“The only durable solution is to get the court away from the Justice Department,” Ashley Tabaddor, a Los Angeles immigration judge and the association’s president, said in a speech at the National Press Club in Washington. “Let it be a real court. Let it be real judges, so that we can do what we’re supposed to do.”
Unlike the judicial branch, the 61 federal immigration courts fall under the executive branch and report to the attorney general.
The immigration judges’ association has urged Congress for years to make immigration an independent court similar to the U.S. Tax Court. This year, the union endorsed a proposal to create a new system of immigration appeals and trial-level judges. The appeals judges would be named by the president and confirmed by the Senate. The appellate judges would then name the trial-level judges.
Immigration judges say a shift is urgently needed now because Trump administration officials — some of whom are vocal critics of illegal immigration — are undermining judicial independence and immigrants’ rights to a fair hearing.
In August, the union filed a grievance after a Philadelphia immigration judge said his supervisor removed him from dozens of deportation cases after he questioned whether a defendant was given fair notice of a hearing.
Besides the quotas, Sessions also has limited judges’ power to postpone or terminate cases, which could give immigrants extra time to find a lawyer, gather evidence or find another way to apply for legal residency.
In June, the attorney general also narrowed judges’ authority to grant asylum by vacating a decision by the Board of Immigration Appeals. He said victims of “private” crimes such as domestic abuse and gang violence in their countries of origin generally will not qualify for asylum.
The Trump administration said Friday that it “has been clear that the proper home for the immigration court system is with the [Justice] Department.”
A Justice Department spokesman, who spoke on the condition of anonymity, said the administration is seeking to slash the 740,000 case backlog in half by 2020 “with collaboration — not obstruction and intentional undermining — from the immigration judge union.”
This month, Sessions told new judges that they must be fair and follow the law, but also meet his goals.
“I do not apologize for expecting you to perform, at a high level, efficiently and effectively,” Sessions told the new judges on Sept. 10, according to a written copy of his remarks. “Cases must be moved to conclusion.”
By the end of this month, the courts will have 395 immigration judges, the highest number in the agency’s history and an increase of more than 30 percent since President Trump took office. Sessions said he plans to increase the number of judges by 50 percent by the end of the year.
Officials have said the judges already complete 678 cases in an average year, and some clear more than 1,000, so the quota will not mark a significant shift.
But Tabaddor, a former federal trial attorney who was appointed by President George W. Bush, worried that new judges who are on probation and have minimal job protections will feel pressured to close cases quickly.
She said that immigration judges’ workloads vary widely and that cases involve complexities unrivaled in other courts. Some have thousands of cases each, with particularly high numbers in Baltimore and the Northeast.
Last year, about 40 percent of immigrants — and 8 in 10 of detainees — did not have an attorney, Tabaddor said. Judges hear most of their cases through interpreters, and many cases involve “life and death” stakes, she said, because immigrants face expulsion to some of the world’s most dangerous countries.
Judges have also complained that multiple administrations, including Trump’s, have poured money into ramping up immigration arrests without giving the courts enough funding to keep up with the caseload. Cases can drag on for years.
Tabaddor previously sued the Obama administration for allegedly ordering her not to hear cases involving people from Iran. In 2015, the department reversed its order and paid her $200,000.
The American Immigration Lawyers Association and dozens of legal scholars have supported the plan to create an “Article 1 court” and expressed concern that the attorney general is increasingly assigning precedent-setting cases to himself to exert more control over the immigration system.