A new rule from the Department of Justice gives a political appointee chosen by Attorney General William Barr the authority to toss immigration law decisions they don't like.
The administration just took another step to undermine the independence of immigration law judges. This time, it's by allowing immigration courts to overrule immigration law judges on cases. Now, a Trump political appointee will be in the position of being able to simply discard the ruling of judges.
Right now, only the attorney general can overrule decisions from immigration law judges. Both former Attorney General Jeff Sessions and current Attorney General William Barr have used this power already to limit who can get asylum. However, it's intended to be an extraordinary, little-used power. The DOJ's new rule, which went into effect Monday, gives the head of the Executive Office for Immigration Review (EOIR) authority to do that whenever they want. The EOIR director is appointed by the attorney general and doesn't have to be confirmed by the Senate. That means they're beholden to no one — save for William Barr.
Ashley Tabaddor, who is president of the National Association of Immigration Judges, the judges' union, said that this rule change "substitute[s] the policy directives of a single political appointee over the legal analysis of non-political, independent adjudicators." Replacing independent assessment with political policy, said Tabaddor, means that "the immigration court system has effectively been dismantled.”
All of this arises because immigration law judges aren't judges in the way they are normally thought of. They're actually employees of the Department of Justice (DOJ) and they get their jobs through a merit-based hiring system. They are people with lifelong expertise in immigration law, not political hacks. They are meant to be independent of political influence so they can best render fair decisions.
And Trump absolutely hates them. He hates them precisely because they are independent and focus on the rule of law rather than doing his bidding. He's unhappy about the fact there are immigration courts, declaring that "we are the only country, essentially, that has judges...Other countries have, it's called security people. People that stand there and say 'You can't come in."
When the Washington Post investigated that claim, they found that the U.S. system is similar to over a dozen countries, including France, German, Italy, Slovenia, and Sweden.
Trump has also railed against the very concept of due process for immigrants and wildly overinflated the number of judges.
With all that, it's not surprising that his administration keeps taking steps to undercut the authority and independence of immigration law judges. The DOJ is trying to bust the judges' union by declaring judges are not employees. It even sent all immigration court employees an email with links to an anti-Semitic website that specifically attacked the immigration judges. Now, it's giving a political appointee the authority to overrule judges' decisions. Given the attitude of both Barr and Trump, that's sure to result in more decisions that are unfair to immigrants and further restrict asylum claims.
The court system has well and truly been dismantled.
Published with permission of The American Independent Foundation.