SHE LDON WH ITE HOUSE hut: RHODE ISLAND lace: 224-25121 WY [209: 211 "37-16 i-t' tT . if Wu that 'r I. SIJIYE 200 I . . a? .3 F'lil'l'v'll Ia ht . Fil U2UUB Enviaorirvn AND Poetic wouas [3113 Enatt HUI: ass sass. WASHINGTON. DC 20510-3905 .IUUICIARV February 13, 2020 The Honorable William P. Barr Attorney General of the United States US. Department of Justice 950 Ave. NW Washington, DC. 20530 Dear Attorney General Barr: We are deeply concerned that the Trump administration is undermining the independence of immigration courts and mismanaging their administration. As members of Congress, we seek to ensure that our immigration laws are interpreted and applied fairly and impartially. We write for additional information about the training and hiring of immigration judges, and the management of immigration courts, in order to determine whether immigration courts are ful?lling this essential duty. Recent reports detail how the Trump administration circumvented regular hiring procedures to appoint a cadre of partisanjudges to the Board of Immigration Appeals The Trump administration also has released a series of rules that will allow for increased political in?uence over individual cases.2 These actions are merely the latest steps in the Trump administration?s ongoing campaign to erode the independence of immigration courts. The administration?s gross mismanagement of these courts further prevents them from providing basic due process. The administration must reverse course to avoid lasting damage to public confidence in our immigration court system. Due Process Requires Immigration Judges To Be Fair and Impartial Immigration courts were created under the Immigration and Nationality Act (INA) as part of the Department of Justice (DOJ). The US. Constitution, precedent, and practice have protected immigration judges from political interference and preserved their impartiality.3 The Fifth Amendment guarantees the right to due process in deportation proceedings,4 including ?the right Tanvi Misra, DOJ changed hiring to promote restrictive immigration judges, ROLL CALL, Oct. 29. 2019, 3 Organization ofthe Executive Of?ce for Immigration Review, 84 Fed. Reg. 4453? (proposed Aug. 26, 2019) (hereinafter ?Interim Rule?); Board of Immigration Appeals: Af?rmance Without Opinion, Referral for Panel Review, and Publication of Decisions as 84 Fed. Reg. 3 I463 (2019). 3 The fact that these courts were created as part of the executive branch does not mean that they are exempted from traditional protections on the independence and impartiality of the judiciary. As several Courts of Appeals have noted, ?When Congress directs an agency to establish a procedure . . . it can be assumed that Congress intends that procedure to be a fair one.? Blanco de Belbruno v. Ashcroft, 362 F.3d 272, 281-82 (4th Cir. 2004) {internal citations and quotations omitted); Marincas v. Lewis 92 F.3d 195, 203 (3rd Cir. 1996] (same). See also Qgiithno v. 442 US. 682, 693 {1979} Court has been willing to assume a congressional solicitude for fair procedure, absent explicit statutory language to the contrary?). Egg Reno v. Flores. 507 LLS. 292, 306 (1993). - nit r- to an .-i'mpartial adj ud?icator.?5 The INA incorporates these due process protections: giving nonciti gene the right to a? hearing with an attorney to examine the evidence against them 'to present then own evidence. and to cro'ss? examine '11 ttnesses Tend the right to an appeal. 3 Federal regulations further require immigration judges to 1:1eim121artiaF'i and These protections re?ect the Well-established p1 inciple in our legal 'system that a judge- must ?observe the utmost- faimess,? striving to he perfecti}r and completely independent with nothing to in?uence or contro?] him but God and his conscience. As the U. 3. Supreme Court has explained. [hjoth the appearance and 1eality or. impartial justice are necessary to. the public legitimacy 11ij udicial pronouncements and thus to the ruin itself.?12 This principle is. vitally. important when. drastic measure, 'often'amounting to lifelong banishment or exile? is at stake. I Immigration Judges Have Historica'ilv' Eniove?d Structural Protections to Minimize Political Interference . Immigration judges have traditionally been inSulated from poiitiCal interference when deciding individual cases. The lynehpin-of this independence has been the separation of administrative and Ipolicymaking. responsibilities at the Executive Of?ce for Immigration Review from 'cas'e- specific adjudications performed by trial- level immigration judges and the judges. on the BIA. Immigration court-s. are housed within EOIR. a subdivision of DOLand. its judges are federal civil. service employees with civil service protections. The BIA also resid es under EDIE and '5 Torres? Aguilar v. 1.11.3246 F. 3d 12611231} [9111' Gir. 2110.1) ?The Fifth Amendment guarantees due process in deportation proceedings Among other protections the right to due process encompasses a right to a full and Fair hearing ;the right to an impartial adjudicator ;an_d the evaluation at each. case on its own merits (Iiniernaicitatiods omittedjj. 111113.131 1.2291111111411111. 71d- 12291111111413}. 3 id. and passes-1 (discussing procedures for deportation proceedings. generaliyj). it 11.5. -{IivI) (discussing prdciadure's for asylum) 9 8' C. R. 10133. 10(1)) in all cases. immigration judr-res shall seal. to resolve the questions before them 111 a timely and. impartial manner consistent with 11111.net; and regulations. 3 F. R. '13. 11303. (stating that the. Board of Immigration Appeals shall aiso be impartial. See aiso. e. g, lsiam Gonzales 469 F. 3d 53 .35 {2d lCir. 201161 [A]s -'ajudicial .oi'ficer- an immigration judge has a to function as a neutral impartiai. arbiter and must be careful to re?'ain from assuming the role of advocate for either. party. )j To'rres?Aguiiar, 246. 3d at 1270 (9111 Cir. .2001} if explaining that'theFi?h Amendment guarantees due process in deportation proceedings, including ?the right to an impartial adjudicator"). ?8 3 1011310111) (?in deciding the individual cases before-them, and subject- to the applicable governing .standardg immigration judges shall 11111-11511 their independentjudgment and discretion . .1003. ?Board members shall exercise their independent judgment and discretion-in considering and determining the cases coming before the Board . . . Address of John Marshall. PROCEEDINGS AND DEBATES 111? ?11-111 111111111111 811111a(31111111artist?sI 01-13294-3131111 151.6 [l 330]. 1.. Wiiliams v. .136 Ct; i899 1909 (2016). v. Dimaxa. 1'38 S. Ct 12.114.12.13 (2018){inter11al citations and quotations omitted). 8 C. F. R. 1003.11 (2018) (describing the role ofthe .EOIR director); 3 C. F. -.R 11103. i {describing the role of the C. IF 1003.10 (describing the role of immigration judges). 2 has 21 appellate immigration judges, including a Chairman and a' Vice Chairman.? '5 E01R1s led by a Director who 1s appointed by the Attorney General. The Director sets policy and supervises and evaluates immigration judges performance ?5 Among those policies are case management procedures that have. hiatolicallv balanced the timely determination of appeals. with the requirements. of due process; 1 7 Importantly, federal regulations have never eaplicitlv' allowed the Director to decide immigration cases or direct the result of an}r case and since at least 2.007, the Directo1 has been enp1essi} forbidden from doing so. [3 The Directoi also traditionaily has had no role. in establishing 11111111 grat1on precedent Until- recentiy, Bl A- decisions were not bin. ding on all immigration judges and the DepartInent of Homeland Seoul 11y (DHS) unless. a majority of the Board voted to publish them. 12- in other Words, no single judge or EOIR official could make. a BIA decision hinding.2U The Trump-Administration?s Attornevs General Have Eroded These Safeguards As'the American Bar Association. has noted, the. Trump administration has instituted ?specific executive policies and practices exert-mg unprecedented levels ot?contro?i over immigration judees and their job performance [that] have deteriorated public trust in the immigration court system and undermined judicial independence. 2" The Trump administration has taken a number ot'steps to- affect case outcomes by 1estricting on judges, Some of. these actions such as imposing case completion qhotasL and eliminating judges ability to administratively close cases,2 3create. a con?ict hetween immigration judges? obligation to protect due process and the terms on which thei1 job performance is measured. DOJ hasalso moved to decertify- the immigration judges? union, 15 ?5.95[003. 0th1003 0(c) (2018) Extent as provided hv' statute regulation or deiegation of authoritv From the Attornev General o-1 when acting as a de'signee of the Attorney General, the Director shalt have no authority to adjudicate cases arising under the Act or regulations or to direct the 1esult of an adjudication assigned to the Board an immigration judge, the Chief. Administrative Hearing Officer, or an Administrative Law Judge; Nothing' in this part, however; shall be construed to iirnit. the authorityr of the Director under paragraphs or 11111113 section. 8 C. 1003 1 (201.8). Prior to 2007,fede1al regulations out) provided that the Director ?shall he reSponsible for the- generat supervision of the Board of immigration Appeals- and. the Office of the Chief immigration Judge in the execution of their duties 8 F. 11.1,: 1003 (2007). hey did not authorize the Director- to adjudicate cases id 19 (1.11.11. 111113.1(g1 (211131. 3? Decisions by the Attorney Generai, which Were previously rare, goo m, were also binding. 3? Am. Bar Assoc, 20.19 [1111111111 11111111111: REFORMING 11111 IMMIGRATION 'Svsr?aM, Pno1=osnr..s 'ro innsramriauca, Fm 11111115, nun in "11111. .1111 union?nou mas-1311111111- Case 15' (Mar. 2019.). 33 Email. from James McHenry, EOIR Director, to All EOIR Judges, on" Immigration Judge Performance Metrics (Mar. 30,2018), available 3'3 Memorandum from MaryBeth? Keller, Chief Immigration udge, US. Dep?t of'Justiee Executive Office of- iinrnigration Review, Operating Policies and Procedures Memorandum 17?01: 00111111111111.1111 (Jul. 31, 2017), available at Matter 27 Ilc'itNDee. 405 (AG. '20 1311111111111- 'oanstro-Tnm, '27 Wait Dec. 27.1 (AG. 2013). ,1 which has vocally opposed these changes. 24 And in at least one instance EOIR of? cials have apparently 1eas31gned eases from a judge because the Attorney Genetal disagreed with his- rulings. 25 The Trump administration. has'also 's'ought'to' in?uenceI'imrnigration' ease outcomes by eha'nging the composition of the immigration judge cohort. We are deeply concerned about reports of overt politicized hiring ot?irnrnigration judges and the ?utter lack- 0fld1??l?iSp??l?1C-f? in the hiring It'nroce'ss.25 Congress hasdirected EOIR to ?ll ?positions with highly quali?ed individuals from a diversepool of candidates, including those with non-governmentai, private bar eXpeIrience'I. to conductfair, impartial hearings consistentwith due process.? 2? However, 1301 has changed'the. quali?cations fol immigration judges to favor those with law enforcement'esperience over those 11 1th othel types of expetienee. '3 Most recently? the administration subverted the normal process to hire six new BIA. judges with records 111 line with the Trump administration 3 anti? 11111111 gratton agenda.? All six were 1mm1grat1on judges known fot their highasyium denial rate-s: ?0 over. 80' percent compared to the national. average of 57 p'erdcent 3? wo of the new judges also had the third and fourth highest number .of- hoaid- remanded cases of all immigration judges and several were s'uhj act to complaints from Ilit1gants.3?2 Although these issues raise s1gn1?cant questions about these individuals performanCe as . judges, they were omitted 1mm the memos recommending that. these judges be'hired.33 The EOIIR Director also violated standard hiring procedure: in stead of going through the typical two-year probationary period, these judges were immediately appointed to the BIA on a-permanent; basis:34 mg Statement Nat'l Assoc of Immigration Judges, Threat to Due Process and Judicial independence-Caused by Performance Quotas on immigration Judg es. [OcLl - avaiiahle .at usa Quotes in 1.1 Performance Evaluation?l 417.13de Assoc. of Immigration Judges, Grievance Pursuant to. Artiste 8 of the Collective Bargaining Agreement Between EDIE and 2013,.availahle at in Castro i?iuzr meets '24, Mr. Castro-Turn a juvenile failed to appeartwice for his hearing. l_d. Rather than terminate the proceeding or issue a deportation order. to absentia; the presiding immigrationjudge Judge Steven Morley, administrativeiy ciosed the case ?nding that DHS failed to provide sufficient notice of the proceeding to Mr Castro-- Fum id. The Attorney General 111:: spouts reradjudicated reversed and reopened the case. I_d The Director then ordered Judge Morley to hold a hearing to that case within 14 11111111"; When Judge Morley granted .a continuance. rather than terminate the case or issue deportation order at the next court date the DOJ transferred. both Costrmenand several similar cases away from him. 1g I 3'5 Am. Bar Grunts Rsroar: Rsroemngto 1111-: Srs?rsat, Paorosats To Pensions Inna 111 the Aoruoleartou tit-'RIInvtovr-tt. Case 1? (Mar; 2019). See algg Innovation Law Lab 31 Southern Poverty. Law Center, HOW not Ianttoaarto'n Contexts- Banana A Deroam'nos Tooe 22-23 (.1 one 2019].- 3? S3. Rep. 1164272, 11135 (2019). mm i111ofmediat?doctFYiZtlE?i??CJ 1'16-1'27pdf. I 33 Am. Bar Assocs. supra note at. 22. 39 Mina-Imports t. I Kopani AG Withers Burr-promotes t-t-Jith high asylum deniuf rotten. SANS-FRANCISCO Aug. 9, available at I immigration-1' udg es~witl1~t?3i33 44.1319. 3? Misra, note I. 33 id. 33' i? Id. Under the Trump administration, oncehired, immigration jucljges receive limited training, and the training they do receive-reportedly emphasiiaes that immigration. courts are part of the Trump- administration?s enforcement efforts, rather than an independent body One former immigration judge expressed? grave concerns regarding whether new immigration judges have been. appropriately trained to he judges 1n a professionalized,lt1uly independent] immigration court ?35 Another explained that. ?there 11111 1: even. an} attempt at a prope1 training. The whole indoctrination is youh'e-not judges, you?re really enforcement. You?re really- a-?branch of DES in robes."36 Recent training sessions-for immigration judges'have emphasized the administration's enforcement priorities rather than substantive legal updates. ACcorclingto one former immigration judge, the judges? 20] 8 annual training conference ?was Do things asvi?a'st as possible. There was an overarchingtheme of'disbeiievin aliens and their claims and how to remove people fasterfm Rewriting Immigration-Laws For Ideological Purposes The Trump administration has shifted the power to decide casesavvay from judges entirely and put it in the hands of its Attorneys General, who have exercised direct control over the outcomes of'an. increasing number of immigration cases. Although the-Attorney General has long had ihe ability to sac sprints re-adj udicate immigration appeals,38 prior Attome'ys' General have used this power- sparingly. According to the Congressional Research Service, At'tdrneys General in the Obama administration exercisedjthis power'only five times in eight years. 3-9 Trump administration Attemeys General have exercised this power 16 times in just two and a half yea1s 4? These decisions? substantially 1ewrit[e] immigration law. unilaterally and with an undeniably ideological bent You also ?nalized a rule that gave himself unilateral authority to make an},r decision by the BIA Most the administration issued an interim rule that will give the EQlRDirector?a political appointee who servesat the pleasure of the Attorney immigration appeals and make his decisions binding. *3 Because-the Director'will. now have arole in deciding cases-and setting precedent, he can send a clear signal to judges regarding how they shouldirnle, and can enforce thatthro'ngh his power-to evaluate the performance of those same judges. The. exercise. of this power is inconsistent with the TNA and due process. he direct and indirect involvement of political off: cials in case? ?speci?c adjudications to the very essence oi an impartial court? because it undermine[s] immigration judges ability to perform their role as a neutral arbitrator of fact and law, ?44 35' Innovation Law Lab Southern Poverty Law Center, sigma note 26, at 1'8. '35 Id. 3? Flamed Wes Their Dream. Under Flannel! Became Unreliable, BUZZFEED NEWS, Feb. 13, 3-3 3 GER. 39 Available on request. All it}, During'the George W. Bush administration, the Attorneys General used this power only three times in the same 1 times dm ing President Bush?s eight years in office). 41 A111 Bar Assoc? anote 2_,6 at 43 Board of Immigration Appeals: Af?nnance Without Opinion, Referral for Panel Review, and Publication of Decisions as Precedents, w_ anotec 43 interim Role,- stings not_e_ . ?14 Am. Bar Assoc, sngra anote 26, at The Trump Adminis'n'ationis Gross Mism?anag?ement Prevents Immigration Courts From D'eiivering Justice The Trump administration has justi?ed many of these mcursions into the independence oi, immigration Courts. on the basis that they will mcrease. the ol the courts 1:1 However, the administration 5 gross mismanagementprevents immigration courts. from delivering justice. effectively, forcing hundreds of thousands of people to wait for their day in eou'rt. As thaner-immigrationjudges have noted, under the Trump administration ?oven on theXis and 0's level, you have this stunning incompetence and inability to run a judicial system just from the technical Standpointethey can?t hire, they can?t plan, they can?t train, they can?t get the resources out Immigration courts still. rely exclusively on volmninotis paper files, and lacksuf?cient support staff or translators to function The administration has also repeatedly redirectedjud'ges to focus on new-?priority cases.? causing chaosfi3 When. particular cases are expedited, pre'sched uled cases are moved months or years into the "future-49 For example, when the Trump administration ?deployed? immigration judges to border courts-in 2017-, more than 20,000 cases-were delayed in the immigration courts they left behind.5U As a result. the immigration case backlog has only increased ballooning f1 om 504, 394. caSes in 20165] to over .1 million by Septembm 2019.1 The, average wait ti-i?me for cases in immigration average time a case currently on the docket has been openmhas increased from 3524 days in 1998. to 696 days this year.53 Even as the administration has requestedm-and Congress has appropriated?additional funds?1 EOIR cannot ?answer simple budgetary qtiestions? from the Senate Committee-on Appropriations to justify hotv'th'ey are Spending. their money-.55 Norhave they implemented basic procedural improvements that would speed the resolution of cases and reduce the immigration 'court backing, like instituting-an electmnic case management systemii? *5 Jeff Sessions, Attorney General, US. Dep?t of Ju_st_ice,_Remarks to the Executive Office'for Review Legai Training Program (Jun. l1, 2013}, available at. . '45 Innovation Law Lab. 3; Southern. Poverty Law Center, some; note 26, 111.20. 47' Id. ?5 at 19. 349' Id. 5? 1d,, at 20'. 5 Nolan Rappaport, finn'tr'grarion' courts irredeer?nobiy c?iyimeriono! 111111011 the 1311'in of softness, Sept- 23, 20.19,.evaiiableat iarati 01115462 5 T7a'imm . ?Immigration Cam :1 Arrive Backing Sis-passer .0112 Million, TMCImnuoaanon, [last visited Sept. 30, 20.19). ?Average Time Pending'Cases?Hrwe Been 11111111113111 Immigration Comes- as of A 11311.11 .20! it, back'loefapprep? backloa {last visited Sept. 5? Press Release, Dep?t 23, 20 i 8-), available at at rfeoir?announces-lar est-ever-immi ration-'ud e-investiture; Gregg Re and Jake Gibson, DOJ marathon 100 ottoman to help eieor massive osmium backlog, NFWS, Mar .1 l, 2019. 55 S. Rep. 1 16-12? at. 35 (20.19), availabie at appropriations Senate. %20Repon%20 16- pdf. 55 I'd. This gross mismanagement further erodes immigration courts? ability to act as fair and neutral arbiters of the law, amplifying the pressures onjudges to decide cases quickly, not carefully, and in accordance with the administration?s priOrities. Conclusion While immigration courts reside within the executive branch, they should not be merely a tool to achieve desired policy outcomes. The administration?s recent decisions to subvert the normal hiring process to promote partisan judges, and to increase political in?uence over individual immigration cases, has undermined public con?dence in our immigration courts. These actions create the impression that cases are being decided based on political considerations rather than the relevant facts and law. The appearance of bias alone is corrosive to the public trust.? The United States deserves an immigration court system that is independent, impartial, and functional. Parties appearing in immigration court are equally entitled to a timely hearing in front of a neutral arbiter, consistent with the requirements of the INA and the Constitution. In order to ful?ll our obligation to oversee immigration courts and ensure that our laws are applied fairly, we request a staff-level briefing addressing these concerns. We also ask that you provide us with the following: 1. DJ Copies of all written policies related to the hiring of trial-level and appellate immigration judges. If no written policy exists, please provide a detailed description of the hiring of these judges including any changes to the hiring process since 2017; Cepies of all recommendation memos written to advocate for the hiring of trial-level and appellate immigrationjudges from 2017-present; Copies of all materials for trainings of immigration judges from 2017'?present; Copies of any documents related to the development and implementation of case processing times and quotas. If no written policy exists, please provide a detailed description of how these policies were developed; Copies of any documents related to any employment actions taken against immigration judges as a result of their case processing times and quotas; Any internal guidance that exists governing when the Attorney General or the EOIR Director should make their decisions binding; and Any internal guidance that exists governing when the Attorney General will certify an immigration case to himself. Please provide these answers and documents by no later than March 13, 2020. Thank you for your prompt attention to this matter. Sincerely, Sheldon Whitehouse Ric ar .1. Durbin United States Senator United States Senator ?Mas 136 at I909. - l' Maziebk. Hirono Richard Blumenthal Un' States Senator United States Senator mala D. Harris United States Senator Patrick Leahy I United States Senator United States Senator