Immigration Judges Want to Break Free from the Justice Department

Judges warn of retirement ‘tsunami’ if changes aren't made, cite record backlog amid border crisis.

This summer’s influx of Central American children across the U.S. Southwest border has not only created a record backlog in immigration courts, it has thrown into relief a need to sever those courts from supervision by the Justice and Homeland Security departments.

That’s the view of two immigration judges who took the unusual step of appearing in public Wednesday at the National Press Club, stressing that they were speaking not as federally employed judges but as top officers in the National Association of Immigration Judges.

“Immigration courts are the forgotten stepchild of the Justice Department,” said Dana Leigh Marks, a federal administrative judge in San Francisco who is president of the judges union. “Being housed in a law enforcement agency puts us at the mercy of political winds, and our resources have been starved for decades,” she said, adding that immigration courts receive only 1.7 percent of the $18 billion immigration law enforcement budget. “The border crisis is not a pretty picture despite all our accomplishments. Strains are showing and morale of courts is at an all-time low.”

The current case backlog of 375,000 is a record, Marks said, leaving the 227 immigration court field judges with an average of 1,500 pending cases each, though the workload is not spread evenly. She added that she has a load of 2,400 pending cases, most of which involve waits of 15 months before the respondents receive their first arraignment, and 3.5 to four years before their case is heard on the merits.

Denise Noonan Slavin, an administrative judge who hears cases in a Miami federal detention center and who is vice president of the judge’s union, said the delays in cases leave “in limbo many people who’ve obtained legal status and are productive members of society.” The Obama administration erred, she said, when it recently set children’s cases as a higher priority than longer-pending adult ones. “No other court would flip the docket on its head,” Slavin said. “It makes sense to hear the parents’ case first, and you get better outcomes hearing them case by case. Judicial proceedings are not an amusement park where you get a fast pass.”

Slavin described problems stemming from her role as an administrative judge and an attorney for the government—“a conflict inherent in serving two masters,” she said. The Justice Department, she said, has never written regulations to give immigration judges authority to hold private attorneys in contempt, despite Congress having required it. Nor are she and her peers privy to the “ex parte” communications among private attorneys and the Justice and Homeland Security officials, which can lead to a judge being suspended. As supervisor of the judges, Justice “has also empowered itself to make the call” on when a judge should be recused due to a possible personal conflict, Slavin said, a decision that in her view is often arbitrary.

“The brother-sister relationship between DHS and Justice, has a chilling effect on immigration judges” who fear those departments will file complaints against them, Slavin said.

Immigration courts are a “through-the-looking-glass world where normal laws basic to everyday events don’t apply,” Marks said. There are no Miranda warnings, which leaves clients—who have the burden of proof--without rights to an attorney unless they can pay for one or recruit a volunteer. Hearsay evidence is allowed, though it is ascribed less weight than other evidence. There are no court reporters, only digital audio tapings, she said. There also no bailiffs, and most respondents require interpreters—with up to 260 different languages potentially needed. Many cases “are death penalty cases,” she added, noting that refugees may face persecution if they return to their home country.

“Many of these people have long been in our country as permanent residents and have petty theft convictions as a minor decades earlier,” Marks added. “Even if they are now well-regarded pillars of the community, I have no discretion as a judge” to allow them to stay.

The National Association of Immigration Judges for years has been pushing for Congress to separate the judges from the Justice Department with legislation based on separation of powers in Article 1 of the Constitution. “The time is right for an immigration reform [effort] that could win support from everyone across the political spectrum,” Marks said. Independence would reduce class action suits, provide more accountability in outcomes and save money by not clogging up appeals courts, according to the judges. They say their proposal is backed by the American Bar Association, the Federal Bar Association, the American Immigration Lawyers Association, the National Association of Women Judges and the American Judicature Society.

When a similar proposal emerged in the Senate in June 2013, a spokeswoman for the Justice Department’s Executive Office for Immigration Review told the Boston Globe  that costs were the chief obstacle. “The type of civil administrative adjudications that the Executive Office for Immigration Review conducts are designed to be handled within the structure of the department and it would take significant resources to create an agency separate from an executive branch Cabinet officer, which we believe to be unnecessary at this time.”

On Wednesday the immigration judges speculated that another reason Justice is cool to their idea is that it wouldn’t speak well for their “less than stellar administration” of the immigration courts. Both noted constant problems with under-resourced and outdated computer systems that deny the public needed transparency on the status of pending cases.

“The solution won’t be quick or cheap, but we must stand on our own and not be overshadowed in the judicial process,” Marks said. History has told us to expect surges—think of Cuba, Haiti, China—and we should be independent of both prosecutors and the respondents who come before us.”

If no changes are made, Marks added, the country should expect “a tsunami of retirements from an extremely stressful job.”

(Image via sergign/