The State of Judicial Independence & Due Process in U.S. Immigration Courts: Written Testimony

SUMMARY

The Immigration and Nationality Law Committee and the Task Force on the Independence of Judges and Lawyers submitted testimony to the House of Representatives for a hearing centered on due process issues in immigration court. For the past three years, the City Bar has called attention to the crisis brewing in immigration courts, brought on by, among other things, the implementation of judicial performance quotas, decreased judicial control over dockets and case management, and continuing efforts to decertify the immigration judges’ union which would, in effect silence the one organization that can represent the voices of judges who express concerns about due process. Citing to the extremely significant decisions being made by immigration judges, the City Bar, among other bar associations, argues that the immigration court system must be independent — and “not part of the Department of Justice, where it can be vulnerable to politicization as part of the executive branch.” The City Bar urges the House to “continue to monitor the crisis in the courts, to restore sensible docket management tools to judges, to remove performance quotas, and, ultimately, to pass legislation which would make the immigration courts truly independent.”

REPORT

WRITTEN TESTIMONY RESPECTFULLY SUBMITTED BY
THE IMMIGRATION AND NATIONALITY LAW COMMITTEE[1] AND
THE TASK FORCE FOR THE INDEPENDENCE OF LAWYERS AND JUDGES^[2]

HOUSE COMMITTEE ON THE JUDICIARY
SUBCOMMITTEE ON IMMIGRATION AND CITIZENSHIP

JANUARY 29, 2020
2141 RAYBURN HOUSE OFFICE BUILDING  

COURTS IN CRISIS:  THE STATE OF JUDICIAL INDEPENDENCE AND DUE PROCESS IN U.S. IMMIGRATION COURTS

The New York City Bar Association (City Bar) is pleased to provide this written testimony urging the House to address the crisis in the U.S. immigration courts. The City Bar, with over 24,000 members, has a longstanding mission to equip and mobilize the legal profession to practice with excellence, promote reform of the law, and advocate for access to justice. In furtherance of that mission, we have consistently advocated for access to counsel and for fundamental due process rights in adjudications. The City Bar has expressed its growing concerns over the past three years through reports and op-eds critical of changes to immigration court processes that have undermined due process. We would like to submit these reports for the record of these proceedings.

On April 18, 2018, the City Bar submitted testimony to the U.S. Senate in a hearing similar to today’s hearing, titled, Strengthening & Reforming America’s Immigration Court System.^[3] In that testimony, we raised concerns about judicial performance quotas; decreasing access to counsel; and procedural changes in immigration court that stripped immigration judges of the ability to control their own dockets. Since the date of that hearing, almost two years ago, the state of the immigration courts has only gotten worse as immigration has become an increasingly polarizing political issue.

On April 4, 2018, the City Bar president and Chair of the Immigration and Nationality Law Committee spoke out against judicial performance quotas, publishing a piece on the topic in the New York Law Journal.[4] In the piece the City Bar expressed concern that tying individual judges’ performance evaluations to case completion goals creates an incentive for judges to deny meritorious cases or rush them along without giving litigants adequate time to develop the record in their proceedings. The following week, the City Bar released a report decrying the judicial performance quotas, calling them “neither efficient nor just.”[5]

Since then, the pressure on immigration judges has only increased. The National Association of Immigration Judges has been a powerful voice against changes to immigration court processes that restrict the independence of judges. Following the association’s critiques of new policies restricting their independence, the Department of Justice has sought to decertify the union. Since judges are not permitted to speak about court-related matters in their own capacity, decertifying the union would essentially silence the one organization that can represent the perspectives of immigration judges concerning changes to court processes. On September 30, 2019, the City Bar President and Chair of the Immigration and Nationality Law Committee wrote an op-ed on the issue in the New York Law Journal, pointing out the stakes for immigration court litigants in the decertification case if the critical voices of judges are not represented.[6]

In October 2019, the Department of Justice issued an interim final regulation that changed the structure of the Executive Office for Immigration Review (EOIR). The City Bar submitted comments opposing this rule on October 23, 2019,[7] raising concerns that, for the first time, EOIR was establishing an Office of Policy within the adjudications branch, seemingly politicizing EOIR whose primary function should be case-by-case adjudications in removal proceedings. Additionally, the City Bar expressed concern that EOIR was eliminating the Office of Legal Access Programs and moving its functions, including expanding access to counsel for noncitizens, within the new Office of Policy.

The City Bar believes that every noncitizen deserves due process and a fair immigration court hearing. The backlog of immigration court cases now exceeds one million,[8] meaning that many noncitizens have to wait years for a hearing, during which time they are often living in uncertainty and separated from family members. The answer to this crisis is not to impose quotas or to take measures that will curtail the voices of judges who express concern about due process. Instead, the immigration court system should be truly independent, and not part of the Department of Justice, where it can be vulnerable to politicization as part of the executive branch.

For many noncitizens, the decision the immigration judge makes will determine whether or not the person is sent back to a country where they fear harm or whether they are separated from family members. Immigration courts adjudicate decisions of extraordinary significance. The City Bar urges the House to continue to monitor the crisis in the courts, to restore sensible docket management tools to judges, to remove performance quotas, and, ultimately, to pass legislation which would make the immigration courts truly independent.

Thank you for your consideration.

Respectfully submitted,

Immigration and Nationality Law Committee
Victoria Neilson, Chair

Task Force on the Independence of Lawyers and Judges
Christopher Pioch, Co-Chair
Jessenia Vazcones-Yagual, Co-Chair