Hospitality World: It is Time for an Independent Immigration Court System!

By Michael Wildes Managing Partner, Wildes and Weinberg PC | December 30, 2018

Our system of government has three coequal branches of government: legislative, executive and judicial. Congress has the sole authority to make laws, the executive branch to faithfully execute those laws, and the judiciary to decide cases and controversies. This separation of powers ensures that no one branch of government engages in excessive overreach, because one branch can check the other. The President cannot enforce laws that Congress has not passed. If Congress passes a law that is unconstitutional, the Supreme Court can strike it down. It is a system that has served us well. However, there is one particular tribunal that has escaped this separation of powers, namely immigration courts.

Immigration courts are organized under the Department of Justice and headed by the Attorney General under the executive branch. Both immigration judges and the assistants chief counsel work for the Attorney General, and can be relieved at any time.  In this sense, the Justice Department is judge, jury and executioner in immigration court. The Board of Immigration Appeals, which is the appellate court for immigration cases, is also under the State Department. Although their decisions can ultimately be appealed to federal court, and the laws they enforce are written by Congress, the fact that the judge and the assistant chief counsel work for the same boss can create an improper alignment between judge and prosecutor.

Immigration courtrooms are not grand chambers. They are relatively small rooms with limited seating. Respondents often spill into the hallways. The crowds are indicative of a larger problem. There are not many courts in this country where judges hand out trial dates two, three, or five years into the future, but that is the case with our immigration courts. I am reminded of a retired immigration judge who once stated that immigration judges decide people's fate in a traffic court setting.

There is also a tremendous regional variance in case outcomes. For example, an asylum case decided in New York immigration court is far more likely to be granted, with approval rates above fifty percent, whereas in Georgia, where approval rates are in the single digits, that same case would be far less likely to succeed. The truth of the matter is that asylum cases turn on evidence that is frequently generated abroad by foreign institutions, and immigration judges are left to guess as to their authenticity.

Therefore, cases frequently turn on the credibility of the witness and on the judge's discretion. At the end of the day, judges decide who stays and who leaves based on how credible the respondent appeared. Absent clear inconsistencies, it is difficult to determine who is truthful under oath if there is no available corroborating evidence. That leaves it in the judge's hands, which is what leads to the wide disparity in outcomes between rural and metropolitan. For this reason, foreign nationals have been known to forum-shop. Many come to New York specifically because of the liberal mindset on the immigration bench. In a federal system that purports to apply equal and impartial justice under the law, such disparate outcomes should not exist.

Although flawed, immigration courts and the Board of Immigration Appeals have worked reasonably well in the past, when Attorneys General have had less direct influence on the day-to-day operation of the courts.  That is no longer the case.  On October 1, 2018, a new job performance policy for immigration judges went into effect.  Promulgated by Attorney General Jeff Sessions, the new quota system requires that immigration judges adjudicate a certain number of cases each year, and that they render those decisions in a certain amount of time.

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