Immigration Judges: Who Supervises Them?

The U.S. functionaries known as “immigration judges” are, in fact, employees of the Executive Office for Immigration Review (EOIR), which is part of the Department of Justice (DOJ). The problem today is that they insist on being something well beyond that – judges with zero accountability. This has put them squarely in conflict with the Trump administration.

Immigration judges are not independent, like real judges, but neutral, in that they do not represent the Department of Homeland Security (DHS), which brings cases to the EOIR. Aliens may not bring cases independently to the EOIR, but only in response to an action taken against them by DHS.

Immigration judges are executive branch employees, and are therefore subject to the supervision of the President of the United States or his appointees. Executive branch employees are supervised, reviewed, evaluated and managed by a numerous levels of management. No one in the executive branch exercises independent judgment that is not reviewed by another executive branch employee, including the president himself.

Immigration courts, unlike federal district and appeals courts, are part of the DOJ. The Attorney General (AG) has, therefore, the authority to act as an arbiter on legal questions affecting immigration proceedings. Immigration judges are first supervised by the Chief Immigration Judge, Deputy Chief Immigration Judges, and Assistant Chief Immigration Judges, as well as the AG, in both the exercises of their authority and administratively.

Most attorneys in the DOJ are not unionized (that is, represented by a bargaining unit in negotiating working conditions and disciplinary actions) because the nature of their work, including prosecuting and disciplining labor organizations, makes representation a conflict. In addition, immigration judges are employees involved in national security work (mostly related to aliens being removed who are terrorists). Most employees involved in investigating any crime are prohibited from being represented by unions. Examples include: FBI, DEA, Secret Service, Homeland Security Investigations, Offices of Inspector General, etc.

Since immigration judges represent the DOJ in legal proceedings, they should not be unionized. Unfortunately, they are. The National Association of Immigration Judges (NAIJ) represents judges employed by the EOIR.

The Trump Administration has moved to decertify the immigration judges union, something tried earlier by the Clinton Administration.

On August 9, 2019, the DOJ filed a petition asking the Federal Labor Relations Authority to determine whether the union, the NAIJ, should have its certification revoked because its members are considered “management officials” ineligible to collectively organize.

This is good news because of the overt and illegal political activities of individual judges, already forbidden under the Hatch Act, which prohibits federal employees from acting politically in their positions.

In September 2018, AG Jeff Sessions wrote that immigration judges don’t have “free-floating power” to end deportation cases by dismissing removal proceedings. Judges could dismiss a case if the DHS failed to meet its burden of proof or if specific conditions spelled out in existing regulations were met. Sessions reversed an immigration judge’s decision to terminate a removal case, finding it wasn’t based on the law or regulations. Of course, the NAIJ reacted strongly that this was part of a broader effort by the DOJ to limit their independence.

Both the NAIJ president, Ashley Tabbador (a 2005 Bush appointee), and executive vice-president, Amiena Khan (a 2010 Obama appointee), have called for immigration judges to be independent of the DOJ. They have spoken out repeatedly against what they say is an attempt to turn immigration judges from neutral arbiters of the law to law enforcement agents (which, in fact, they are) enacting the White House’s policies.

Tabbador (an Iranian-American) is notorious for her political activity as an immigration judge. Khan is a radical and approved 93.8% of asylum cases in her court.

It is obvious that immigration judges do not want to be supervised or be subject to accountability in their machinations to assist illegal aliens.

The NAIJ criticized the DOJ’s quota system, which requires immigration judges to complete 700 cases per year, as well as a move to bar judges from an administrative tool they had previously used to reduce their caseloads. The NAIJ claims the focus on efficiency impedes judges’ ability to work through complicated cases and could affect the due process rights of immigrants in court.

What we see here is the immigration judges’ twisted philosophy. They think the immigration judges serve as a check on the president or other management executive. They claim that the Trump administration’s “political approach” to immigration courts persistently moves to limit immigration judges’ independence and pushes them toward rapidly issuing orders of removal rather than engaging in creative problem-solving and practical-based outcomes for the people who come before the immigration judges. In reality, subordinate employees implement the policy of the president and do not serve as a check on him, nor on the AG. Immigration judges should be looking instead for “practical-based outcomes” for the people they work for, the People of the United States.

Aside from being all executive branch employees, immigration judges operate under the same conditions as a parole board, in that everyone who comes before them is guilty. One only gets to the EOIR if he/she is already a deportable immigrant, just as one only gets to the parole board after he/she has been convicted and sentenced to prison. Parole boards are not supposed to get “independent” ideas about releasing dangerous criminals back in to society, now are they?!

Unfortunately, the DOJ focus on the management issue for the decertification process is not efficient as a strategy. Although immigration judges do manage local court personnel (or at least have personnel working at their direction), the position description for immigration judge states that it is a non-supervisory position.

Therefore, it is much better just to declare the position of immigration judge a national security position and decertification becomes automatic. George Bush did this with Special Agents in U.S. Immigration and Customs Enforcement (ICE) and it was upheld. It is time for the Trump Administration to use once again its vigorous executive force.

 

NOTE – A version of the article was previously published in AMERICAN THINKER.

 

TIBERIU DIANU has published several books and a host of articles on law, politics, and post-communist societies. He currently lives and works in Washington, DC and can be followed on MEDIUM.

 

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5 comments to Immigration Judges: Who Supervises Them?

  • Laura

    just cut off all immigration until we can reach a consensus on who we want to grant citizenship to. End all asylum except in the very most extreme cases. I think anyone who has walked/ridden through Mexico to come to the US is not elegible for asylum in the US. They are not fleeing to the first safe country…they are choosing the country that will GIVE them the most in benefits and goodies

  • MARCELA DESCULTU

    The responsibility of immigration judges is confusing for some. The job of immigration judges is to decide on political asylum or deportation of illegal immigrants. Currently, there is a conflict between them and the Department of Justice.

  • MARCELA DESCULTU

    Immigration judges, despite their name, are government employees, not court judges, and they belong to the Department of Justice. Immigration judges are not “independent” and they are subject to the control of the President, Attorney General and their chief-immigration judges. For this reason, they should not be unionized, but, unfortunately, they are.

  • DANIELA

    The union leaders of the immigration judges are in open conflict with the President and the DOJ because they do not want to be monitored according to the law, but to issue instead revocations of deportation orders without being monitored.

  • DANIELA

    As a result of this conflict between the immigration judges and the DOJ, President Trump took the action of decertifying the union of the immigration judges.



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