Judges say immigration court system has "effectively been dismantled."
The Trump administration implemented a policy change Monday to enable the head of immigration courts to overrule judges on cases, causing an uproar among career employees who said their independence will now be usurped by a political appointee.
Currently, the attorney general has the authority to override decisions issued by career immigration judges in the Justice Department’s Executive Office for Immigration Review after they are appealed to a central board. An interim rule, which the department issued on Friday and took effect Monday, will delegate that responsibility to the EOIR director. The director, who is appointed by the attorney general but not confirmed by the Senate, can now issue decisions on cases pending before the appeals board that “have not been timely resolved in order to allow more practical flexibility in efficiently deciding appeals.” The rule also formalized a recently created Office of Policy and placed it under the director’s authority.
Court stakeholders, including the judges themselves, were quick to condemn the change, saying it would undermine the entire court system.
“The impact of this regulation is to substitute the policy directives of a single political appointee over the legal analysis of non-political, independent adjudicators,” said Ashley Tabaddor, a California-based judge and president of the National Association of Immigration Judges. She added that turning the EOIR director into a “mini-attorney general” would tear down the current barriers between the Justice Department’s obligations as a law enforcement entity and its “adjudicatory responsibilities.”
“By collapsing the policymaking role with the adjudication role into a single individual, the director of EOIR, an unconfirmed political appointee, the immigration court system has effectively been dismantled,” Tabaddor said.
The Justice Department objected to that description of the EOIR director, saying that while the individual is appointed directly by the attorney general, the decision is made based on merit.
Kate Voigt, associate director of government relations at the American Immigration Lawyers Association, said the addition to the EOIR director's portfolio is problematic and "far outside the position's current duties."
"Because the director of EOIR reports to the attorney general, the director is likely to feel more beholden to the attorney general’s political whims than to making sound, just legal decisions," Voigt said. "I am deeply concerned that allowing the director of EOIR to decide appeals cases directly will further undermine the independence of our judges and politicize our courts."
The Justice Department said the rule was simply resolving discrepancies between existing policies limiting the EOIR director’s power and newer rules that have expanded it. It added the attorney general is generally too busy to weigh in on cases in which EOIR’s appeals board does not meet its deadlines.
“Due to his numerous other responsibilities and obligations, the attorney general is not in a position to adjudicate any [Board of Immigration Appeals] appeal simply because it has exceeded its time limit for adjudication,” the department said in its rule. Because the EOIR director already oversees the appeals board’s chairman, Justice added, the director “is in a better position to address cases that cannot be completed in a timely fashion by the BIA.”
"It is evident from the text of the regulation that these changes do not interfere with the core functions of the Board of Immigration Appeals," said Sarah Sutton, a department spokesperson.
The move follows the department’s action earlier this month to decertify the immigration judge’s union. Justice suggested the judges were management officials and therefore ineligible for collective bargaining, an argument the department unsuccessfully pursued in 2000. The judges and the Trump administration have frequently clashed, and the union has for years pushed for independence from the Justice Department altogether.
Both Attorney General William Barr and his predecessor Jeff Sessions—as well as attorneys general in previous administrations—have issued precedent-setting rulings that amounted to new immigration policies. While the new rule has already taken effect, the department will take public comments through Oct. 25.
Update: The story and headline were updated to note that the EOIR director is appointed directly by the attorney general, and with additional comment from the Justice Department.