The past two decades have seen an explosion in immigrant incarceration. Many thousand live in fear of being jailed or deported, torn from communities across the country. Central to this system of incarceration and deportation are the immigration courts where immigration police, immigration prosecutors and immigration judges work together to achieve the President’s anti-immigrant agenda. Shockingly, the immigration judges work for the nation’s chief prosecutor.
This system was never fair. But the Trump administration has openly and proudly weaponized it against immigrants of color at a level never before seen.
We sued to challenge the weaponization of the immigration courts
The Southern Poverty Law Center, Innovation Law Lab, Las Americas Immigrant Advocacy Center, Asylum Seeker Advocacy Project, Catholic Legal Immigration Network, Inc. and Santa Fe Dreamers Project, with the pro bono assistance of Perkins Coie, have filed a federal lawsuit challenging the weaponization of the nation’s immigration court system to serve the Trump administration’s anti-immigrant agenda.
“Under the leadership of President Trump and the attorney general, the immigration court system has become fixated on the goal of producing deportations, not adjudications,” said Stephen Manning, executive director of Innovation Law Lab. “The system is riddled with policies that undermine the work of legal service providers and set asylum seekers up to lose without a fair hearing of their case.”
The complaint outlines pervasive dysfunction and bias within the immigration court system, including:
- Areas that have become known as “asylum-free zones,” where virtually no asylum claims have been granted for the past several years.
- The nationwide backlog of pending immigration cases, which has now surpassed 1 million — meaning that thousands of asylum seekers must wait three or four years for a court date.
- The Enforcement Metrics Policy, implemented last year, which gives judges a personal financial stake in every case they decide and pushes them to deny more cases more quickly.
- The “family unit” court docket, which stigmatizes the cases of recently arrived families and rushes their court dates, leaving them without enough time to find an attorney and prepare for their hearings.
“The immigration courts make life-and-death decisions every day for vulnerable people seeking asylum – people who depend on a functioning court system to protect them from persecution, torture, and death,” said Melissa Crow, senior supervising attorney with the Southern Poverty Law Center’s Immigrant Justice Project. “While prior administrations have turned a blind eye to the dysfunction, the Trump administration has actively weaponized the courts, with devastating results for asylum seekers and the organizations that represent them.”
“As the political rhetoric surrounding immigrants has become sharper, we’ve noticed a decline in the treatment our clients receive in immigration court,” said Linda Corchado, Director of Legal Services, Las Americas Immigrant Advocacy Center. “While asylum seekers are entitled to a full and fair hearing, their proceedings are too often rushed, and judges deny our requests for time to properly prepare their cases and collect and translate crucial evidence from across the world.”
Because our immigration court system is under the control of a political branch, it is dysfunctional by design and fails to provide a fair or impartial forum for the adjudication of fundamental rights.
Under the leadership of President Trump, the immigration courts have become a deportation machine where applicants for asylum are supposed to lose. As Law Lab and SPLC revealed in our June 2019 report, the immigration court system is riddled with bias, dysfunction, and unlawful policies that violate due process and aim to produce deportations, not to provide fair adjudication.
People fleeing persecution should have a fair chance to seek relief in a court that recognizes the reality of today’s world. Our asylum system should be independent of the detention and deportation industry. Only by removing the immigration courts from the dangerous control of the executive branch can the immigration and asylum system be fair.
Create An Independent Immigration Court
The immigration courts will never be fair as long as the attorney general maintains unilateral control over them. The best solution would remove them from the executive’s control, transforming the immigration court system into a new Article I court system, within the purview of Congress, with trial and appellate divisions.
- Immigration judges should be selected through a transparent process with more rigorous criteria to ensure the creation of a high-quality judge corps that has deep knowledge of immigration law and is well-suited to adjudicate removal cases fairly.
- Immigration judges should enjoy some form of tenure and be removable only for good cause. In the absence of an Article I court, these objectives could be accomplished by making immigration judges into administrative law judges or adopting a similar model for their appointment and removal within DOJ.
- The immigration court system needs transparent and robust mechanisms to foster public confidence and hold judges accountable for misconduct.
- As former immigration judge and BIA member Paul Schmidt has explained, “a real appellate body…acts like an appellate court, not a rubberstamp for the Attorney General.” All appellate decisions should be made by multimember panels and issued in the form of fully reasoned written opinions that address all material arguments. Further, like immigration judges, immigration appeals judges should be insulated from political pressure through a transparent merits-selection process and some form of tenure or for-cause removal.