BROWNSVILLE, Texas (Border Report) — The leader of the organization representing immigration judges this week advocated before Congress for the separation of the U.S. immigration court system from the Justice Department.

U.S. Immigration Judge Ashley Tabaddor, president of the National Association of Immigration Judges, on Wednesday told the House Judiciary Subcommittee on Immigration and Citizenship that “conflict and tension” pervade throughout the immigration court system because it falls under the umbrella of a law-enforcement agency.

Tabaddor and other legal experts allege a conflict of interest in adjudicating asylum when immigration courts are ruling on cases brought by agents from its own department. They called for the establishment of an independent immigration court. 

“The law enforcement focus of the Department of Justice has consistently interfered with and compromised with the immigration court system,” Tabaddor said.

Currently, U.S. immigration judges are employed by the Executive Office of Immigration Review (EOIR), part of the DOJ, and are answerable to the U.S. Attorney General, who is also the nation’s chief prosecutor. Immigration case reviews can also be overturned on appeal by the EOIR director who doesn’t even have to have a law license under current administration rules, Tabaddor said.

In addition, new requirements that each immigration judge complete at least 700 cases per year is putting undue stress on those who sit on the immigration bench, by causing cases to be rushed and sometimes not fully reviewed, Tabaddor said.

“The purpose of the metric is to goad judges to put speed over substance and automate their decisions to the will of the Administration,” she said.

Tabaddor said that only 60% of the nation’s 440 federal immigration judges actually met the 700-case metric in fiscal 2019.

There are serious challenges to due process in our current immigration judicial court system and fundamental change is necessary.”

American Bar Association President Judy Perry Martinez

Despite the addition of 200 new immigration judges in the past three years, the backlog of cases has increased by 600,000, and now tops over 1 million, Tabaddor said.

U.S. Rep. Henry Cuellar, who sits on the House Appropriations Committee, told Border Report recently that an additional $109 million was added in the fiscal 2020 budget to enable the hiring of 100 more federal immigration judges this year.

But “right now there are actually more immigration judges than courtrooms,” available, and so along with a backlog of cases there is also a backlog of necessary courtrooms to be built, Cuellar said.

U.S. Rep. Buck Kenneth Buck, R-Colorado, who serves on the Judiciary subcommittee said the case backlog cannot be attributed to a lack of immigration judges, but should be attributed to migrants who fail to appear for their court hearings and clog the dockets. And he said no revamping of the system is necessary.

“I’m confident in the due process of our immigration judges to provide to the parties appearing before them and am equally confident in their ability to apply the law to the facts of the case.
U.S. immigration judges consistently rise to the challenge in a difficult environment adjudicating cases impartially and professionally and most do their jobs without complaint,” Buck said.

U.S. Rep. Susan Ellen “Zoe” Lofgren, D-California, the committee chairwoman who oversaw Wednesday’s hearing said it was long overdue.

“With today’s hearing, we shine a spotlight on an issue that requires urgent congressional attention: A crisis that is unfolding in our nation’s immigration courts. In order to be truly effective, the immigration court system should function like any other judicial institution where due process and fair procedures are held in the highest regard and where parties on both sides are treated equally without bias,” Lofgren said in opening remarks.

No ‘access to counsel’ for many migrants

American Bar Association President Judy Perry Martinez testified that it’s philosophical problems, not just structural problems that are currently plaguing the judicial immigration institution.

“The immigration court system lacks the basic structural and procedural safeguards that we take for granted in other areas of our American justice system,” Martinez said. “There are serious challenges to due process in our current immigration judicial court system and fundamental change is necessary.”

Witnesses also told lawmakers that the judicial immigration tent courts in South Texas do not offer due process to asylum-seekers.

Martinez told lawmakers that she has repeatedly visited the judicial immigration tent courts in Brownsville, Texas, where asylum-seekers — who are forced to remain in Mexico during their immigration process — appear before immigration judges via videoconferencing. These migrants are part of the 60,000 who have been placed in the Migrant Protection Protocols (MPP) program since it was implemented by the Trump administration in 2019.

“There are serious issues with the access to counsel with only 4 percent of persons in MPP having ability to have representation. For those who do find a lawyer, their ability to consult is potentially limited in the tent courts, forcing counsel to travel to potentially dangerous locations in Mexico,” Martinez said.

Another “serious issue of concern” is EOIR’s recent initiative to replace interpreters with videos at initial immigration court proceedings, including those at the judicial tent courts, Martinez said.

Picketing the South Texas immigration tent courts

Outside the judicial tent courts in Brownsville, a daily vigil has been held since Jan. 12 by people coming from across the country in opposition to these tent courts. The largest contingency was seen on Jan. 17, the same day 17 members of Congress toured the tent court facility.

Read a Border Report story about the congressional visit.

Read a Border Report account of attending the judicial tent courts.

Joshua Rubin, of the Bronx, New York, has been organizing the daily protests, which are held in a park across from the Gateway International Bridge where the judicial tent courts are located. On Sunday, protesters will begin their third week of picketing, and Rubin has vowed to stay “until every MPP is allowed to cross.”

“Courts try to make justice for people, but what’s going on there is injustice. What’s going on there is to inflict injustice on people. They get no time, they get no attorneys, they’re told no,” Rubin said earlier this week as he held up a familiar sign bearing the words “FREE THEM” to passing motorists, some of whom honked in support.

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