The Trump administration will pressure U.S. immigration judges to process cases faster by establishing a quota system tied to their annual performance reviews, according to new Justice Department directives.
The judges will be expected to clear at least 700 cases a year to receive a “satisfactory” performance rating, a standard that their union called an “unprecedented” step that risks undermining judicial independence and opens the courts to potential challenges.
Now, immigration courts operate under the executive branch (part of the Executive Office for Immigration Review within the Justice Department), not as part of the judiciary branch under Article III of the Constitution. Moreover, due process rights guaranteed in federal and state courts do not necessarily apply in immigration courts. Nevertheless, the Trump administration’s move raised immediate concerns. Laura Lynch, senior policy counsel for the American Immigration Lawyers Association, tells me, “The Executive Office for Immigration Review (EOIR) is particularly vulnerable to political pressure because it is a component of the Department of Justice (DOJ).” She points out that immigration judges, who are appointed by the attorney general and are Justice Department employees, “have struggled to maintain independence in their decision-making.” She explains, “They do not enjoy many of the protections of Article III federal judges, such as life-tenure. Immigration judges have no fixed term of office and can be fired by the Attorney General or be relocated to another court. EOIR’s plan to impose numerical case completion quotas in performance evaluations severely jeopardizes an immigration judge’s ability to remain independent and impartial.”
Other immigration litigators agree, as The Post reported:
Judge A. Ashley Tabaddor, president of the National Association of Immigration Judges, said the quota system could introduce an “appealable” issue and invite legal challenges.
“It could call into question the integrity and impartiality of the court if a judge’s decision is influenced by factors outside the facts of the case, or if motions are denied out of a judge’s concern about keeping his or her job,” Tabaddor said.
“We don’t know of any other court whose judges are subject to individual quotas and deadlines as part of performance reviews and evaluations,” she said.
The notion that “justice” can be regulated by a stopwatch is contrary to basic notions of fairness. “Quotas for immigration cases are a perversion of justice,” says former federal prosecutor Joyce White Vance. “These decisions impact people’s lives and forcing judges to ram them through at assembly-line speeds means mistakes will happen, that cannot be corrected. That’s unacceptable in our justice system.”
Constitutional scholar Laurence Tribe concurs. He tells Right Turn, “This is a shameful and cruelly inhumane effort to impose an assembly-line mentality on the already too-perfunctory deportation proceedings to which our nation has long subjected people, including children, who are identified for expulsion from our country.” He continues: “During my time as head of the Access to Justice Office of the Justice Department in the Obama administration, I found a pressing and perennially unmet need for enhanced fairness and accuracy in how we handle deportation, including a huge need for more thoughtful and careful immigration judges, and for more and better legal assistance to unaccompanied children in particular — but no need at all for pressuring our overworked cadre of immigration judges to process cases with even greater alacrity.” He concludes, “This administration’s push to do so is a push in exactly the wrong direction and is a thinly disguised effort to exclude and expel more of the people the masters of Trumplandia deem undesirable and least capable of resisting.”
Moreover, this latest attempt to put judges under the thumb of the administration comes in the context of 15 months of hostility toward judges and attacks on the nonpartisan administration of justice (e.g., U.S. attorneys, the FBI). Ian Bassin, executive director of Protect Democracy, a nonprofit group that litigates executive-branch overreach, tells me, “Trump likes to talk about due process when it involves himself and his friends. But due process matters most to the least powerful and most marginalized communities in our country.” He continues, “Like Trump’s attacks on independent law enforcement and the federal judiciary, this action is yet another sign of an Administration that, when it comes to due process, just can’t seem to remember the golden rule.” (His group has a handy tracker of President Trump’s attacks on the courts.)
The move to impose quotas also comes in the midst of another round of Trump’s attacks on the Deferred Action for Childhood Arrivals (DACA) program, his suggestion that the wall could be paid for by the Defense Department (!), his ongoing battle with California over its protections for undocumented immigrants, and his unsuccessful attempts to impose a Muslim ban and claw back funds from municipalities (so-called sanctuary cities) that he deems to be insufficiently unwilling to enlist in the administration’s deportation schemes. Trump’s obvious anti-immigrant bias in one arena (e.g. the Muslim ban) tends to suggest that other actions (e.g. bullying cities into shifting priorities away from fighting crime to immigration enforcement) are born of the same anti-immigrant sentiment and his desperate effort to keep his shrinking base happy.
Once again, we see that Trump’s political crutch is nearly always associated with his anti-immigrant message. Fear and resentment toward outsiders seem to be what’s at the heart of his presidency. That, and assaults on the press and the courts, of course.