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DOJ Immigration Judges Look to Break Away From Agency

April 23, 2019, 7:54 PM

A union that represents about 420 federal immigration judges is lobbying Congress to pass legislation making the judges independent from the Department of Justice.

“When we talk about judges and courts, people have certain assumptions,” Ashley Tabaddor, president of the National Association of Immigration Judges, said April 23. “They expect to have a judge who’s impartial and a court that’s independent. Immigration courts and judges are not like that.”

The judges instead answer to the head of the DOJ, Attorney General William Barr. That’s inappropriate for immigration judges who oversee “adversarial proceedings” similar to those overseen by judiciary branch judges, Tabaddor said. The policies have led to “integrity issues” and contributed to a backlog of about 850,000 immigration cases, she said.

Immigration judges deal with “potentially sensitive foreign relations issues” and that’s a matter for the executive branch, said James McHenry, director of the DOJ’s Executive Office for Immigration Review. “The U.S. Supreme Court and the appeals courts have recognized this” in numerous rulings, McHenry said.

There are “tens of thousands of administrative judges” at federal agencies who issue rulings on a variety of issues, McHenry added. There’s no reason for treating immigration judges differently than the others, he said.

‘Solution in Search of a Problem’

Establishing an independent agency for immigration judges is “a solution in search of a problem,” said Andrew Arthur, a former immigration judge who’s now a resident fellow with the Washington-based Center for Immigration Studies.

“Many administrative tribunals exist in executive branch agencies” and since the attorney general is responsible for U.S. immigration policy, it’s appropriate that the Executive Office for Immigration Review is housed within the DOJ, Arthur said.

Federal appeals courts also can review decisions from the DOJ’s Board of Immigration Appeals, which hears appeals of immigration judges’ rulings, Arthur said. Appeals court review of DOJ policies is another way that perceived problems with judicial independence or due process can be addressed, he said.

Case Quotas, Reassignment

Case quotas imposed by the DOJ last spring that require each judge to close 700 cases per year is an example of inappropriate meddling by the department in issues that should be left to judges’ discretion, Tabaddor said. The union has asked whether the department is making allowances for the 35-day partial government shutdown that ended Jan. 25, but hasn’t had a response other than that the issue will be discussed when the judges are evaluated on their job performance, she said.

The need for judicial independence also is exemplified by the case of Steven Morley, whose caseload was reassigned after he indefinitely suspended proceedings in an immigration case. The union filed a grievance against the DOJ that said the department interfered with matters that should have been left to Morley’s discretion, but ultimately decided against pursuing arbitration for “internal reasons,” Tabaddor said.

The remedy is for Congress to pass legislation that would move immigration judges from the DOJ to an independent judicial or executive branch agency, Tabaddor said. The NAIJ, an AFL-CIO affiliate, has endorsed draft legislation from the Federal Bar Association that would move the judges to the judicial branch, but it’s open to other approaches, she said.

Legislation (S. 663) from Sen. Mazie Hirono (D-Hawaii) that would give the judges increased protections against politically motivated actions is a short-term solution, Tabaddor said. The bill is “a Band-Aid while we educate Congress” on the need for an independent agency, she said.

To contact the reporter on this story: Louis C. LaBrecque in Washington at llabrecque@bloomberglaw.com

To contact the editors responsible for this story: Martha Mueller Neff at mmuellerneff@bloomberglaw.com; Cathleen O'Connor Schoultz at cschoultz@bloomberglaw.com