Home » Uncategorized » Can Immigration Judges Really Be Fair and Impartial?

Immigration is a topic on the minds and tongues of many of our country’s citizens and non-citizens alike. Sometimes it appears that almost every person in the country has an opinion about “immigration” and opinions about our United States immigration laws, but few have ever read the laws. Fewer still have ever seen or participated in an immigration court proceeding.

The United States maintains fifty-nine immigration courts spread over twenty-seven states of the United States, Puerto Rico, and the Northern Mariana Islands, staffed by a total of 263 sitting judges.

Our immigration courts are very busy forums in which immigration judges make decisions concerning which non-citizens may be allowed to remain in the United States and which should be deported. Among their duties, immigration judges preside over asylum cases. The asylum provisions of our immigration law attempt to ensure humanitarian relief for victims of persecution. These provisions dictate that a non-citizen may be granted asylum if he or she can show they have fled their home country and prove a well-founded fear of persecution if returned to his or her home country. Asylum is a form of relief from deportation known as “discretionary relief.” Immigration judges are vested with broad discretion in deciding asylum cases.

When examining the workings of our immigration courts, one will learn that they are really not courts as most people think of judicial tribunals set up under the auspices of Articles I, III, or IV of the United States Constitution or those set up under the auspices of various state constitutions. Instead, the immigration courts of the United States are a branch of the United States Department of Justice known as the Executive Office for Immigration Review (EOIR). They are administrative tribunals devoted to hearing immigration matters, mainly deportations.

The Attorney General of the United States is the head of the EOIR and appoints immigration judges to the courts. This method of judicial appointment has always appeared to me to create a conflict of interest. The Attorney General is the chief law enforcement officer of the United States. If the Attorney General appoints the immigration judges, one wonders whether these judges can really be fair and impartial to asylum seekers when they owe their job to the Attorney General? In many cases, I believe the answer is no; they cannot divorce the political pressure they face from the Attorney General from the outcome of their asylum cases.

For those of us who have practiced in the immigration court system over the years, we understand there are many problems with asylum adjudication. To begin, most of the immigration judges have come from the former Immigration and Naturalization Service (INS) and have a law enforcement background and mindset. Until eb5 regional center recently, there had been little training for immigration judges. More often than not, immigration judges deny asylum claims. Such denials most often involve noncitizen applicants who do not understand asylum law and are not represented by counsel.

Since immigration judges are appointed by and serve at the pleasure of the Attorney General of the United States, the country’s chief law enforcement officer, there is no set term limit on the appointment of the immigration judges. In order to avoid disappointing their boss, the Attorney General, judges may intentionally avoid providing “too many” grants of asylum. Furthermore, because asylum grants are discretionary relief under the Immigration and Nationality Act (INA), a form of relief that grants immigration judges unlimited discretion in deciding asylum cases, only the Board of Immigration Appeals (BIA) and the relevant federal circuit have jurisdiction to review.

In examining recent statistics on asylum, it is heartening to learn that asylum case filings are down. However, grants of asylum are higher than they have been in the last twenty-five years. In FY 2011 the immigration courts received 48,226 total cases. Of the cases that went to trial, asylum was granted in approximately 50% of them. This is a wonderful trend. Nevertheless, over the years there have been disparities in grants of asylum among various immigration courts, as well as disparities in such decisions between judges on the same court. One 2005 study of the immigration courts produced findings that did serve to reinforce and give statistical support to what I and other immigration court practitioners have often believed: while an ideal court system must be fair and impartial, more often than not, a request for asylum by a noncitizen becomes a game of what has been termed “refugee roulette” in our current immigration court system.

The outcome of the case might depend more upon arbitrary factors such as the judge to whom the case is assigned, whether one has counsel, the ethnic and gender identity of the judge, or whether the immigration judge believes too many grants of asylum might displease the Attorney General and hurt his or her employment, instead of the facts of the particular claim. It is this author’s position that our immigration courts be reconstituted by the Congress of the United States into an Article I court where the Judges are appointed by the President of the United States with the advice and consent of the Senate.

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