人兽性交

鈥淭o Do Equal Right鈥�

When Reynaldo Castro-Tum was ordered deported on July 26, 2018, the record of proceedings鈥攖he official record of what takes place in a U.S. immigration court鈥攁ppeared deceptively normal: A judge heard the case and, based on the record, issued a ruling. That is what judges in courts throughout the United States do every single day. In the federal court system, as in state court systems, judges strive to do 鈥渢heir level best to do equal right to those appearing before them,鈥� as Chief Justice John Roberts has said.

That, though, is not what happened.

What the official record of proceedings hides, this report reveals: Castro-Tum, like so many others in immigration court proceedings, was a victim of the attorney general鈥檚 weaponization of the immigration court system as a mechanism for deportation, not fair adjudication.

If the measure of a judicial system turns on its ability to fairly apply law to facts鈥攖hat is, to do 鈥渆qual right to those appearing鈥� before the court鈥攖hen the U.S. immigration court system has failed. For decades, attorneys general have neglected the immigration court system and manipulated it for political ends, resulting in a weakened institution plagued by dysfunction. Since 2017, the attorneys general of the Trump administration have gone even further in usurping power by unlawfully exploiting the statute and regulations in order to weaponize the immigration courts to achieve maximum removals irrespective of fairness.

Take the case of A-B-: In July 2014, A-B- sought refuge at the southern border of the United States from decades of domestic abuse in El Salvador. Unprotected by the Salvadoran authorities and unable to otherwise escape her persecutor, she fled to the United States to seek asylum. A-B- had no idea that her escape from one ordeal would lead to the beginning of another. In December 2015, her asylum claim was denied by an immigration judge with a long history of bias against claims involving domestic violence.

After what should have been a successful appeal, the judge denied the case yet again on remand. The denial exemplified the immigration appellate process鈥檚 failure: The Board of Immigration Appeals once again issued a decision that the judge chose to ignore. Then-Attorney General Jeff Sessions subsequently took advantage of the situation by 鈥渃ertifying鈥� the case to himself鈥攖hat is, he used his controversial regulatory power to take over the case. He published a political decision that overruled well-established precedent and acted as a dog whistle to his 鈥渏udges鈥� to categorically deny asylum to survivors of domestic violence and Central Americans fleeing gang violence.

The attorney general's authority over the immigration courts has subjected the courts to intense political pressure. After the 2016 election, Jeff Sessions, left, who campaigned for Donald Trump and backed his anti-immigrant platform, oversaw the courts as attorney general. (Photo by AP IMAGES/John Bazemore)

Castro-Tum and A-B- are, sadly, not unique. Immigration courts routinely hand down such politicized deportation decisions. Today, more than 800,000 cases are pending in our nation鈥檚 immigration courts. Many involve vulnerable individuals who fled violence in their home countries and seek refuge in the United States. U.S. law, incorporating international treaty commitments, makes asylum available to applicants who have a well-founded fear of persecution on account of one of five protected grounds: race, religion, national origin, political opinion, and membership in a particular social group. For these individuals, the outcome of their cases can be a matter of life or death.

One of the core responsibilities of the Executive Office for Immigration Review, an administrative court system under the control of the attorney general, is to decide asylum claims. While EOIR was intended to provide a fair and independent adjudication process, this vision has never materialized. In speaking with immigration attorneys across the country, the authors of this report have heard first-hand accounts of how the attorney general鈥檚 unitary power shapes adjudication practices that are biased, inconsistent, and driven by politics.

Key Observations from Attorney Focus Groups

Attorneys tell of judges who fail to apply binding legal standards and make decisions based on illegally invented rules. They report abusive treatment of noncitizens and counsel alike, describing judges who routinely belittle and retraumatize survivors of persecution and scream at their attorneys without cause or justification. And they recount experiences with judges who decide cases before holding a hearing, who 鈥減rosecute from the bench鈥� and are 鈥渇aithful to the government, but not faithful to the law.鈥� No one in the unitary system holds these judges accountable. The normal check in an effective judicial system鈥攖he appeals process鈥攊s equally infected by the influence of the attorney general.

Many, such as the American Bar Association Commission on Immigration, have predicted the collapse of immigration court system. No reform initiatives undertaken thus far have mattered鈥攂ecause none of them have addressed the underlying structural problem caused by the attorney general鈥檚 control. Judicial independence is the hallmark of modern adjudication systems that adhere to the rule of law. By law, the attorney general has a constitutional and statutory obligation to create an immigration court system that works fairly and uniformly.

Instead, attorneys general have long neglected this duty to ensure that immigration judges act fairly and independently and have repeatedly manipulated the courts for political ends.

This report describes how unitary attorney general control over the immigration court system鈥攊ncluding proceedings before immigration judges and the BIA鈥攈as caused irreparable systemwide failure. The report begins by examining the origins of the immigration court system, including the principles on which it was based and the problems its creation intended to solve. Next, the report describes the attorney general鈥檚 leadership responsibility over the immigration court system, deriving from his constitutional and statutory duty to create a court system that actually works: a system that is fair.

The report then elaborates on the attorney general鈥檚 failure to make the courts work, both by neglecting to ensure the lawful operation of EOIR and by abusing his power in order to manipulate and ultimately weaponize the court system toward enforcement-oriented ends. It concludes by echoing other respected organizations鈥� recommendations that, to achieve a fair and functioning judicial system, immigration adjudication must be moved outside the attorney general鈥檚 control into a truly independent Article I immigration court that includes merits-based appointments, tenure guarantees, and effective mechanisms of internal accountability and appellate oversight.

From a Neglected Court to a Weaponized Court

After decades of neglect and abuse by prior attorneys general, the Trump administration is weaponizing the immigration court system against asylum seekers and immigrants of color. There is no doubt that the immigration court system is in a state of legal and moral collapse, unable to consistently provide fair and equal treatment to the individuals who appear before it. Prior attorneys general have failed to adequately adhere to the rule of law by allowing pervasive bias and unlawful procedures to take root.

At the same time, attorneys general have abused their power by allowing enforcement priorities to usurp an adjudicatory process that is supposed to be impartial and fair. This enforcement focus has reached a new level under the Trump administration, as the attorneys general have actively sought to turn the immigration court system into a weapon of deterrence and deportation.

The Chronic Neglect of the Immigration Court System

Overwhelming evidence shows that the office of attorney general has long allowed immigration judges to violate noncitizens鈥� rights in a systemic, pervasive manner that undermines the integrity of the court system. Judicial bias is rampant within the immigration court system, with immigration judges across the country failing to provide fair, neutral, and consistent adjudication. Radical variations in case outcomes across the country demonstrate that courts are failing to apply immigration law in an impartial and uniform way.

Some immigration judges have created courtroom-specific sub-regulatory rules, unsupported by any legal authority, that function to deprive respondents of their due process rights. Judges also violate respondents鈥� procedural rights through unilateral docket changes and unprofessional behavior. These shortcomings are exacerbated by the failure of the administrative appeals process to fulfill its intended role of correcting errors鈥攂oth legal and procedural, purposeful and accidental鈥攎ade by immigration judges.

Set against the fair and impartial ideal, the attorneys general have failed to correct clearly violative behavior by immigration judges. Without checks and balances in place to ensure that the system functions properly, biased decision-making has become the norm in immigration courts nationwide.

The attorney general has tolerated bias in the immigration courts

Despite the requirement of an impartial adjudicator described earlier in this report, complaints of biased decision-making have surfaced regularly since the founding of the contemporary immigration court system. The litany of reports over the years demonstrates that all too often, judges鈥� conscious and implicit biases鈥攂ased on factors including race, gender, class, a respondent鈥檚 marital or parental status, or the judge鈥檚 personal feelings about immigrants鈥攃olor their views of respondents鈥� claims and may determine case outcomes. Even absent conscious bias, institutional directives and structural pressures prevent judges from fully considering the law and facts of each case and instead encourage bias in the form of categorical prejudgment of cases.

In the early 1980s, the newly formed immigration courts faced immediate critique for their biased treatment of asylum seekers from Haiti and Central America. Advocates for Haitian refugees in the early 1980s expressed concerns about bias against their clients; one attorney characterized the immigration court as 鈥渘ot so impartial a tribunal as one might hope and expect to find鈥� in the United States.

And in 1985, advocacy groups filed a class action lawsuit alleging, among other things, nationality-based discrimination in the application of asylum laws resulting in disproportionately low asylum grant rates for asylum seekers fleeing civil war in El Salvador and Guatemala. After extensive discovery, the government agreed to a settlement allowing class members an opportunity to submit new applications for asylum and receive de novo鈥攐r new鈥攁djudication of their claims. The settlement agreement announces, tellingly, that the same legal standard for asylum must apply to people of all nationalities and that foreign policy considerations should have no bearing on the determination of whether an asylum applicant has met that standard.

Studies show that by the late 1980s, the EOIR was already failing to deliver fair and uniform treatment of asylum claims in other contexts. The first empirical study of immigration court proceedings found that the asylum adjudication system was still based on ad hoc rules and standards, and that the decision-making process continued to be influenced by improper considerations, including social class, cultural factors, ideological preferences and political judgments.

Based on a two-year study of one immigration court, the researchers reported that 鈥渁lthough extensive documentation exists of human rights abuses and high levels of politically motivated violence in Guatemala, Haiti, and El Salvador . . . no Guatemalan or Haitian applicant and only one Salvadoran was granted asylum during the study period.鈥� The study also found that immigration judges approached asylum claims with 鈥減resumptive skepticism鈥� and often questioned respondents the way a government attorney would on cross-examination, rather than conducting proceedings in a fair and neutral manner.

Today, our immigration courts are infected by the same bias that was rampant in the 1980s. Immigration judge bias manifests itself in the form of bullying and harassment from the bench, unsupported negative credibility determinations, and xenophobic and prejudiced statements. Some expressions of bias are made off the record, making it particularly hard to hold judges accountable. Some immigration judges also appear to prejudge cases, relying on their own views of the respondents鈥� characteristics or the type of claim instead of on governing law.

The continued presence of bias is vividly demonstrated by the huge variation in asylum grant rates across the country. Asylum case outcomes are 鈥渉ighly dependent upon the identity of the judge assigned.鈥� The tremendous disparities in asylum grant rates across judges 鈥渟how the amount of leeway immigration judges have and the impact their biases can have if left unchecked.鈥� In 2017, immigration judges granted asylum at rates ranging from 97 percent to 0 percent. These discrepancies persisted both between jurisdictions and within courts in a single jurisdiction. Such variation has been documented for at least a decade, evidencing immigration judges鈥� failure to determine case outcomes through the impartial, uniform application of immigration law.

Although judges鈥� dockets vary in the types of cases they are assigned, the huge range and regional patterns of disparate grant rates merit close scrutiny. Today, 鈥渁sylum-free zones鈥� like Atlanta, Georgia; Charlotte, North Carolina; and El Paso, Texas鈥攚here immigration judges deny asylum applications at rates much higher than in other jurisdictions鈥攁re further evidence of a system that allows judicial bias to reign unchecked.

Our focus group discussions with immigration practitioners highlighted the failure of attorneys general to address rampant bias in the courtroom. Attorneys reported that some judges鈥� decisions are shaped by their 鈥減erceptions of people鈥檚 home country, and their own personal perceptions of what might motivate someone鈥濃�攕uch as the misconceived notion that 鈥渁ll young men from El Salvador are here to work.鈥�

One practitioner described a judge who believes that a respondent could not be homosexual if he or she had a child with a person of the opposite sex. Judges have also made prejudicial comments to respondents who use preferred gender pronouns that do not correspond with the judges鈥� preconceived impressions of the respondents鈥� gender identities. Attorneys also reported that some judges discriminate based on ethnicity or country of origin, such as by displaying anti-Latinx bias on the record or making broad statements that they 鈥渄on鈥檛 believe any Chinese asylum claims.鈥� Judicial bias against Central American respondents surfaced particularly frequently in focus group discussions.

Legal practitioners also drew attention to the presence of judicial bias against attorneys. For example, attorneys of color reported being asked if they were the client or 鈥渢reated like the neighbor who came to help out.鈥� Others indicated that some judges are 鈥渟nippy鈥� with attorneys of color or attorneys with accents.

Female attorneys reported that certain judges interrupted them more frequently, telling them to 鈥渃alm down,鈥� and commenting on their clothing in court. In one case, a lawyer was told she was granted a stipulation 鈥渂ecause [her] perfume smelled good.鈥� Focus group members also reported that female attorneys have faced sexual harassment from judges on the Atlanta bench.

Our focus groups also revealed a strong consensus among practitioners that immigration judges favored the government鈥檚 position. Judges are described as 鈥減rosecuting from the bench,鈥� 鈥渇orgetting they鈥檙e not [Department of Homeland Security],鈥� and 鈥渁lways do[ing] what the government says.鈥� Practitioners spoke of judges as 鈥渄oing dirty work for the government鈥� and 鈥渂eing faithful to bias to the government, but not faithful to the law.鈥�

One attorney explained that judges 鈥渁lways look at [the law] from an enforcement perspective . . . in the light most negative to the respondent.鈥� Another practitioner spoke of 鈥渢he fallacy that there is separation between the EOIR and Immigration and Customs Enforcement,鈥� stating that 鈥渋t鈥檚 laughable that [immigration judges] then go and pretend to have some sort of judicial independence.鈥� In some cases, practitioners feel that judges 鈥渄o all the work for government attorneys鈥� in making the government鈥檚 case.

Judges鈥� perceived bias is also manifested through preferential treatment of government attorneys. In San Francisco, attorneys noted that DHS attorneys were given favorable treatment, such as being allowed to turn in documents late or being aided by judges during a hearing when they had forgotten a legal standard. In another court, an attorney witnessed a pro se case in which last-minute evidence provided by the government was admitted by the court, although the respondent did not even receive access to the evidence until after the hearing.

The attorney general permits judges to enact sub-regulatory and arbitrary rules, creating disuniformity and impeding fair adjudication

As explained earlier, respondents in immigration proceedings must receive a full and fair hearing in line with constitutional due process and related statutory and regulatory rights. However, many immigration judges have adopted individualized 鈥渟ub-regulatory鈥� rules that often impede a respondent鈥檚 ability to apply for asylum, present evidence, or raise particular legal claims. Unlike standing orders in a district court, these sub-regulatory rules are generally not published or made available to attorneys or respondents. While some judges hand out copies of these rules in an ad hoc manner, others merely apply them as a matter of course. These rules often have no basis in the statute or regulations and generally serve only to impose unnecessary burdens on respondents.

Filing asylum applications: Under the INA, a respondent may file an asylum application that is complete and in compliance with the instructions that accompany the required form. However, practitioners from around the country report that immigration judges often impose additional requirements and reject applications that fail to comply with them. For example, attorneys in multiple courts spoke of judges requiring handwritten declarations from respondents, to minimize 鈥渋nterference鈥� by attorneys. In Charlotte, at least one judge requires unrepresented respondents to submit multiple copies of their asylum applications, accompanied by personal declarations.

Other judges require respondents to specify in writing a limited number of 鈥減articular social groups鈥� on which their claims are based鈥攚hich often requires familiarity with asylum law and court precedent鈥損recluding the subsequent development of different legal strategies in consultation with counsel. Judges also limit respondents鈥� ability to present their cases by requiring asylum applications to be filed on short time frames鈥攆or example, within a week of a respondent鈥檚 master calendar hearing. These restrictions have particularly harsh implications for unrepresented respondents and for respondents who cannot write in English.

Such judicially imposed requirements for filing an asylum application can greatly restrict a noncitizen's ability to present his or her case. Many asylum seekers are unrepresented and traumatized by the experiences that prompted them to flee. These factors often make it difficult, if not impossible, to fully describe the experiences underlying their asylum claims. However, if asylum seekers provide an incomplete account of their claims at the outset of a case, they may unknowingly undermine their credibility or risk having their claims rejected.

Restricting evidence: Even after an asylum application has been accepted, respondents in certain jurisdictions routinely confront sub-regulatory rules that limit their right to a 鈥渞easonable opportunity . . . to present evidence鈥� in support of their cases. Attorneys reported numerous experiences with individual hearings being scheduled in fewer than 45 days鈥攁 practice which is unlawful for nondetained cases.

Judges in multiple courts fail to comply with regulations for the submission of evidence, in some cases imposing a submission deadline three or six months in advance of a respondent鈥檚 hearing鈥攔ather than the 15 days dictated by the courts鈥� own procedures manual. These ad hoc deadlines cause many problems, including preventing asylum applicants from introducing evidence of rapidly developing changes in country conditions or critical documents received from another country after the deadline.

Even when evidence is submitted, practitioners note that it is often not properly considered. One judge reportedly refused to consider evidence because it was 鈥渢oo graphic.鈥� Another practitioner reported submitting evidence to the court, only to have the judge subsequently say the court had never received the documentation.

In a different case, a judge lost a respondent鈥檚 entire file and made the respondent鈥檚 attorneys recreate it. One practitioner also explained that judges may weigh evidence inconsistently, giving little to no consideration to a respondent鈥檚 supporting declarations while giving full weight to any police report, even if presented with conflicting evidence. Judges may also interfere with interpretation. In one case, a judge challenged an interpreter鈥檚 word choice, effectively talking the interpreter out of the persecutory language that directly supported the respondent鈥檚 claim.

Limiting testimony: Attorneys also report judges placing numerous limitations on testimony by experts or other witnesses, which can be crucial to establish a respondent鈥檚 credibility or the country conditions underlying his or her asylum claim. Some judges cut off witnesses, citing time constraints. Others require a written statement from witnesses, but do not allow in-person witness testimony.

Attorneys also report that many immigration judges undermine their ability to call expert witnesses. For example, some judges broadly prohibit telephonic testimony by expert witnesses, who may be at universities, research institutions, or private firms throughout the country. This limitation prevents respondents from presenting key evidence in the case.

Judges also limit respondent testimony and attorney involvement in problematic ways. Attorneys in El Paso spoke of intense pressure from judges to forego direct examination of their clients. As one practitioner explained, 鈥渢here is a lot of pressure to buckle, because you are also relying on [the judge鈥檚] subjective views.鈥� Other judges forbid direct examination entirely if the respondent has submitted a written declaration to the court. Some judges call clients to testify and examine them from the bench before permitting them to present their stories through direct examination.

As one attorney explained, the judges 鈥渂asically create their own narrative with self-serving yes or no questions鈥攕omething that fits the judge鈥檚 preconception and has no basis in your client鈥檚 actual story.鈥� Another described judges asking questions to damage the case: 鈥淭hey aren鈥檛 looking to get the full story, they just want something to hang their denial on.鈥� Other judges refuse to allow whole categories of testimony because they 鈥渄on鈥檛 need to hear about鈥� certain topics. By curtailing the right to present evidence, such sub-regulatory and arbitrary rules limit respondents鈥� ability to fully develop their legal claims.

The attorney general permits immigration judges to engage in unilateral docket changes that undermine respondents鈥� right to a fair hearing

Respondents鈥� rights to a fair hearing have also been consistently undermined by immigration judges鈥� unilateral docket changes. In many courts, immigration judges reschedule cases鈥攅ither advancing or delaying鈥攚ith little or no notice to respondents and their attorneys. These trends have impeded asylum seekers from adequately presenting their cases and interfered with their right to counsel.

Attorneys report a huge amount of uncertainty in case scheduling. Practitioners describe judges鈥� case docketing as 鈥渆xasperating and ridiculous,鈥� with procedures that can feel 鈥渓ike a guessing game.鈥� Practitioners recounted having hearings unexpectedly rescheduled on the day they were supposed to take place and waiting by the phone for five hours for a telephonic hearing. One attorney reported that practitioners cannot rely on the court鈥檚 hearing schedule, as cases are often taken off the calendar the day before the hearing.

Other judges have called attorneys the day before a hearing to tell them that the hearing would be held hours earlier in the day. One attorney described driving a long distance for a merits hearing that was then canceled, without notice, because the judge had a doctor鈥檚 appointment. Another described arriving for a scheduled hearing only to be told that the judge was 鈥渇inished hearing cases鈥� for the morning.

Practitioners also report that some judges often move forward merits hearing dates without adequate notice to respondents or their counsel. One attorney indicated that virtually none of the children on the El Paso juvenile docket in late 2018 ever got notice of their hearings. Another spoke of being in court and finding out that she had another hearing of which she had never received notice. Even when the court claims notices have been mailed, they are often not received; one attorney said this happens to her clients at least 20 times a year.

Lack of notice limits respondents鈥� time to gather evidence and impedes their ability to fully prepare for their hearings. Docket changes may also interfere with witnesses鈥� ability to testify. One attorney recounted an experience when a witness from El Salvador flew in to give testimony; when the hearing was arbitrarily rescheduled, the testimony was lost because the respondent could not pay for the witness to fly back.

In many cases, attorneys report an inability to prepare for or even attend a client鈥檚 hearing due to schedule changes. Attorneys recount that judges have held individual hearings without counsel present, or have effectively forced attorneys to appear telephonically rather than in person due to last-minute rescheduling. In addition to undermining attorneys鈥� ability to effectively represent their clients, such rescheduling leaves attorneys unable to manage their caseloads and resources, making them reluctant to take new cases when the timing of current cases is so unpredictable.

Practitioners also indicated that some scheduling restrictions appear to reflect judges鈥� predetermination of respondents鈥� claims. Attorneys report that judges schedule cases based on the perceived strength of a case, prioritizing cases they think will not be granted鈥攁nd at times even writing 鈥渨eak鈥� on the scheduling order itself. Even when a judge does not explicitly deny in advance, one practitioner explained that 鈥渙bviously鈥� the judge intends to deny when merits hearings are scheduled a scant 30 minutes apart.

Some judges also show little willingness to accommodate the health and safety of individuals in their courtrooms. When heavy snow hit Charlotte, making travel unsafe, one attorney was told by the court administrator to stay home as a safety precaution; when she did, the court issued an in absentia removal order in her client鈥檚 case.

The attorney general has failed to address unprofessional conduct on the immigration bench

The immigration court system is plagued by a lack of professionalism on the part of many immigration judges. Plainly, no court system can be said to work fairly when unprofessional conduct by the judges is tolerated. Practitioners report judges who fail to adequately understand and apply the law, as well as judges who routinely demonstrate a temperament inappropriate to their adjudicatory role. The attorneys general have tolerated this unprofessionalism at a systemic level by failing to create a transparent mechanism that promotes accountability for such misconduct.

Legal incompetence and manipulation: While many practitioners surveyed characterized immigration judges as 鈥渟mart鈥� and 鈥渃ompetent,鈥� some shared experiences with judges who fail to understand or apply appropriate legal standards. Some attorneys spoke about 鈥渢eaching鈥� judges about the law and seeing recurring legal errors in judicial decisions, while others described immigration judges who fail to stay up to date on relevant case law.

People line up outside a U.S. immigration office with numerous courtrooms in San Francisco. (Photo by AP images/Eric Risberg)

Another practitioner observed that 鈥渟ome of the judges really don鈥檛 understand the evidentiary rules.鈥� One judge told counsel that 鈥淚 don鈥檛 like objections鈥� and 鈥渢he Federal Rules of Evidence don鈥檛 apply, so I can basically do whatever I want.鈥� Other judges know the law but fail to follow it. One attorney in San Antonio described experiences with a judge who stated, on the record, that 鈥淚 recognize that this [decision] is contrary to the statute.鈥� Another in Kansas City spoke of judges 鈥渃hoosing to ignore Supreme Court precedent.鈥�

Varying levels of familiarity with immigration law and procedure may also contribute to an acknowledged lack of uniformity in immigration judges鈥� application of the law. Attorneys said that the same particular social groups that are recognized in courts like Arlington and Baltimore are being routinely rejected in Charlotte. Practitioners across focus groups reported that judges 鈥渄o not apply the same standards, and it does affect the outcome of cases.鈥� Attorneys reported that even judges within the same court may have highly inconsistent standards for the level of evidence required to support claims for relief. Practitioners speculated that this lack of uniformity was sometimes due to factors such as the judges鈥� biases about a certain country of origin or regarding particular attorneys, but often there was 鈥渘o rhyme or reason鈥� behind the discrepancies. One San Francisco attorney described how judges applied standards differently based on 鈥渉ot topics鈥� in the news.

Among judges who were knowledgeable and competent in immigration law, practitioners noted that many manipulated it in a biased manner, stating that 鈥渢he application of the law is tilted鈥� and that judges 鈥渒now how to use law against you.鈥� One Charlotte attorney explained that judges 鈥渁re up to date on the law and then interpret it in a way to deny as many cases as possible . . . They are knowledgeable about the law but they are not issuing decisions in accordance with the law.鈥�

Lack of judicial temperament: Although the EOIR鈥檚 own ethical guidelines direct that immigration judges 鈥渟hould be patient, dignified, and courteous, and should act in a professional manner,鈥� practitioners across focus groups described judges acting 鈥渋n a manner that is not befitting a judge.鈥� Attorneys in multiple courts also noted differences between judges presiding over detained versus non-detained dockets, with some commenting that judges on detained dockets were more 鈥渧icious鈥� and had more 鈥渁ntagonism鈥� than judges on non-detained dockets.

Many attorneys shared experiences of judges鈥� aggressive outbursts. Attorneys described how judges have yelled at and insulted expert witnesses. Some judges were reported to be 鈥渧ery abusive鈥� to respondents, even when speaking through an interpreter. In one case, a judge threw an applicant鈥檚 asylum application (I-589) on the ground for a perceived lack of detail, announcing that 鈥渓et the record show I threw the I-589 on the ground.鈥� A San Antonio attorney recounted a judge becoming so irate about an attorney speaking on the record at a credible fear review that he stormed out of the courtroom. An Atlanta judge was described as 鈥渧eins popping, slamming [his] chair, slamming files, [and] screaming.鈥�

Attorneys spoke at length about the abuse immigration judges inflict upon the respondents, witnesses, and counsel in their courtrooms. Attorneys described both themselves and their clients as 鈥渢errified鈥� of some judges. In our focus groups, judges were described as 鈥渃austic,鈥� 鈥渃reepy,鈥� 鈥渆vil,鈥� 鈥渓ike a poisonous spider,鈥� 鈥渉ostile,鈥� 鈥渘asty,鈥� 鈥渧ery petty,鈥� 鈥渘eedlessly abusive and patronizing,鈥� a 鈥渟ociopath,鈥� and someone who 鈥渞ips [clients] to shreds.鈥� Another described 鈥渓ots of incidents of a judge just saying bizarre and inappropriate stuff [and] sometimes just directly being a jerk.鈥�

Practitioners also described how judges routinely demean and belittle the respondents who appear before them. Attorneys indicated that judges 鈥渢alk down to respondents鈥� and are 鈥渟o patronizing and so condescending.鈥� One attorney recounted an asylum case in which the judge told her client, who had never received formal schooling, that the client could not proceed with testimony 鈥渋f we鈥檙e not going to use proper pronouns.鈥� Another attorney reported that a judge鈥檚 hostile treatment of her client 鈥渞eally freaked [the client] out,鈥� causing him not to want to discuss his asylum claim based on his sexual orientation.

Some judges cut respondents off harshly, snap their fingers for more rapid replies, or ask 鈥淎re you finished yet?鈥� Others display a jarring lack of interest in the cases before them. One judge in Charlotte was described as 鈥渟pend[ing] the majority of the individual [merits hearing] on the phone, you can see her scrolling. Then if she misses something she blames the respondent for confusing her.鈥� Another judge regularly closes his eyes and leans back during respondents鈥� testimony, giving the impression of being asleep.

Attorneys also spoke about judges re-traumatizing clients in court. Some judges are highly dismissive of much of the trauma that comes before them. One judge summarized intense testimony of repeated sexual violence as sounding 鈥渁dmittedly awkward;鈥� another characterized an attempted rapist as a 鈥渞ejected suitor.鈥� In another case, the judge dismissed abuse to a Central American woman, claiming 鈥渢his doesn鈥檛 happen.鈥�

Recounting a judge鈥檚 intimidation of a client with documented psychological trauma and physical and sexual abuse, one attorney recalled that 鈥淸the judge was] yelling at the client . . .she was about to lose it because of how the judge was treating her.鈥� Another attorney similarly reported a judge鈥檚 鈥渆xtremely abusive鈥� treatment of her client on the stand while she was testifying about traumatic sexual assault; the judge鈥檚 behavior was so destructive that it caused the attorney to withdraw from immigration practice for a period of time.

The Board of Immigration Appeals has failed as an administrative appellate body

The Board of Immigration Appeals was created by the attorney general in 1940 and consolidated into the EOIR in 1983. As an administrative appeals body with jurisdiction to review all removal orders issued by immigration judges, the BIA is supposed to 鈥減rovide clear and uniform guidance 鈥� on the proper interpretation and administration of the [INA] and its implementing regulations.鈥� However, the BIA has done nothing meaningful to create uniformity in immigration adjudication or to hold judges accountable for deviations from the rule of law.

The failure of the BIA is evident everywhere one looks. In addition to the unchecked abuses and ineptitudes of many immigration judges, the failure of the appellate system is vividly illustrated by appalling discrepancies in case outcomes, both within and between courts. These disparities underscore the reality that the BIA is neither developing a helpful body of case law nor engaging in sufficient error correction to guide immigration judges in rendering more uniform decisions. Indeed, the BIA itself has issued conflicting decisions on the same legal question on the same day.

The BIA鈥檚 dysfunction has created a culture in which immigration judges are 鈥渞eally unregulated鈥� and allowed 鈥渢o just flap the handle and do things that aren鈥檛 right under the law.鈥� The BIA鈥檚 effective abdication of its appellate role also fosters a court system where, according to attorneys surveyed, judges act like 鈥淚鈥檓 God鈥� in the courtroom and are 鈥渦ntouchable.鈥�

The BIA鈥檚 ability to engage in its core function of uniformly and fairly administering the immigration laws is also impaired by the attorney general鈥檚 control over its structure and members. The attorney general has made it very clear that BIA members are merely 鈥渁ttorneys appointed by the Attorney General to act as the Attorney General鈥檚 delegates in the cases that come before them.鈥�

Structurally, the BIA鈥檚 independence in adjudication is illusory because, by regulation, its members are subordinate to the attorney general. For example, in 2002, then-Attorney General John Ashcroft intentionally reorganized the BIA by 鈥渞eassigning鈥� BIA members with whom he ideologically disagreed. The message he sent was clear: 鈥渞ule against the government at your personal peril.鈥� Separately, and just as problematically, the attorney general exerts control over BIA members by giving them personal stakes in the outcome of cases through individual performance reviews.

Through the EOIR director, the attorney general also exerts control over all of the cases that any BIA member reviews in his or her adjudicatory capacity. This case assignment power creates the potential for ideological assignments and, as the case of Castro-Tum suggests, the EOIR director has not hesitated to use the case assignment power to rig outcomes.

Former Attorney General John Ashcroft, left, reorganized the Board of Immigration Appeals in 2002 by "reassigning" BIA members with whom he disagreed.
(Photo by Ap images/Mike Derer)

Manipulation of case assignments can deprive an individual of the right to a fair hearing and contravenes basic principles of due process. While the regulations state that the EOIR director cannot 鈥渄irect the result of an adjudication鈥� that limitation is largely meaningless because the regulation also provides that 鈥渘othing in this part shall be construed to limit the authority of the Director鈥� to assign and reassign cases鈥攖hat is, to manipulate the docket to predetermine case outcomes.

The attorney general has also weakened the BIA鈥檚 legitimacy by adopting policies that encourage BIA members to use shortcuts in rendering decisions. Rather than being required to produce well-reasoned decisions, regulations adopted in 2002 permit BIA members to issue 鈥渟ummary affirmances鈥� that essentially uphold an immigration judge鈥檚 decision with a single sentence. In announcing these reforms, then-Attorney General John Ashcroft explained that the board 鈥渘eeded a complete overhaul鈥� as it 鈥渉ad become a bottleneck in the system, undermining the enforcement of our country鈥檚 immigration laws鈥� and encouraging 鈥渦nscrupulous lawyers to file frivolous appeals.鈥�

One byproduct of such streamlining has been to decrease 鈥渢he quality of [immigration] decision-making at the administrative level鈥� writ large. Additional streamlining reforms, which would further undermine the integrity of BIA adjudications, have recently been proposed by Attorney General William Barr.

The Weaponization of the Immigration Court System

Decades of intentional, disruptive neglect of the immigration court system were not enough for the Trump administration. In President Trump鈥檚 view, immigration judges would get in the way of deporting the maximum number of noncitizens. The Trump administration needed weapons to wield against asylum-seekers and other noncitizens. And so, beginning with President Trump鈥檚 inauguration, the Trump administration has been successfully converting the immigration courts into such weapons. The administration鈥檚 ultimate goal is for the immigration courts to become enforcers of deportation.

While the attorneys general of the Trump administration are certainly not the first to attempt this weaponization strategy, the intensity and zealousness of this administration鈥檚 efforts are unmatched in the EOIR鈥檚 history. The intent is clear not only from public statements of the attorneys general and other members of the administration, but also from the multiple steps already taken to transform the system into a weapon of deportation and deterrence.

This weaponization has taken many forms, including the recasting of judges as enforcement officers; the encouragement of bias against asylum seekers and their counsel; the imposition of case quotas, which destroy impartiality by threatening judges鈥� job security; the politicization of immigration judge hiring and firing; and the aggressive use of the certification power to eliminate important docket management tools and encourage the prejudgment of cases.

The attorney general has attempted to transform immigration judges into deportation enforcers

Under the Trump administration, immigration judges are viewed as the attorney general鈥檚 tools for enforcing deportations, not as independent case-by-case adjudicators. Over the past two years, the attorneys general have plainly encouraged, rather than discouraged, biased decision-making. As one former immigration judge has described, the Trump attorneys general 鈥渉ave had no interest whatsoever in fairness, impartiality, and due process. Their only interest has been in producing more removal orders and jiggering the system to do that . . . I don鈥檛 even think there鈥檚 a pretense of due process anymore.鈥�

The attorney general has directed judges to enforce an agenda of deterrence and deportation

Under the Trump administration, the attorney general has abused his power by instructing new judges to decide their cases in ways that further the Department of Justice鈥檚 enforcement and deterrence goals, prioritizing speed over fair case-by-case adjudication.

In speeches to new immigration judges in 2018, Attorney General Sessions underscored the DOJ鈥檚 鈥渇irm goal鈥�to end the lawlessness that now exists in our immigration system,鈥� stating that 鈥渙ur goal is not to just prosecute more but to deter and end illegality.鈥� Emphasizing that 鈥淸c]ases must be moved to conclusion,鈥� he called on judges to consider their 鈥渄isposition rates,鈥� and keep in mind that 鈥淸v]olume is critical.鈥� No guidance was given on the importance of developing the facts of a case or staying current on developments in the law.

Enforcement priorities have been emphasized directly in judges鈥� training sessions. In describing the judges鈥� 2018 annual training conference, one former immigration judge explained that 鈥淸t]he entire conference was profoundly disturbing. Do things as fast as possible. There was an overarching theme of disbelieving aliens and their claims and how to remove people faster.鈥�

One former immigration judge has noted her 鈥済rave concerns, based on what I鈥檝e seen in court recently, that [new immigration judges] have been appropriately trained to be judges in a professionalized, [truly independent] immigration court.鈥� Another explained that 鈥渢here isn鈥檛 even any attempt at a proper training. The whole indoctrination is you鈥檙e not judges, you鈥檙e really enforcement. You鈥檙e really a branch of DHS in robes.鈥�

The attorney general鈥檚 instructions have also endorsed and promoted judicial bias against asylum seekers. Attorneys indicate that many judges have an attitude that 鈥渨e have to stop this influx of migrants.鈥� As one attorney put it, judges 鈥渁re in line with this whole enemy at the gates mentality and paranoia, in line with everything that is happening at the southern border.鈥� One attorney heard a judge say, off the record, that 鈥渢he asylum seekers on the border are an invasion. You can鈥檛 deny that they are like an invading army, and we have to sort out who is who.鈥� As another practitioner explained, even if judges 鈥渕ay not think of themselves as a deportation 鈥榤achine,鈥� [they believe] that everybody who is stuck in the machine deserves to be there.鈥�

While attorneys said that many judges were already demonstrating this bias before 2017, they explained that these judges have been 鈥渆mpowered鈥� and 鈥渇ully emboldened because of what Trump champions.鈥� One practitioner stated that while 鈥渢endencies toward bias were always there,鈥� judges now 鈥渉ave more license to act on them and not worry about repercussions.鈥� These biases directly undermine respondents鈥� rights to fair hearings and impartial adjudicators.

The attorney general has manipulated judicial dockets to achieve his enforcement priorities

The Trump administration鈥檚 attorneys general have interfered with immigration judges鈥� control of their courtrooms by reassigning case dockets to align with their enforcement priorities. Here the administration has followed the example of prior attorneys general: In 2014, in response to increasing arrivals of unaccompanied minors at the U.S.-Mexico border, the DOJ created what was called the 鈥渞ocket docket,鈥� moving newly arriving minor and family cases to the top of judges鈥� dockets, despite objections by immigration judges.

These priorities were revised by the Trump administration in January 2017 to target detained noncitizens, certain unaccompanied children, and noncitizens released from prolonged detention for unfairly expedited hearings. Most recently, an expedited 鈥渇amily unit鈥� docket has been created for some courts, which fast-tracks the asylum cases of newly arrived families in the United States without consideration of due process. Immigration judges now give respondents mere weeks to find attorneys, collect evidence, prepare witnesses and testimony, and submit such other materials as may be required by judges鈥� sub-regulatory rules.

The attorney general鈥檚 manipulation of immigration court dockets has been interpreted by immigration judges themselves as an enforcement-driven interference with their jurisdiction. As Dana Leigh Marks, a San Francisco immigration judge, has explained:

The 鈥渄eployment鈥� of judges to the border鈥攋ust the word feels inappropriate to a lot of judges. It does imply a military force, and while we are related to immigration law enforcement, we are supposed to be neutral adjudicators. We want to be the most efficient and effective in deciding the cases in front of us, and there shouldn鈥檛 be any kind of feeling that there is a political basis for influencing how those decisions are made.

National Association of Immigration Judges President Ashley Tabaddor has similarly described how 鈥渃onstant docket shuffling鈥� is one of the products of the use of the EOIR 鈥渁s an extension of a law enforcement agency鈥檚 priorities.鈥� Particularly when combined with the attorney general鈥檚 recent imposition of case quotas as mentioned earlier, docket shuffling has exacerbated enforcement-driven pressures on immigration judges.

Enforcement-driven docket shifts undermine judges鈥� ability to manage their own caseloads effectively. The EOIR has acknowledged that priority dockets 鈥渄id not produce significant results鈥� in effectively navigating cases through immigration court. Instead, docket manipulation has exacerbated an already huge backlog in immigration court cases.

When judges are redirected to hear new dockets, their existing case dockets鈥攚hich may already include thousands of cases鈥攁re seriously disrupted. Calendar shifts due to expedited priority cases can cause pre-scheduled cases to be 鈥渒icked鈥� months or years into the future. For example, when the Trump administration detailed immigration judges throughout the country to courts along the U.S.-Mexico border in 2017, more than 20,000 cases were delayed in the immigration courts they left behind.

Cuban migrants in Ciudad Juarez, Mexico, wait in line to be processed as asylum seekers in the U.S. (Photo by AP IMAGES/Christian Torres.)

Docket shuffling thus contributes to a growing backlog of cases, in which the average immigration case now takes more than two years to complete. This shuffling also has a severe impact on respondents. According to one attorney in San Antonio:

I had last year a client who had been detained . . . close to a year when his merits hearing was bumped because they sent the judge to a non-detained docket in El Paso. His hearing was bumped [from] April to July, then bumped again . . . My client was suicidal when I told him that case was moved from April to July . . . I canceled [a major family vacation] to make the July date, then the judge just rescheduled.

As another attorney explained, 鈥渁rbitrary prioritizations wreak havoc on case management,鈥� giving so-called 鈥減riority鈥� cases inadequate time to prepare while further extending the backlog for pending cases that may have been waiting for years.

As Tabaddor, the NAIJ president, has explained, even adding new judges would not help solve the docketing crisis.

[The EOIR is] not run like a court; the necessary structure and infrastructure that鈥檚 supposed to be in place hasn鈥檛 been put in place. So we have judges who don鈥檛 have sufficient support staff. We have judges who don鈥檛 have courtrooms. We have incidents, in certain situations, that we don鈥檛 have in-person interpreters allowed to us because of the, frankly, the mismanagement of the court鈥檚 budget.

Former immigration judges have echoed this sentiment, noting that 鈥渆ven on the X鈥檚 and O鈥檚 level, you have this stunning incompetence and inability to run a judicial system just from the technical standpoint鈥攖hey can鈥檛 hire, they can鈥檛 plan, they can鈥檛 train, they can鈥檛 get the resources out there.鈥� This lack of resources also directly impacts judges鈥� ability to fairly decide cases, as judges are forced to take on greater administrative responsibilities, reducing their available time to review evidence and deliberate upon cases.

The attorney general incites prejudice against asylum seekers and their attorneys

The attorney general has encouraged judicial bias by fomenting distrust of asylum seekers and their attorneys. In speeches to the EOIR, then-Attorney General Sessions characterized, without evidence, the asylum system as 鈥渃urrently subject to rampant abuse and fraud鈥� and 鈥渙verloaded with fake claims,鈥� stating that 鈥渢he vast majority of the current asylum claims are not valid.鈥� He described the credible fear process as 鈥渁n easy ticket to illegal entry into the United States.鈥�

Sessions also specifically attacked the credibility of immigrants鈥� counsel, labeling them as 鈥渄irty immigration lawyers who are encouraging their otherwise unlawfully present clients to make false claims of asylum.鈥� He warned new immigration judges of 鈥済ood lawyers鈥� who 鈥渨ork every day鈥攍ike water seeping through an earthen dam鈥攖o get around the plain words of the INA to advance their clients鈥� interests.鈥�

Practitioners report that such blanket prejudgment of asylum claims has been disastrously effective: Immigration judges have adopted an inherent, pervasive distrust of asylum-seeking respondents. Attorneys describe how some judges 鈥渄isbelieve everything鈥� that comes before them in asylum hearings. One judge, without any record evidence, told an attorney in a bond hearing that a client had to have a strong claim 鈥渂ecause a lot of them are lying, they鈥檙e just lying.鈥�

In another case, after a client testified that her husband鈥檚 severe physical abuse had caused her to miscarry a child, the judge commented that 鈥渆ssentially he couldn鈥檛 even be sure that the Respondent had been pregnant.鈥� Other judges consider a client 鈥渁 liar and evasive鈥� if she has faced any type of trauma, claiming that a truly traumatized individual 鈥渨ould have had years of therapy.鈥�

Judges鈥� distrust also extends to respondents鈥� attorneys. Judges in some courts regularly question attorneys鈥� integrity, falsely accusing them of lying in court. In some cases, judges have filed or threatened to file unwarranted complaints against attorneys who attempt to zealously represent their clients. Attorneys also reported that judges, without any apparent basis, have questioned their judgment and qualifications in court, even going so far as to call one attorney鈥檚 supervisor in open court. Some judges insult attorneys in front of their clients, undermining the clients鈥� trust.

Judges鈥� hostility towards attorneys directly impacts the quality of representation as well as clients鈥� case outcomes. Attorneys report that they have 鈥渘ightmares鈥� about certain judges, or 鈥渃an鈥檛 sleep for a week because of the pressure and hostility鈥� they know they will face in certain courtrooms. As one practitioner explained, 鈥淎 lot of judges, their goal is to break down the attorney-client relationship so the client doesn鈥檛 want the attorney anymore or gives up the case.鈥� Other practitioners reported that certain judges prejudge cases based on who is representing a client. In addition, some judges use scheduling and docketing to retaliate against specific attorneys.

Former immigration judges have noted how poor treatment by judges 鈥渄emoralizes鈥� private attorneys, explaining that 鈥渕orale in the private bar is bone zero because the judges are rude, they will not listen鈥攖hey just want to move the meat. And it鈥檚 just a totally broken system.鈥�

The attorney general categorically encourages deportations by giving an immigration judge a personal stake in every case outcome

In contravention of every known norm respecting impartiality, the attorney general has pitted immigration judges against due process by threatening to punish the judge鈥攊ncluding through termination鈥攆or failing to adhere to enforcement-driven case quotas. As of Oct. 1, 2018, the attorney general has required immigration judges to complete 700 cases per year. Immigration judges who fail to meet case quotas and performance standards risk facing disciplinary action including termination.

The pressure of case quotas can feel ever-present to an immigration judge. Logging into their computers each morning, a performance dashboard appears. This dashboard uses red, yellow, and green to reflect compliance with performance goals, and acts as 鈥渁 constant reminder for judges . . . of how much the administration places emphasis on numbers; on quantity rather than quality.鈥�

Tying immigration judges鈥� employment to numerical performance measures presents an unheard-of conflict because it gives judges a personal stake in case outcomes and encourages them to push cases through quickly without sufficient attention. As Tabaddor, the NAIJ president and immigration judge, has noted, this personal stake is in conflict with the principle that 鈥渁 judge [should] be completely divorced from the interests of the parties over whom he or she is presiding.鈥�

Congress has recognized the threat that such performance evaluations pose to judicial independence by exempting administrative law judges (ALJs) from performance appraisals and ratings. Case quotas are also contrary to recommendations made in a report commissioned by the EOIR itself. The NAIJ has warned that the imposition of numerical case completion quotas on immigration judges 鈥渃ould be the death knell for judicial independence.鈥� As one attorney said, quotas are 鈥渢rying to break the courts.鈥�

Case quotas also prioritize speed over other adjudicatory concerns鈥攊ncluding fairness. As one former immigration judge explained, 鈥渢o tie all of that to performance evaluations is just highly inappropriate in a judicial setting . . . [I]t encourages quick slapdash justice.鈥� Practitioners鈥� experiences suggest that many judges are attempting to meet the attorney general鈥檚 new standards by adopting methods that infringe upon noncitizens鈥� rights to full and fair hearings. Before 2017, merits hearings were regularly scheduled for three-hour blocks, with judges hearing one case in the morning and another in the afternoon. Some courts are now scheduling three times that many. As one practitioner explained, this scheduling 鈥渘ecessarily means that you won鈥檛 have time to present your full case.鈥� One practitioner explained the impression that the judges seem to use overbooking to rush hearings, in order to cover for a 鈥渓ack of desire to conduct hearings fairly.鈥� Former immigration judge John Richardson described the outcome of the quotas as a 鈥渓aw enforcement assembly line鈥�:

Due process is nothing. It鈥檚 an assembly line. They come down a belt, you鈥檝e got a big stamp, you stamp them on the forehead that says 鈥渄eport,鈥� and away they go. The problem is you don鈥檛 have time to grant relief and have a hearing . . . There鈥檚 no due process. There is no judging. It鈥檚 just a law enforcement assembly line, quite frankly.

Even for judges attempting to uphold due process, case quotas鈥� heightened pressure increases the risk that implicit bias will play a larger role in their decisions; research has shown that under the stress of unmanageable caseloads, immigration judges tend to base their decisions on instincts rather than reasoned legal analysis and the facts of each case.

To meet the quota system, many courts are now using 鈥渟tacked鈥� dockets, in which multiple merits hearings are scheduled for the same timeslot. Attorneys describe arriving at court for a long-awaited merits hearings only to find that the hearing time has been triple-booked, resorting to 鈥渞ock, paper, scissors鈥� with fellow attorneys to determine their order of appearance in court. Attorneys may be forced to wait for hours, or a case may not be heard at all on a given day, requiring respondents, attorneys, and witnesses to come back for the next hearing. As one attorney explained, 鈥淸it] feels like a huge waste of resources and time when you have a whole family there, especially when they鈥檝e traveled great distances.鈥�

Delays also place attorneys and clients in an 鈥渋mpossible鈥� position, as available evidence and testimony may weaken over a period of years. As a former immigration judge explained:

[T]he more cases get shuffled off, the harder they get to try because circumstances change, country conditions change. Witnesses disappear. Lawyers change. So a case that could have been done fairly straightforwardly a year after it was filed, eight years after it鈥檚 filed that鈥檚 a whole different ballgame.鈥�

Judges鈥� publicly expressed views of case quotas vary widely鈥攊n Atlanta, for example, judges range from talking about the numbers 鈥渁ll the time, like the whole thing is a game,鈥� to getting 鈥渋nstantly angry鈥� if an attorney suggests any actions are due to case completion quotas. Yet attorneys across courts report that judges are aware of and concerned about their completion statistics. Practitioners explained that some 鈥渃ases are moving incredibly fast and clients are unable to prepare,鈥� and 鈥渃ases move so quickly it鈥檚 hard to put a substantive case together.鈥�

Even longtime judges, who were initially disdainful of the new directives, seem to be changing their behavior to comply with them. Attorneys report that judges who push back against the direction of the attorney general have done so to their 鈥減eril,鈥� having been 鈥渨orn down鈥� by pressures to fall in line with the Trump administration鈥檚 policies. Former immigration judges report that their colleagues who are still on the bench are 鈥渟cared for their jobs.鈥� They emphasize that the administration has 鈥渟ent the message that this is serious; that if you don鈥檛 meet the quotas, you really are going to be out of a job.鈥�

In at least one instance, the attorney general鈥檚 emphasis on case closure has resulted in direct interference with a judge鈥檚 docket. In Matter of Castro-Tum, Judge Steven Morley attempted to delay issuing a ruling to ensure that the respondent, who had entered the United States as an unaccompanied minor, had notice of his hearing. In response, the EOIR leadership reassigned the case to a supervisory immigration judge, who traveled from Virginia to Philadelphia to conduct a single hearing. She ordered the respondent removed in absentia without inquiring further into the due process concerns raised by Judge Morley and an attorney appearing as friend of the court. The EOIR also unlawfully removed 26 additional cases from Judge Morley鈥檚 docket without explanation; all 26 cases involved the due process rights of juvenile respondents.

The attorney general鈥檚 office has undermined the EOIR鈥檚 legitimacy and neutrality through politicized hiring and firing

The attorney general鈥檚 office has abused its supervisory authority by unlawfully politicizing the hiring and firing of EOIR personnel. Given the importance of expert knowledge in a specialized court system, selecting adjudicators based on ideology鈥攔ather than relevant knowledge or adjudicatory skills鈥攗ndermines the integrity of the entire system. Merits-based appointments are especially critical in the immigration court system, where the relevant law is notoriously complex. Selecting administrative judges based on political considerations is also illegal.

Nevertheless, under the Trump administration, the Department of Justice has faced serious allegations of illegally blocking the hiring of EOIR adjudicators based on political bias. While the Trump administration is not the first to exploit the appointment process, as this report notes, the impact of its weaponized hiring may be the most widespread. In spring 2018, members of Congress expressed concern that offers to multiple candidates for immigration judge and BIA positions had allegedly been withdrawn or delayed due to improper consideration of their perceived political or ideological views.

The DOJ has also reportedly changed the qualifications for immigration judges to favor individuals with law enforcement experience. This revision has led to a consistent overrepresentation of individuals with immigration enforcement experience among immigration judges and BIA members. Roughly three-fourths of immigration judges hired by the Trump administration have prosecutorial experience, and many previously worked for ICE as trial attorneys who represented the government in removal proceedings.

Former immigration judges described the system as being filled with 鈥渁ll these prosecutors who have been trained to just [give] assembly-line justice,鈥� noting that 鈥渁nybody other than somebody with a government background has basically been shut out of the 21st century immigration judiciary.鈥� Attorneys also report that this past employment is an important factor undermining many judges鈥� impartiality. One practitioner said that former trial attorneys still act like prosecutors from the bench鈥斺�渢hey don鈥檛 purport to be neutral.鈥�

In addition to directly abusing powers of appointment and removal, the attorney general鈥檚 increasingly enforcement-oriented directives have pushed many judges to resign or retire early. As NAIJ President Tabaddor has explained,鈥淸t]he job has become exceedingly more difficult as the court has veered even farther away from being administered as a court rather than a law enforcement bureaucracy.鈥�

Attorneys also have the sense that some judges feel offended, insulted, and undermined by their treatment under the current administration, feeling discomfort about 鈥渂eing demoted to roles of clerks.鈥� When long-time Phoenix Immigration Judge John Richardson retired in September 2018, he stated that 鈥淸t]he timing of my retirement was a direct result of the draconian policies of the Administration, [including] the relegation of [judges] to the status of 鈥榓ction officers鈥� who deport as many people as possible as soon as possible with only token due process.鈥�

Another immigration judge reported that immigration adjudication 鈥渉as become so emotionally brutal and exhausting that many people I know are leaving or talking about finding an exit strategy. Morale has never, ever been lower.鈥� Former immigration judge Laura Ramirez, who retired from the San Francisco court in December 2018, has explained that this trend jeopardizes EOIR鈥檚 integrity:

For the system of justice, there鈥檚 these highly qualified, fair, thoughtful people who are being squeezed out of the system for political reasons, basically . . . The system can鈥檛 be fair if good people 鈥� are pushed out.

A History of Politicized Hiring in Immigration Courts

The attorney general鈥檚 office has used its certification power to encourage prejudgment of cases and undermine due process

The attorney general鈥檚 office has abused its controversial certification power in ways that further jeopardize asylum seekers鈥� access to a fair hearing. Federal law grants the attorney general broad authority to review and unilaterally reverse BIA decisions on his or her own initiative. This 鈥渃ertification鈥� process results in precedential decisions that are binding on both immigration judges and the BIA.

While agency head review is not uncommon throughout the executive branch, particular concerns have been raised about conflicts of interest in the immigration context, where the nation鈥檚 chief law enforcement officer is able to override a specialized adjudicator鈥檚 decisions in cases in which the government is a party.

Controversially, attorneys general have also interpreted the certification process to be unconstrained by due process concerns, such as requirements of a fair hearing, that otherwise apply throughout the EOIR鈥檚 adjudicatory process.

The attorney general鈥檚 vast certification powers have also been critiqued for being 鈥渧ulnerable to politically driven decisionmaking鈥� and driven by a prosecutorial agenda. Attorneys general across administrations have selected and decided certified cases based on political preferences rather than to promote uniform application of the law. As Tabaddor, the NAIJ president, has noted:

[The attorney general鈥檚 certification power turns immigration courts into] basically a veneer for a courtroom . . .[T]he Attorney General ha[s] the ability to step in on any one of the cases and take a case and use that case as a mechanism to extend whatever law enforcement policies the executive branch is following at that point. So when you have a court system that allows a prosecutor to engage in this type of super veto power and insert himself or herself into the proceedings, that is highly problematic.鈥�

Under the Trump administration, the certification power has arguably been used as one of the most powerful tools to implement the administration鈥檚 pro-deportation agenda. Former immigration judges characterize the use of the certification power by the Trump attorneys general as an attempt 鈥渢o try to really force the judges into doing exactly what they want them to do鈥� in service of their weaponization goal. Carol King, a former immigration judge, explained the issue:

The problem with the certification power goes deeper than individual administrations.听 Having one person at the helm that can, with a stroke of a pen, undue decades of painstakingly considered legal development based on political or policy considerations is inherently problematic. But now we鈥檙e seeing it being used to deliberately undermine the immigration court system itself, which was developed over time to provide a due process for determining who is allowed to stay in our country. That has always been the danger and now we鈥檙e seeing an administration weaponize this aspect of our immigration court system to undermine the system of due process that has been developed.

In discussing a recent certified decision, one attorney stated: 鈥淚t鈥檚 a great way to terrorize people by using a false reading of the law, for as long as you can get away with it.鈥�

In furtherance of their weaponization agenda, the Trump attorneys general have strategically certified cases to channel immigration judges toward denying asylum claims. These certifications include decisions that undermine individualized determination of cases and limit immigration judges鈥� adjudicatory tools.

The attorney general鈥檚 office has issued precedent encouraging the categorical prejudgment of asylum claims

In 2018, then-Attorney General Jeff Sessions published a self-referred decision in Matter of A-B- in which he authorized and encouraged his immigration judges to categorically deny asylum claims based on the 鈥渢ype鈥� of case, instead of considering individual facts and fair application of law to those individual facts.

This precedent was set despite the existing requirement that an applicant must establish the prerequisites for an asylum claim and show that she is a 鈥渞efugee鈥� within the meaning of the INA. The INA has long been interpreted to protect women fleeing a range of gender-based harms. Individuals have also successfully brought claims relating to gang violence in a range of contexts, and under multiple protected grounds鈥攗nder case-by-case adjudication.

There has never been a categorical bar against such claims, nor a blanket rule that all claims involving domestic violence are valid. Rather, each case has traditionally been assessed on its merits, measured against the same general standards applicable to all claims. Reaching beyond the facts of the case before him, Sessions held that few claims pertaining to domestic or gang violence perpetrated by nongovernmental actors would qualify for asylum鈥攁n attempt to set forth a new policy that would make the vast majority of claims related to domestic violence or gang violence fail 鈥渋n practice.鈥�

In addition to overturning well-settled case law, Matter of A-B- disrupted a long-term consensus between the government and immigration advocates that domestic violence, in certain circumstances, is an appropriate basis for granting asylum. Paul Schmidt, a former immigration judge and BIA member, described how, 鈥渁fter a 17-year struggle to finally get [domestic violence cases] right, for Sessions to come along and basically undo the consensus鈥攊t鈥檚 totally outrageous and inappropriate.鈥�

Jeffrey Chase, another former immigration judge, further explained that while the Bush administration had backed away from issuing a similar decision, based on pushback from conservative women鈥檚 groups, 鈥渢he difference is Sessions absolutely didn鈥檛 care. Not only Sessions, but any A.G. in this administration鈥攖hey feel that just because they don't like it, it doesn鈥檛 matter that the sides are in agreement, that there鈥檚 no issue in dispute, that it鈥檚 settled law.鈥�

Instigated or encouraged by the attorney general鈥檚 guidance in Matter of A-B-, attorneys report that judges have begun to 鈥減retermit鈥� (deny prior to a merits hearing) or threaten to pretermit cases, based on the case 鈥渢ype.鈥� Even when cases are not explicitly pretermitted, many judges actively discourage respondents from requesting relief.

Judges in multiple courts attempt to convince respondents at master calendar hearings that their claims will inevitably fail, so it is in their best interest to give up without finding attorneys and take voluntary departure orders. In many cases, these warnings lead unrepresented respondents to give up their claims at an early stage in proceedings.

An attorney in El Paso recounted that a judge tells asylum seekers: 鈥淭his is the bye-bye place. Ninety-nine percent of you are going to fail. You鈥檙e not going to succeed. So think about this when you decide whether you want to ask for counsel.鈥�

Even when claims progress to a merits hearing, they are regularly prejudged. Former judges point out that 鈥渓awyers have to push the boulder all the way up the hill on every single case now,鈥� which reduces their capacity to take on others. And while creative lawyers can still win domestic violence and gang cases, 鈥渢he problem is the unrepresented people, it鈥檚 like shooting fish in a barrel鈥� for a judge to deny their cases. As former immigration judge Rebecca Jamil noted:

I know that there are many conservative courts that are essentially doing six to eight A-B- cases in a slot and saying 鈥渢his is an A-B- case鈥� and not allowing testimony and just plowing through. And it鈥檚 horrifying to me . . . It blows my mind what a denial of due process that is, and a denial of reality in so many of these countries.

Jamil also reports that new judges are being improperly trained that 鈥渃ases like Matter of A-B- should be applied like a statute鈥� in order to categorically deny asylum eligibility to respondents.

With courts emboldened by the letter and spirit of Matter of A-B-, practitioners describe 鈥渢ypes of cases that [judges] have predetermined should not win.鈥� As one attorney explained: 鈥淸B]efore you even walk into court, your case has already been denied.鈥� Another practitioner recounted a judge telling her: 鈥淚 haven鈥檛 had a chance to look at the evidence but I鈥檓 already going to tell you we aren鈥檛 going to grant this.鈥�

Charlotte attorneys report that at least one judge simply issues removal orders without holding merits hearings, sometimes contacting the attorney the night before to say that there is no need to come to court as he plans to deny the case. Other attorneys described judges who write denial orders before a hearing has been completed.

The attorney general鈥檚 office has undermined due process by depriving judges of important docket management tools

Under the Trump administration, the attorney general has also used his certification power to significantly limit judges鈥� access to adjudicatory tools. In each of these strategic certifications, the attorney general issued decisions that limit judges鈥� independence to manage their dockets and reduce respondents鈥� access to due process protections. In 2018, Sessions鈥� decision in Matter of Castro-Tum overruled decades of immigration court practice by eliminating immigration judges鈥� discretionary authority to suspend immigration proceedings through administrative closure.

His subsequent ruling in Matter of S-O-G- & F-D-B- similarly abolished immigration judges鈥� discretionary ability to terminate or dismiss removal proceedings. Before these decisions, judges had used these adjudicatory tools to manage their dockets without foreclosing respondents鈥� eligibility for immigration relief鈥攆or example, by suspending removal cases in which respondents were waiting for another type of immigration application to be processed by United States Citizenship and Immigration Services, the immigration benefits branch of DHS.

The attorney general鈥檚 decision in Matter of L-A-B-R- also severely limited judges鈥� discretion to grant continuances, restricting an important mechanism for providing respondents with adequate time to find counsel and gather evidence. And in Matter of E-F-H-L-, Sessions reopened and vacated a decision that had required immigration judges to hold an evidentiary hearing before ruling on a respondent鈥檚 asylum claim, discarding important precedent that had clearly precluded judges from pretermitting asylum claims without a full hearing.

The courts have felt acutely the impact of decisions removing tools such as administrative closure and continuances. As one former judge explained, 鈥淚t鈥檚 absurd. They鈥檝e basically taken the few things that worked in the system and disabled them so they don鈥檛 work anymore.鈥滱nother judge described how he had used administrative closure to suspend thousands of cases that had other pending resolutions, such as family-based visa petitions. When administrative closure was eliminated, those cases were all re-calendared and 鈥渋t was just an absolute nightmare鈥攊t clogged the system.鈥�

Practitioners report that judges are now consistently denying continuances in courts across the country. As one practitioner explained: 鈥淛udges have panic in their eyes when you ask for a continuance.鈥� In Charlotte, judges cite 鈥渃oncerns for administrative efficiency鈥� and their 鈥渉eavy docket of pending cases鈥� in ruling to deny continuances.

Requests for continuances to find counsel are granted very inconsistently, depending on the judge. Even judges who selectively grant continuances may 鈥渒eep a tally鈥� of continuances in a case, regardless of whether the extensions are at the request of the client and his attorney or for another reason. Some judges also set attorneys up for failure; one judge denied a respondent鈥檚 continuance request due to the lack of certain evidence, after having previously told the respondent鈥檚 attorney the same evidence was not necessary.

The denial of continuances can adversely impact respondents鈥� ability to present their claims for relief. One attorney described the 鈥渄estructive鈥� impact of L鈥揂鈥揃鈥揜鈥� in the Atlanta court, where there has been a 鈥渘oticeable increase鈥� in respondents accepting voluntary departure and removal orders due to a lack of continuances to find representation and prepare their cases.

Another attorney recounted an instance when a judge had refused a continuance despite realizing that the interpreter was speaking the wrong dialect; the subsequent appeal cited at least 27 times when the court could not understand what the respondent said. Attorneys also report having to work especially hard at every continuance request, which takes time away from their preparation of clients鈥� merits cases.