On October 12, 2017, the Washington Post reported that the Trump administration seeks to impose numeric quotas on immigration judges as part of their performance evaluations. Speeding up deportation proceedings without regard to the impact on due process and judicial independence is an affront to the core American values of justice and fairness. The proposal has raised critical concerns among almost everyone involved in immigration court proceedings, including immigration judges, attorneys, and organizations advocating for immigrants in removal proceedings. Immigration judges have courageously spoken out in opposition to this plan despite possible repercussions from management.
One of the bedrock principles of our judicial system is that everyone is entitled to a fair day in court. Respondents in removal proceedings have placed their trust in the judicial system and their constitutional right to due process. Immigration judges make life-changing decisions for each respondent who appears before them every day. There is no way to impose arbitrary fast-track quotas on immigration judges without damaging the chance a client has to present the applicable law and facts of their cases. It is only after examining the entire case in a thorough manner that immigration judges have an opportunity to deliberate and issue well-reasoned decisions. Setting case completion quotas on immigration judges will erode their ability to make these careful, considered rulings.
For example, truncating an asylum case will be prejudicial for respondents who are often dealing with the psychological and emotional scars of what they have experienced in their home country. Attorneys representing these respondents are regularly faced with the challenge of gathering evidence to support the asylum claims from a country or region in turmoil. Most respondents flee their home country without any corroborating documents such as police reports or hospital records and they often do not have family members or friends able to assist in getting these documents. Even if a family member attempts to access relevant documentation, they can face challenges by the authorities in the home country.
In one of my cases, my client had to wait almost nine months to get a copy of the sentencing documents of her persecutor. While we were very fortunate that the immigration judge gave us sufficient time to present this evidence, respondents under a performance quota system won’t have those opportunities. Courts will be pressured to accommodate the quotas at the cost of potentially excluding essential facts from their consideration. Clock-watching is the polar opposite of due process. Rather than due process, we will see “drive-thru,” or “express checkout,” proceedings.
The argument for quotas is that it will speed the process up for the judges hearing the more than 630,000 pending cases in the 58 immigration courts across the country. However, forcing a judge to make a decision that violates a respondent’s due process won’t make things faster because competent counsel will turn to lengthy federal litigation to access due process.
The proposed numerical measures will interfere with judicial independence. Immigration judges will have to worry about the quantity rather than the quality of cases they are deciding, and fear termination if quotas are not met. These pressures should never enter into a judge’s consideration of a case. Judicial independence should be fiercely protected. Nothing—and especially concerns over job security–should interfere with a judge’s duty to fairly decide cases. Immigration judges are already among the hardest working members of the judiciary so imposing quotas on them is not going to improve their “efficiency” or that of the immigration courts.
Absolutely, the current backlog should be examined and addressed, but it should be addressed in a comprehensive credible plan that advances reforms to EOIR’s structural problems, supports the independence of the court system, and builds due process and fairness norms into the adjudication process. The way to handle these backlogs should reflect an understanding of the complexity of the cases before immigration judges, and not one that will destroy due process and the right to a fair hearing.
On November 1, 2017, the House Judiciary Committee has scheduled a hearing entitled “Oversight of the Executive Office for Immigration Review” with Acting Director of EOIR, James McHenry, as witness.