The Department of Justice is preparing to enact sweeping changes in the immigration court system that would allow appeals judges to uphold deportations without justification. The changes, likely to be approved by the White House in the coming days, are ostensibly aimed at easing the case backlog burden on overwrought courts, but experts say similar measures to clear through cases quicker in the recent past did exactly the opposite.
A proposed rule change under review by the White House would allow judges on the Board of Immigration Appeals to issue so-called Affirmances Without Opinion, allowing deportation rulings to stand without requiring the appellate judge to offer an explanation that would amount to proof of their full consideration of the case. Appeals processes typically last several months, and the courts are said to take several weeks issuing written opinions. The change, first reported by the San Francisco Chronicle on Friday, would also allow the appellate judges to make rulings binding on the rest of the immigration court system.
The push to change the immigration court system comes after President Donald Trump's suggestions earlier this month that he respond to the courts' challenges by getting rid of asylum and immigration judges altogether, in a move that legal experts warn is illegal.
Advocates for immigration court judges say the proposal will do little to alleviate the massive immigration court backlog, judging by historical precedent. Under the administration of President George W. Bush, then-Attorney General John Ashcroft allowed appellate immigration judges to issue AWOs. "The litigants didn't feel that an Affirmance Without Opinion reflected an adequate consideration of their concerns," says Ashley Tabaddor, president of the National Association of Immigration Judges, an organization that advocates for the courts' interests.
Many cases with AWOs were then appealed outside of the immigration court system, to the federal Circuit Courts, significantly lengthening proceedings. "They began reversing cases and turning them back and criticizing judges," Tabbador says.
Ultimately, a policy designed to speed up the work of the immigration courts resulted in greater pressure on them, with the number of cases in the backlog skyrocketing. A Cornell Law School study that assessed the affects of the policy change showed the number of decisions that the Board of Immigration Appeals needed to review had skyrocketed from 53,546 decisions in the months before it was enacted to 110,548 decisions just a few months later. "With more BIA decisions being issued each month, there are more decisions to be challenged," the study says.
"It seems that history has not served as a lesson," Tabaddor says. "It's certainly not clear what, if anything, they think they've done differently that will make it more palatable to the Circuit Courts or the public, frankly."
Legal experts agree that the administration revisiting AWOs appears counterintuitive. "I think this will just cause further delay because a [Board of Immigration Appeals] decision without any reasoning or justification that is appealed to a federal appeals court will likely be remanded back to the Board of Immigration Appeals and immigration court, thus protracting the removal process by years," says Jean Reisz, a University of Southern California law professor and supervising attorney at the university's immigration clinic.
The Department of Justice did not respond to Pacific Standard's request for comment.
The Trump administration has long pledged to help alleviate the backlog and pressure on the courts—and simultaneously enacted policies that analysts say have done just the opposite. In April of last year, former Attorney General Jeff Sessions imposed a quota of 700 case closures a year on immigration judges. The move actually compounded the immigration court backlog reportedly, because when judges are visibly under pressure to rush through their caseloads, defendants are much more likely to appeal their rulings. Then in May, Sessions stopped the use of administrative closures, whereby judges could opt to withhold rulings on certain cases while immigrants filed formal applications for residency status, allowing the judges to prioritize and streamline their caseloads.
"The tension between a growing number of cases in the courts and fewer avenues to approve or prioritize cases has resulted in chaos, confusion, backlogs, and unhappy immigration judges," says Martha Ruch, Immigration Project staff attorney at Asian Americans Advancing Justice–Los Angeles.
"All of these changes have reduced access to due process for immigrants, which may result in more deportations but also results in more appeals, and in the non-detained court it likely just results in more backlogs," Ruch adds. "The administration's actions have done more to disrupt, rather than 'streamline' the immigration court process and places additional burdens on the federal appeals courts that eventually hear those cases which were given unfair treatment in immigration court and at the Board of Immigration Appeals."
Sessions is no longer in charge of the Department of Justice, but policies much like the ones he enacted last year are still forthcoming, experts say. "It seems like [William] Barr, the new attorney general, is following in Session's wake," says Julia I. Vázquez, an immigrant rights professor at Los Angeles' Southwestern Law School.
It remains unclear whether the administration is committed to solving the problems facing the immigration court system or upending that system altogether. Earlier this month, Trump responded to questions about the courts by suggesting that he "get rid" of the entire asylum system and judges.
"Ultimately he does not have the power to end the asylum system and get rid of judges, but that doesn't seem to stop him from making such alarming claims," Reisz says. "The authority for asylum and immigration judges is in the [Immigration and Nationality Act], which means getting rid of asylum and immigration judges could not happen without an act of Congress. In addition, the U.S. Constitution requires due process for immigrants in deportation and removal proceedings, including when seeking asylum, which is why there are immigration judges."
Tabaddor underlined that the answer to the immigration courts' impasse is a matter for lawmakers, and reiterated previous calls from the U.S. legal community for the immigration courts to be made independent from the Department of Justice. "We call on Congress to remedy the situation as it is within Congress' authority to remedy this situation by creating an independent immigration court," she says. "The association has repeatedly indicated that the immigration court system is broken. Until that fundamental conflict of interest has been resolved, we will continue to see backlogs and other challenges plaguing the court."
Some analysts suggest that the problems run much deeper than the courts—to the very immigration laws that the courts weigh. "The real solution to all of these problems is immigration reform," says Richard Boswell, a law professor at the University of California–Hastings who specializes in immigration law. "Many of the cases should not be in the immigration courts and should be resolved with a legalization program. This, of course, is not what this administration wants to do at any time in the foreseeable future."