By: Honorable Charles M. Honeyman (Retired)
As of counsel and on behalf of Solow, Isbell & Palladino, LLC, welcome to an ongoing series of thought-provoking and informative blogs whose focus, among others, will be to describe and critique the evolving Immigration Court structure and process in the context of its current existence within the Department of Justice (DOJ), Executive Office for Immigration Review (EOIR). With 40 years of rewarding experience in the field of immigration law, including more than 24 years as an Immigration Judge (IJ), it is my honor and privilege to share my wisdom and insights with you.
I intend and expect my blogs to be of interest and useful to a wide variety of individuals and groups, including: clients, prospective clients, community and faith-based organizations, non-profit organizations, law school clinics, academic scholars, attorneys practicing in other fields, judges, prosecutors, defense attorneys, and issue-specific advocacy groups. Additionally, I expect that these blogs will attract the attention of journalists, political actors, and appointed officials.
My goal is to reach and teach as many people and organizations as possible with informative commentary that will counter those who frequently target Americans and present a vague, simplistic, and often inaccurate picture of Immigration Judges, Immigration Courts, and the complexity of immigration law. I begin these blogs with a simple idea and premise: that beyond those interested personally and professionally, there is an immediate and ongoing need for a factually accurate source of information for you-the voter and citizen-who often struggle to make sense of our unusual, confusing but vitally important Immigration Court system. Only with such information and nuanced understanding will stakeholders and citizens alike be able to influence and advocate for sound policy and legislative preferences.
Introduction to the Immigration Court
Previously housed within the former Immigration and Naturalization Service (INS), the modern Immigration court came into existence on January 9, 1983, as a component of the newly created Executive Office for Immigration Review (EOIR). While remaining within the Department of Justice (DOJ), the rationale for this new component was to ensure a greater degree of separation structurally from the DOJ component (INS) that prosecuted foreign nationals by initiating civil removal (previously known as deportation) proceedings. Also housed within EOIR is the Board of Immigration Appeals (BIA), the administrative appellate entity which hears most appeals from decisions of IJs and the Office of the Chief Administrative Hearing Officer (OCAHO) which hears cases involving alleged employer hiring violations and citizenship discrimination claims.
In March 2003, the various components of the INS were merged into the newly created Department of Homeland Security (DHS) while EOIR remained within DOJ and thus under the direct supervision of the Attorney General of the U.S., a political appointee and the nation’s chief prosecutor. As a consequence of this awkward and some would say illogical structure, DOJ appellate attorneys will defend IJ decisions in federal courts when benefit applications are denied and foreign nationals are ordered removed (after the BIA has affirmed the IJ decisions); but conversely, those same DOJ attorneys will argue to defeat IJ grants of benefit applications in federal court if DHS prosecutors appeal to the BIA which in turn reverses such grants.
Because DOJ may both defend and urge the reversal of IJ decisions, this taints the Immigration Court as an entity far less independent and impartial than any “court” anywhere. In fact, despite IJs having statutory and regulatory authority to be designated as “judges,” presiding over Immigration “Courts,” the DOJ internally treats IJs merely as agency “attorneys” with all the limits and constraints that imposes. As a result, a large number of sitting and retired IJs, including their legally recognized collective bargaining representative, the National Association of Immigration Judges (NAIJ), have advocated for structural reform through the creation of an Article 1 Immigration Court. This refers to Article 1 of the U.S. Constitution, from which authority the Tax and Bankruptcy Courts were created.
Beyond avoiding the appearance of bias in decision-making to both the left and the right of the political spectrum (depending on which party controls the White House), such structural reform would lead to a stable budget commensurate with the evolving needs of this independent court. Moreover, after a period of grandfathering for incumbent judges, opportunities would exist for the ongoing appointment of a sufficient number of qualified trial level and appellate judges to meet the changing caseload of the court.
Such an independent Article 1 Immigration Court model, with a firewall between it and executive branch political appointees, would also shield IJ decisions from criticism by federal courts, litigants, the press, and the public that some decisions seem to reflect a lack of impartiality. An example of such an area of concern is the perplexing and disturbingly wide disparity between asylum grant/denial rates among different judges and courts. These disparities have triggered a genuine concern that decisions might be increasingly tainted by political considerations and internal bureaucratic pressures from those within DOJ who control the budget, the appointment power, and the power to discipline and possibly terminate IJs whose decisions do not align with the policy preferences of a particular administration. These concerns have been heightened as a result of the IJ quotas and performance metrics that became effective on October 1, 2018. Moreover, the overwhelming dominance of IJ appointees with prosecutorial, law enforcement, and military backgrounds to the near exclusion of those from private practice is another related area of concern. Similarly, all recent appointments of IJs to the BIA have had extremely high asylum denial rates which appear to have been the primary reason for their selection.
Lastly, addressing one of the challenges to implementing such structural reform, at least some of the required financing could flow from the newly created independent court assessing reasonable costs for services rendered. It will surprise or astound many to learn that the Immigration Court may be the only court in the world that collects no fees to offset court costs for benefit applications, motions, transcripts, interpreters, prosecutions found legally indefensible, or anything. Presently, for example, regulations that establish filing fees for benefit applications filed in court and adjudicated by IJs require that such fees be paid to the DHS. This is an historic anomaly that leaves the court subject to the vagaries of the annual budget process, battling for power and influence within the massive DOJ, frequently underfunded, and always at the mercy of changing political winds within an administration and in transition to a new administration.
The proposal for an Article 1 Immigration Court has been floating around for many years and would be a complicated undertaking. But support is growing among many institutions within the legal community, including the American Bar Association, the Federal Bar Association, the American Immigration Lawyers Association, and the Cato Institute as well as among the political class. Such support has taken hold in particular because of the Trump administration’s harsh (many would say brutal) and economically indefensible anti-immigrant policies. Moreover, the administration’s efforts to control, micro-manage, and reshape both the structure and composition of the Immigration Courts and the Board of Immigration Appeals (BIA) have been unprecedented.
Also unprecedented has been the effort to shape and influence the content of decisions through ideologically driven appointments and the Attorney General’s broad rather than sparing use of his regulatory certification power to rewrite BIA decisions. Moreover, just within the past few weeks, an internal memo viewed by CQ Roll Call revealed that James McHenry, EOIR Director, offered financial incentives to nine incumbent BIA members (appointed by both Republican and Democratic administrations), encouraging them to retire or resign. No one has accepted the buyout offers. While EOIR has consistently denied that hiring has become politicized, it is clear to most observers that the administration is both packing the appellate bench and seeking to make room for ideologically compatible judges who will conform to a narrow anti-immigrant interpretation of the law.
Make no mistake about this effort as it is consistent with the administration’s political agenda that strives for and celebrates the notion that all courts (including administrative appellate tribunals) can and should be transformed into lock step ideologically pure and politically deferential institutions. Nominal judicial independence as a check against an abuse of power is merely window dressing designed to shield (however ineffective) the administration’s not so subtle authoritarian leanings from the light of day. All of this and more reveals (along with other regulatory initiatives, proclamations, and executive orders) the unabashed agenda of today’s radical restrictionists who now control the immigration policy agenda, subject to court intervention.
These and many more related issues will be explored in future blogs. Possible topics may include: important new BIA and 3rd circuit decisions impacting asylum seekers as well as applicants for cancellation of removal and adjustment of status to permanent residence; regulatory changes affecting the Immigration Court; rules of evidence and procedure in Immigration Court; preparing for the different stages of the hearing process; developments in the law impacting the grounds for removal; ethical issues; document and witness preparation; expert witnesses; preparing clients emotionally for hearings; the evolving impact of Covid-19; and how to take into account variations in the style, approach, and predisposition of Immigration Judges, including the importance of a thoroughly prepared trial strategy and the building of a record for potential appeal.
I look forward to future opportunities to inform and assist you in understanding Immigration Courts and Judges so that you can secure the legal help you need, otherwise utilize the content of these blogs in the work that you do, or as a citizen seeking to become better informed.
Thank you for taking the time to consider these important issues and your willingness to learn a bit more about the Immigration Court system in the U.S.
Hon. Charles M. Honeyman (Retired) joined Solow, Isbell & Palladino, LLC as Of Counsel in March 2020, after more than 24 years of service as an Immigration Judge. Following his retirement, Judge Honeyman has remained active in the field of immigration law through writing, speaking, teaching at CLEs, and offering strategic litigation counsel, and advising academic scholars conducting research on immigration-related topics. Judge Honeyman is a retired member of the National Association of Immigration Judges (NAIJ), a member of the prestigious Roundtable of Former Immigration Judges, and has rejoined AILA. Judge Honeyman is a member of the Maryland (active) and Pennsylvania bars, and was formerly a member of the New Jersey bar.
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