Trump Justice Dep’t to Immigration Judges: Pick up the Pace or We’ll Decide Your Cases

Did you know that the judges deciding most immigration cases – including serious asylum matters – are employees of the Justice Department and not independent judges like the ones who handle criminal or civil cases? Most people don’t. Even the judges hearing initial immigration appeals are Justice Department employees. Under a new streamlining rule, however, even these judges may not have the final say in the life-and-death decisions affecting people in the immigration system.

Should a single, political appointee make these decisions?

Until recently, a person who claimed asylum status, due to persecution abroad, might bring this claim in immigration court, part of the Department of Justice. There, an immigration judge, who would be a Department of Justice employee, would adjudicate the person’s claim, deciding whether or not the person faced a well-founded fear of persecution if returned to her home country.

If the person lost in immigration court, she could appeal to the Board of Immigration Appeals, an appellate body also housed within the Department of Justice. Members of the Board were typically highly experienced immigration attorneys charged with exercising independent judgment in adjudicating cases before them.

However, a recent Department of Justice rule has changed these appellate arrangements significantly. Now, if the Board fails to complete a case within either 90 days, or 180 days, depending on the nature of the case, it may be assigned to the “Director” of the immigration court system, a political appointee.

Proponents of the rule change argue that it will increase the efficiency of a system that faces a lengthy backlog of cases. Opponents say that it will inject politics into legal adjudications of individual cases and pressure immigration judges to make quick decisions without proper consideration.

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Michael Harwin

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