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Posted Aug. 22, 2008

Another Second-Class Citizen: How the Justice Department Has Been Debasing Immigration Courts for Years

Martin

The following op-ed by Professor David Martin was first published in the Legal Times

You wouldn’t know it from most press accounts, but by far the longest section of the Justice Department’s July 28 inspector general report details misconduct in the hiring of immigration judges. News coverage has focused on crass political distortions in the hiring of prosecutors at Main Justice, while rushing by an equally important story: how Justice has degraded the system for deciding immigration cases.

Monica Goodling’s partisan violations were not the first means to this baleful end. The degradation of immigration adjudication actually started earlier, through a wholly different mechanism, in 2002.

To be sure, debasing the process was never the primary intent, but it was a highly predictable, and therefore blameworthy, outcome. Under two attorneys general, John Ashcroft and Alberto Gonzales, the harm derived from assigning serious business to eager amateurs focused on politics who either did not understand or did not value the mission of the Executive Office for Immigration Review.

The EOIR, a unit within Justice, includes both the trial-level immigration judges and the Board of Immigration Appeals. By law, all immigration judges and BIA members hold career positions for which political affiliation is not to be taken into account in hiring or other personnel actions.

Nonetheless, from late 2003 until 2007, in a process driven by D. Kyle Sampson — first as counselor to Ashcroft and later as chief of staff to Gonzales — immigration judge slots were reserved for people deemed good Republicans. These individuals were usually referred to Justice by the White House or members of Congress.

Was this an effort to dictate a particular outcome in immigration cases? Maybe to pack the court with judges who would always give the government’s deportation arguments every benefit of the doubt?

ASHCROFT’S BIG IDEA

You could forgive the immigration bar if it made such an assumption, given what Ashcroft had done to the BIA in 2002 and 2003, through a series of regulations and personnel moves widely criticized for undercutting the board’s independence. (This episode may even merit its own inspector general investigation but, to my knowledge, none has been requested.)

At the time, the BIA had a serious case backlog. It was reasonable to call for some procedural or structural innovations. But rather than hashing out possible solutions with the board’s career attorneys and professionals (who had already made real headway on the backlog with well-designed changes adopted in 1999), Ashcroft assigned the reform job to a small, tight-knit circle in his inner office. And those people rarely consulted with anyone who actually decided immigration cases.

Several major changes were made to BIA processes, including tight deadlines for decision, requirements that the vast majority of appeals be heard by single judges instead of the traditional three-judge panels, and a mandate for far stronger deference to fact-finding by the first-level immigration judges.

These were reforms of dubious merit, and there was one more startling element. Six months after these changes began, the BIA was to be cut in size from its authorized level of 23 members (with only 19 then in office) down to 11. Think about it. Would you run a business by laying off half your key workers just when you were flooded with orders and way behind in fulfilling them?

This bizarre directive made sense only if Ashcroft wanted to target certain BIA members for removal. (A reduction in force is a classic tactic to mask such a motive.) He had revealed heated feelings about BIA rulings in two appellate decisions he issued in early 2002 — Matter of Y-L- and Matter of Jean — employing a sparingly used procedure whereby the attorney general can sit in review of the BIA. Ashcroft not only reversed grants of asylum and related protections, but went out of his way to chastise the board’s reasoning as “illogical,” “incredibl[e],” “wholly unconvincing,” “deeply troubling,” and “grossly deficient.”

THE 2002 RESULTS

By the time the ax fell, one BIA member had already retired, and two had resigned in apparent recognition of their impending fate. This left five others to be reassigned by the attorney general to lesser jobs within the Justice Department.

All of the latter seven would probably be characterized as liberals, though, as with most other judges, such labels obscure complexity. A noticeable shift in the board’s orientation was thus achieved under the guise of an efficiency package. And the changes left all EOIR decision makers wondering whether they too might be reassigned if they ruled too often or too visibly for the immigrant alien.

How did the efficiency reforms turn out? The BIA succeeded in catching up on its backlog within about a year, so the immediate (and only publicly avowed) objective of the amateur reformers in the attorney general’s office was achieved. But events soon showed the folly of failing to look further ahead.

Those BIA rulings — some thinly reasoned or issued without explanatory opinion, and all hastily produced under the tighter deadlines — contributed to a massive surge in appeals to the federal courts. The appeal rate more than doubled, from a historic norm of 10 percent to 25 percent. Main Justice had to conscript attorneys from all over the department just to staff the appellate arguments, costing thousands of staff hours at those other divisions and offices.

The appellate courts were none too pleased, either with the BIA’s summary decisions or with the fill-in attorneys from, say, the Tax or Environment and Natural Resources Division, who could not help the judge much if questions at oral argument ventured beyond the record and the most obvious precedents. Reversals increased in federal court, and the federal judges shared their frustration: Opinions grew increasingly critical and even sarcastic about the BIA and about poorly reasoned immigration judge decisions for which the board had provided no remedy.

Finally, in January 2006, under pressure from the courts, Gonzales announced a comprehensive review of immigration adjudication. He followed up in August 2006 with a generally sound reform plan. The 22-point plan promised, among other things, more immigration judges, more support staff for the BIA and the immigration judges, better training, and an increase of the board’s size to 15 members, augmented by senior immigration judges on temporary details. But the reassigned BIA members were not brought back.

MORE TROUBLE

Against this backdrop, was the politically based hiring of immigration judges under Sampson and Goodling likewise meant to assure more enforcement-friendly outcomes? Surprisingly, there is no evidence in the inspector general’s report of such an objective. Indeed there are indications to the contrary.

For example, one of the candidates subjected to Goodling’s standard checklist of political questions won this admiring comment in her interview notes: “Cons. [conservative] on god, guns + gays.” The candidate also let on that he was, as the report captures it, “ ‘more hawkish’ than President Bush about policing the country’s borders to keep aliens out.” Goodling summed him up: “Strong on immigration.”

But the inspector general’s report then dryly notes the outcome: “The candidate’s name was not forwarded to EOIR.”

The inspector general refrains from speculating why this particular candidacy failed, but the only possible negative appearing in the report would seem to be the candidate’s hawkishness on enforcement. (I’m not counting his admitted “less than zero” knowledge of immigration law — because such a characteristic never loomed as an obstacle to other immigration judge appointments under this system.)

Remember, President George W. Bush himself has long been ambivalent about vigorously enforcing nonsecurity-related immigration laws, a stance apparently born of concern for his business allies. Maybe generalized hawkishness on enforcement was actually deemed incompatible with policy, at least in the eyes of the Sampson-Goodling team, even for candidates who came blessed with a congressional endorsement.

What then was really going on? The dominant impression the July 28 report gives about immigration judge hiring is simply that Sampson and Goodling saw the immigration bench as a cookie jar, and only Republicans deserved a cookie.

No recognition that judging immigration cases might be an important government task calling for real expertise ever clouded the process. Apparently the immigration bench was seen as a place where dilettantes could do no real harm — a nice place to park loyal supporters whom you might not trust with consequential work.

Moreover, the filling of immigration judge slots was clearly a low priority. By November 2006, there were 25 vacant positions — more than 10 percent of the total. Immigration officials were sending repeated messages that “EOIR’s mission was being compromised by the shortage” of judges. Yet Good­ling and her crew cared so little about it that they refused to allow serious consideration of any names generated through the traditional merits process during this same period.

The damage, although different from that worked by the 2002 BIA reforms, was substantial.

THE BUSH LEGACY

According to the inspector general’s report, the naming of immigration judges and BIA members is now back with the grown-ups, and vacancies are being filled the old-fashioned way — through merits-based selection for career positions.

But to the lingering detriment of the immigration system, the fallout from the Goodling affair has greatly slowed the hiring, staff expansion, and other improvements promised in Gonzales’ 2006 reform plan. Maybe there can be some further catch-up before the next administration takes office, though this seems unlikely in the waning months of a tired regime. As for the harm to decisional independence wreaked by the BIA cuts of 2002, that will be much harder to overcome — particularly to win back even basic respect from the federal courts.

Over the past eight years, there has been much fine talk about how critical the immigration system is to the future of America. But this administration is leaving a sad legacy — one that will definitely hamper the next president’s efforts to fix immigration.


This article is reprinted with permission from the Aug. 11, 2008, issue of Legal Times. © 2008 ALM  Properties Inc. All rights reserved. Further duplication without permission is prohibited.