His tweet also escalates previous Trump administration efforts to further weaken immigration courts and the judges who already persist in a structurally defective system. Trump is exacerbating an immigration court process that resembled loaded dice even before he arrived.
“We’re just disappointed to hear those types of comments because we feel that it represents a fundamental misunderstanding of the importance of the role of the immigration court and immigration judges,” said A. Ashley Tabaddor of Los Angeles, president of the National Association of Immigration Judges.
Her response to Trump provided a civics lesson he must have missed in junior high.
“Well, I would say that we are a country of laws. We respect the rule of law, and we are a democracy. And to the extent that we hold ourselves out as a beacon of hope and democracy it is important for everyone to be provided the due process that our Constitution guarantees for each person regardless of their citizenship status in the United States,” she said by telephone. “And we have commitments to the international community that our legislators have recognized and have made ours as part of our immigration law and that is a commitment to make sure that individuals who are fleeing for their lives and are asylum seekers and are refugees are provided their day in court.”
Immigration judges strive to make decisions based on facts, but they work in a system that suffers from the appearance of being stacked against immigrants.
Unlike most judges, those in immigration courts are not separate from the executive branch. The nation’s top prosecutor, Attorney General Jeff Sessions, an immigration hawk, is over the prosecutors and the judges.
That clear conflict of interest poses a serious threat to the court, Tabaddor warned in testimony to a Senate Judiciary subcommittee hearing in April.
“The inherent conflict present in pairing the law enforcement mission of the DOJ [Department of Justice] with the mission of a court of law that mandates independence from all other external pressures, including those of law enforcement priorities, has seriously compromised the very integrity of the Immigration Court system and may well lead to the virtual implosion of this vital court,” she said.
For example, Congress gave immigration judges the authority to hold lawyers in contempt in 1996. But no administration since then has issued regulations to implement that sanctions authority, because, Tabaddor said, officials don’t want their lawyers cited for contempt.
The Department of Homeland Security (DHS) also can “provide a one-sided veto of a judge’s decision,” she told the panel. While DHS “appears as a party before the Immigration Court,” Tabaddor explained the agency “can effectively vacate an Immigration Judge’s bond decision through automatic stay powers that override an immigration judge’s decision to set or reduce bond for certain individuals.”
That’s not the only hit on the integrity of immigration court decisions.
Sen. Richard J. Durbin (Ill.), ranking Democrat on the border security and immigration subcommittee, said “the attorney general has the authority and the power to remand an immigration court’s decision to himself if he disagrees with it. Attorney General Sessions has done this four times.”
This is a court with a serious backlog and too few judges. The case load grew from 129,000 cases in 1998 to more than 684,000 in February, according to Sen. John Cornyn (R-Tex.), the subcommittee chairman. “Aliens in removal proceedings sometimes wait for years before they ever appear before an immigration judge,” he added. “For example, as of February 2018, courts in Colorado had the longest time for cases sitting on their docket for more than 1,000 days, almost three years. In my home state of Texas, the current wait is 884 days almost two and a half years. These wait times are obviously unacceptable.”
There are 334 immigration judges, and Congress has approved funding for 484, according to Tabaddor, who said about 1,000 are needed.
While some problems have been around for years, she said “the Trump administration is taking all the bad ideas and putting them on steroids.”
The most flagrant example is the Trump administration’s decision to place quotas and deadlines on judges to evaluate their performance. Quotas and deadlines might make sense in some professions, but they can undermine a judge’s independence.
A judge denying a lawyer’s request for more time to prepare or question a witness could be accused of speeding a case to make a quota or deadline needed to maintain the judge’s employment. Tabaddor said that’s akin to judges having financial interests in cases they are deciding.
At the Senate hearing, more than two months before Trump’s tweet, Durbin was prescient.
“Now our immigration courts face their greatest challenge,” he warned, “a president and attorney general who is calling into question our founders’ promise that all persons in our country are entitled to due process under law.”