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A History of Politicized Hiring in Immigration Courts

The Trump administration is not the first administration that has abused its power by injecting political priorities into the selection process for immigration judges and BIA members. 

The history of political hirings and firings under the Bush administration highlights the opportunity that the attorney general’s broad powers of appointment, removal, and reassignment create for political manipulation and weaponization.

In 2008, a Department of Justice investigation found that various Bush-era DOJ officials “violated Department policy and federal law by considering political or ideological affiliations in selecting candidates for the BIA.” This politicized hiring process was in place for nearly three years, from the spring of 2004 until a lawsuit over discriminatory hiring practices led to the suspension of immigration judge appointments in December 2006.

This wave of politicized hiring was immediately preceded by a period of “selective downsizing,” in which then-Attorney General John Ashcroft used his authority over personnel to remove BIA members whose decisions were most favorable to noncitizens. Ashcroft’s firing of the more immigrant-friendly board members had no basis in the general criteria announced in his downsizing plan and appeared to many observers to be politically motivated.

Indeed, Ashcroft’s actions led to a greater backlog of cases at the board, and had a “severely chilling effect” on the BIA’s decision-making, as board members were pressured to align their decisions with the attorney general’s priorities or potentially face removal from their posts.

While the Trump administration’s weaponization of politicized hiring may have reached a new level, this legacy of politicized appointments reveals the EOIR’s vulnerability to manipulation for political ends.