Can the Structure of a Court Taint the Judges?

By FASPE Law Fellows Shannon Joyce Prince and Carson Thomas

Every day, migrants and asylum seekers appear before immigration judges who wield the power to detain, deport, and deny asylum.  Judicial independence is an essential element of the rule of law. Yet United States immigration judges are classified as Department of Justice attorneys and must answer to the Attorney General, the nation's chief law enforcement officer.  The American Bar Association (ABA) describes this as an "inherent conflict of interest" that leaves immigration judges "particularly vulnerable to political pressure and interference in case management." In fact, Attorneys General have the statutory authority to assign themselves immigration appeals and unilaterally change case law, a power used to an unprecedented degree by former Attorney General Jeff Sessions.  The current administration has also implemented quotas for immigration judges, mandating that they complete at least 700 cases per year and adding to the pressure to deal with almost 900,000 backlogged cases. Many immigration judges themselves have raised due process concerns. One potential solution long advocated by the ABA, the National Association of Immigration Judges, and the Federal Bar Association is to remove the immigration court system from DOJ and create an independent Article I court for immigration.  It seems unlikely that the current Congress will pass such legislation. Individuals participating in the system, particularly the judges themselves, must therefore confront difficult ethical questions. Is it the ethical responsibility of immigration judges to advocate for change to the system? Is there a point at which immigration judges should refuse to hear cases because the system may be ethically compromised?

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