White House continues to strip due process from immigration courts

Arguably no previous administration has been more hostile to the judiciary than the Trump administration. The president himself has aggressively criticized courts that have ruled against him, sometimes resorting to personal attacks calling specific judges “political,” “ridiculous,” “so-called” judges, even referencing a federal judge’s Mexican heritage.

In addition to the president’s own comments, his administration is apparently implementing a systematic plan to dramatically undermine judicial independence and due process in immigration cases. At a Nov. 1 hearing on the immigration courts, ranking Democrat John Conyers said new administration plans will turn the courts into “a forced march toward deportation.”

{mosads}The White House immigration principles call for measures that will “ensure swift return of illegal border crossers” where “swift” appears to be a code word for eliminating the Constitution’s fundamental guarantee of due process. Attorney General Sessions has claimed that fraudulent asylum seekers are flooding the courts, but in fact, less than one out of five people who are removed ever get a fair day in court. The vast majority of people are removed singlehandedly by an immigration officer without any court review. Unable to make their case in court, asylum seekers, including children, have been wrongfully deported back to life-threatening dangers.

If the administration were committed to fairness, it would strengthen the courts and cut back on the use of summary removal procedures that bypass them, like expedited removal. Instead, the administration intends to do just the opposite.

On February 20, 2017, the Department of Homeland Security announced plans to greatly expand the use of expedited removal to the entire region of the United States and to include people who have lived here up to two years. By itself this tactic will mean the rapid deportation of many more people, irrespective of family or other ties to our country, without any chance to appear before a judge for a full hearing. Mass deportations on a summary basis is not the ideal of justice envisioned by America’s Founders.

The administration also plans to rush cases through the courts by forcing judges to rule under tight deadlines that are tied to individual performance evaluations, a move that immigration judges oppose as a “death knell for judicial independence.” Immigration judges are among the hardest working judicial figures in our country with caseloads far exceeding one thousand per judge. Putting them on a timeclock will force them to conduct cursory reviews, limit the time for respondents to present evidence, and lead to the denial of valid requests for continuances.

In Hashmi v. Attorney General of U.S., the Third Circuit Court of Appeals found that an immigration judge abused his discretion in denying a continuance request by a Pakistani man, Mr. Hashmi, because the case had been pending longer than the eight-month case completion guideline.  

If the judge in that case felt enough pressure to deny a legitimate continuance from a general “guideline,” the current plan to link case completion quotas to judge’s performance reviews will have far more damaging results. The denial of relief following a cursory review of the evidence, or refusal to grant a continuance could mean the difference between life and death, such as in the case of an asylum seeker who fears return to violence and persecution. Mr. Hashmi would have been deported to Pakistan and barred from returning to be with his American wife for 10 years.

The complex judicial process cannot be reduced to an assembly line, and our Constitution’s guarantee of due process will never be upheld if a judge’s job security is based on strict quantitative measures.

Immigration courts desperately need a complete overhaul that safeguards the independence of judges. Among other things, one of the most serious flaws in the immigration court system is its failure to ensure that every person facing removal is guaranteed legal counsel. Until a comprehensive counsel program is created, existing legal orientation and access to counsel programs should be expanded. Our nation’s leaders must act on these needed reforms to ensure the proper functioning of our court system consistent with the most important principles in our Constitution.

Gregory Chen is the director of Government Relations at the American Immigration Lawyers Association (AILA).