Threats to Due Process in U.S. Immigration Courts - Project on Government Oversight

Threats to Due Process in U.S. Immigration Courts

Statement for the Record from The Constitution Project at the Project On Government Oversight before the House Committee on the Judiciary's Subcommittee on Immigration and Citizenship on “Courts in Crisis: The State of Judicial Independence and Due Process in U.S. Immigration Courts.”The Supreme Court has held that the fundamental requirements of procedural due process include notice of the government’s proposed action, an opportunity for a fair hearing before an impartial decision-maker, the right to present evidence and confront the government’s evidence, and the right to be represented by counsel.¹ The immigration court system has a long history of imperfectly meeting these requirements, even though the due process clause of the Constitution applies to removal proceedings. There is a mismatch between the courts’ limited resources, their large and growing caseload, and the potentially devastating consequences of deportation decisions. These chronic problems have been compounded by a series of recent policy changes that have drastically curtailed immigration courts’ independence and immigrants’ rights to seek relief from deportation. This statement will focus on those recent changes.New Limits on Court Independence and ImpartialityImmigration judges and members of the Board of Immigration Appeals are Department of Justice employees. The attorney general can direct those judges in how to manage their courtrooms and dockets; discipline or terminate judges for poor performance; and overturn immigration court precedents. The last two U.S. attorneys general, Jeff Sessions and William Barr, used these tools repeatedly to restrict immigrants’ rights and to incentivize immigration judges to order as many deportations as possible. The attorneys general took actions including:

• Imposing case-completion quotas that require judges to decide at least 700 cases per year in order to receive satisfactory performance evaluations.²

• Limiting judges’ authority to administratively close or terminate cases,³ causing a major growth in the backlog of pending cases.⁴

• Ordering judges to prioritize certain categories of cases, leading to cancellation or double or triple booking of scheduled hearings in other cases.⁵

• Repeatedly overturning Board of Immigration Appeals precedents in order to narrow procedural protections for asylum seekers and eligibility for asylum.⁶

These actions have coincided with a series of public statements by President Donald Trump denouncing asylum seekers as perpetrating a “scam” and a “hoax” in order to “invade” the United States, and the immigration court system as a “ridiculous” obstacle to summary deportation.⁷The cumulative effect, in the words of former immigration judge John Richardson, has been “the relegation of [judges] to the status of ‘action officers’ who deport as many people as possible as soon as possible with only token due process.”⁸ Richardson and several other former immigration judges have told news reporters that they resigned or retired as a result of these changes.⁹

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