitioner explained: “Judges have panic in their eyes when you ask for a continuance.” In Charlotte, judges cite “concerns for administrative efficiency” and their “heavy docket of pending cases” in ruling to deny continuances.
Requests for continuances to find counsel are granted very inconsistently, depending on the judge. Even judges who selectively grant continuances may “keep a tally” of continuances in a case, regardless of whether the extensions are at the request of the client and his attorney or for another reason. Some judges also set attorneys up for failure; one judge denied a respondent’s continuance request due to the lack of certain evidence, after having previously told the respondent’s attorney the same evidence was not necessary.
The denial of continuances can adversely impact respondents’ ability to present their claims for relief. One attorney described the “destructive” impact of L–A–B–R– in the Atlanta court, where there has been a “noticeable increase” in respondents accepting voluntary departure and removal orders due to a lack of continuances to find representation and prepare their cases.
Another attorney recounted an instance when a judge had refused a continuance despite realizing that the interpreter was speaking the wrong dialect; the subsequent appeal cited at least 27 times when the court could not understand what the respondent said. Attorneys also report having to work especially hard at every continuance request, which takes time away from their preparation of clients’ merits cases.
The immigration court system has failed to fulfill the constitutional and statutory promise of fair and impartial case-by-case adjudication for noncitizens in removal proceedings largely because the attorney general’s unitary control has always bent the system toward enforcement and away from fair adjudication. This unitary control has enabled the weaponization of the court system under the Trump administration. It also undermines the ability of immigration judges to undertake independent adjudications and to provide full and fair hearings, and simultaneously fails to hold judges accountable for due process violations.
Effective reform to address the attorney general’s abuse of power must include safeguards to insulate immigration judges from political pressures as well as mechanisms to curb and correct procedural injustices.The following recommendations offer a path to reform:
Create an independent Article I court outside the attorney general’s control
Decades of experience plainly show that the attorney general is institutionally and systemically incapable of fairly administering the immigration court system. The immigration courts will almost certainly never work so long as the attorney general maintains unitary control. The best solution is thus to sever this executive control, transforming the immigration court system into a new Article I immigration court with trial and appellate divisions. Stakeholders and immigration court experts agree that an Article I immigration court is the best long-term solution to the system’s current failures.
Notably, there is precedent for moving adjudication systems out of individual agencies and into separate Article I courts as a solution for concerns about judicial independence. All three existing Article I courts—the United States Tax Court, the United States Court of Appeals for Veterans Claims, and the United States Court of Appeals for the Armed Forces—originated as components of executive agencies, and all were converted to Article I courts by Congress.
Ensure reform driven by guiding principles
To guarantee fair and impartial adjudication in the immigration court system, reform must be informed by the guiding principles of transparent, merits-based appointment of judges; tenure and protection from removal without cause; internal accountability mechanisms; and a functioning appellate system.
Although these reforms should be instituted through the formation of an Article I immigration court, immediate internal changes to the EOIR’s current structure could improve fairness and independence while the agency remains under the control of the attorney general. These guiding principles are described in detail below:
Transparent, merits-based appointment
Immigration judges should be selected through a transparent process with more rigorous criteria to ensure the creation of a high-quality judge corps that has deep knowledge of immigration law and is well-suited to adjudicate removal cases fairly.
Important qualifications should include legal expertise as well as cultural sensitivity, respect for all parties, judicial temperament, and extreme care when judging credibility, particularly of trauma survivors. To better guarantee that the political ideology of a candidate is not considered in the hiring process, political appointees should not have the final say in hiring decisions. Changes should also be made to the judicial recruitment process to decrease the overrepresentation of former DHS attorneys. Finally, the public should be informed about the appointment process through disclosure of the specific hiring criteria.
Tenure and protection from removal without cause
To further protect their independence and neutrality, immigration judges should enjoy some form of tenure and be removable only for good cause. In the absence of an Article I court, these objectives could be accomplished by making immigration judges into administrative law judges or adopting a similar model for their appointment and removal within DOJ.
The Constitution and the Administrative Procedure Act clearly recognize the importance of tenure guarantees in protecting judges’ ability to adjudicate fairly and impartially. For example, administrative law judges (ALJs) who adjudicate cases in many other federal agencies serve fixed terms and can be removed or disciplined only for “good cause” after an evidentiary hearing before the Merit Systems Protection Board.
These protections allow ALJs to adjudicate according to their professional judgment without fear of retaliation. At the same time, former immigration judge Paul Schmidt has pointed out that lack of lifetime tenure “should inspire people to be good judges so when reappointment time comes, there isn’t a problem. People who are rude or don’t know the law should be weeded out.” Providing greater job stability to immigration judges would also likely increase the stature of the position and attract more high-quality candidates.
Internal accountability mechanisms
In addition to implementing procedural reforms that help ensure a full and fair hearing for noncitizens in removal proceedings, the immigration court system needs transparent and robust mechanisms to foster public confidence and hold judges accountable for misconduct.
Although the EOIR has a system for filing and processing complaints against judges, attorneys report that the current structure is highly flawed. Despite serious critiques of the courts in which they practiced, very few attorneys in our focus groups had actually filed formal complaints against immigration judges. Practitioners cited not only a lack of time but also concerns that complaints were ineffective. Attorneys who had actually filed complaints echoed this sentiment, reporting that “nothing happened.”
Attorneys also expressed fear of retaliation by immigration judges, worrying that repercussions could be “disastrous.” Some attorneys reported that certain judges had engaged in a “witch hunt” to try to discover which attorneys had made anonymous complaints against them.
More effective accountability mechanisms are needed to ensure that misconduct is exposed and appropriately addressed. Immigration judges should also be regularly evaluated using judicial model performance reviews, rather than numerical performance metrics or the federal employee review system. Under this judicial model, performance evaluations of immigration judges would be publicly released and based on criteria like procedural fairness, demeanor, and knowledge.
Functioning appellate system
Effective appellate review of immigration judge decisions is crucial to help ensure fair outcomes at the trial level by correcting errors and elaborating clear legal standards for lower court judges. As former immigration judge and BIA member Paul Schmidt has explained, an independent system needs “a real appellate body that acts like an appellate court, not a rubberstamp for the Attorney General.”
To that end, all BIA decisions should be made by multimember panels and issued in the form of fully reasoned written opinions that address all material arguments. Further, like immigration judges, BIA members should be insulated from political pressure through a transparent merits-selection process and some form of tenure or for-cause removal.
The attorney general should not be empowered to rewrite immigration law for ideological ends through the certification process. These reforms would help create an appellate process that better serves to correct due process violations and promote consistent application of the law in immigration courtrooms.