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Case Completion Quotas for Immigration Judges Will Erode Fundamental Rights (New York Law Journal)

Recent news has been filled with reports of the Trump administration’s hard line on immigration, including news that a DACA deal is “dead” and that the National Guard will be sent to the border. Meanwhile, the administration is also taking quieter steps to reshape our immigration courts and upend due process rights for immigrants.

On March 30, the director of the immigration courts, James McHenry, sent a memorandum to all immigration judges requiring them to meet annual case completion quotas; failure to do so will affect their annual performance reviews. Under the guidelines—mandating that each judge complete 700 cases annually—each judge would have to hear testimony and render decisions in almost three cases per day, five days per week, 52 weeks per year. Even before these quotas were announced, the former president of the National Association of Immigration Judges, Dana Leigh Marks, had criticized the inadequate protections in immigration court, calling them “death penalty cases heard in traffic court settings.”

Despite the enormously high stakes in cases heard in immigration court, they are not Article 3 courts. The immigration courts are administrative and fall within the Executive Branch, specifically the Department of Justice, meaning that the judges ultimately answer to the attorney general. In this role, the attorney general wields enormous power as he can single-handedly issue precedential decisions to guide the Board of Immigration Appeals and all immigration judges. This performance quota memorandum comes shortly after U.S. Attorney General Jeff Sessions has certified decisions to himself in which he will answer broad questions about procedural and substantive rights in immigration court.

Through his self-certified cases, the attorney general has questioned whether judges can ever mark cases off-calendarwhether they should adjourn cases when an immigrant has an application for permanent relief pending with U.S. Citizenship and Immigration Services (or go forward and remove the immigrant whose application has not yet been approved), has vacated a precedential Board of Immigration Appeals decision requiring immigration judges to hear testimony in all asylum cases, and will decide a case which may limit asylum protections where the immigrant is harmed by private actors.

Taken together, it is clear that the administration is seeking to speed up immigration proceedings at the expense of basic due process rights and U.S. obligations under international law. Immigration law is one of the most complex practice areas. In December 2017, the New York City Bar Association issued a report calling on the federal government to not implement a quota system for immigration judges. As the U.S. Supreme Court recognized in Kentucky v. Padilla, “the severity of deportation” which is “the equivalent of banishment or exile” calls for due process protections. What the attorney general calls “efficiency” can never be a substitute for fundamental rights.

John S. Kiernan is president of the New York City Bar Association. Victoria Neilson is chair of the immigration and nationality law committee of the New York City Bar Association.

This piece was originally publish in the New York Law Journal on April 4, 2018.