Dana Leigh Marks has been a sitting immigration judge in San Francisco since 1987 and is writing this in her capacity as president emerita of the National Association of Immigration Judges.
Every day, in 60 courts throughout the country, roughly 400 immigration judges sit to decide the fates of thousands of people. Our courtrooms can be almost anywhere: in Immigration and Customs Enforcement detention facilities, in federal courthouses or in leased commercial office spaces — like mine in the heart of the financial district in San Francisco. Walking by, you wouldn’t know what is going on inside.
What occurs in immigration courts is probably the most mysterious of all legal processes in our country. The reason: These are administrative courts, part of the Justice Department rather than the judicial branch. The rules we operate under are written by political appointees, not by judges, and often favor the government.
Our courts’ decisions are life-changing. We rule on whether a person is a U.S. citizen, whether a noncitizen can qualify for a status that allows him or her to remain in this country, or whether a person has violated our laws and must be forced to leave. Our decisions may cause the separation of parents and children or husbands and wives, because the law gives judges no discretion to allow someone to remain in our country based solely on hardship or humanitarian reasons. And, at times, the decisions can amount to a death sentence, such as when we deny an application for asylum because the law does not protect all those who find themselves in harm’s way back home.
Many Americans may be surprised to learn there is no such thing as “anchor babies,” because U.S. citizens must be over 21 years old to sponsor a parent; that marrying a U.S. citizen does not guarantee the spouse U.S. citizenship; or that there is no statute of limitations under our immigration laws, meaning long-term lawful residents can be deported for relatively minor convictions. And that’s true even if the crime occurred decades ago.
People in immigration court proceedings do not have the right to appointed counsel, even if they are minors. Forty percent of people in our courts cannot find lawyers to represent them, and almost all — about 85 percent — speak a language other than English , making self-representation an insurmountable task. The legal provisions that we apply have been compared to tax law in their complexity and can test even the most experienced attorneys.
The surge of asylum cases that starts at the border doesn’t stay at the border. Newly arrived families often get their cases transferred to where they planned to join family or friends. Sometimes that gives a family time to raise money to pay for a lawyer. When a family finally makes it to court, I usually send their kids outside so they don’t have to see their parents in an uncomfortable, emotionally charged setting, where they exhibit trauma and fear about returning to their homeland. Frequently, I have just a couple of hours to hear a case and to decide their fate: Can they stay, or do they have to leave?
Many of the flaws in our operations stem from the fact that we are administrative courts located within a law enforcement agency, so crucial decisions are made by officials with little or no experience as judges. It is time to change that.
The volume of work can be overwhelming. Some of our judges carry caseloads of 5,000 cases or more, usually with limited support staff. Because we work for the Justice Department, we are directed how to arrange our dockets and micromanaged about how much time we spend on cases. Beginning in October of last year, judges were ordered to complete 700 cases each year or risk a less-than-satisfactory performance evaluation, which can cost a judge his or her job. This is not how a court should be run. Attorney General William P. Barr told Congress this week that he is hoping to boost the number of judges in our courtrooms from around 425 to 535 over the next few years and for a commensurate boost in lawyers and clerks. We desperately need the help.
But more than that, we need to be free to be independent judges, not be monitored and rated like assembly-line workers. We must be allowed to use our expertise to decide our cases without interference. The current structure detracts from due process and makes people doubt the fairness of the courts we preside over. We need skilled, experienced, neutral managers who understand how to run a court and make transparency, independence and public access paramount — not administrators who want to keep the trains running on time above all else.
A number of lawyers’ organizations and scholars agree, and endorse the creation of an Article I Immigration Court. It would free our courts from the political influences of both the Justice and Homeland Security departments and the political whims of each new administration. It would allow a reliable funding stream from Congress to assure we have the resources needed to address our burgeoning caseload in a timely manner. It would mean that neutral judges would use their skills to make the rules and assure a level playing field for all. An independent immigration court will be an efficient and effective court that provides an example to the world of the superiority of the American justice system. We can and must fix this fatal flaw now.