DOJ gives official more authority over immigration court decisions

Unions representing judges push back on rule

By Geneva Sands, CNN
Copyright 2019 CNN

WASHINGTON (CNN) - The Justice Department is giving discretion to a top official to decide immigration cases as the administration tries to exert more influence over the nation's immigration courts.

A new rule, which goes into effect Monday, gives more power to the director of the Executive Office for Immigration Review, the agency which oversees the immigration court system. It allows the Justice Department-appointed director -- currently, director James McHenry -- to issue a ruling if appeals aren't adjudicated within a specific time frame, thereby granting the director new decision-making authority.

Except in limited circumstances, if appeals are not completed within 90 or 180 days, the director will be able to decide the appeal.

The union representing immigration judges pushed back against the rule, saying the department's action ends transparency and assurance of independent decision making.

"It's essentially creating an immigration court czar," said Ashley Tabaddor, president of the National Association of Immigration Judges, who argued that the regulation will collapse policy making and adjudication into a "single individual" and favors policy directives over the non-political legal analysis.

"It's the final nail in the coffin of any semblance of independent decision making," she told CNN.

The rule also transfers some immigration court programs from the Office of the General Counsel to the Office of Policy to "more appropriately align those programs with their policymaking character," according to the rule.

Immigration advocates see the changes as a way to implement the Trump administration's priorities in the immigration court system.

"This new rule effectively takes power away from independent immigration judges and centralizes it in the hands of administration officials," said Ali Noorani, executive director of the National Immigration Forum.

But DOJ spokeswoman Sarah Sutton said the director is not a political appointee and the change does not conflict with "core functions" of the Board of Immigration Appeals.

"It is evident from the text of the regulation that these changes do not interfere with the core functions of the Board of Immigration Appeals," Sutton said in a statement. She invited public feedback on the rule.

More than 945,000 cases were pending in immigration courts nationwide as of the end of June, according to the Transactional Records Access Clearinghouse at Syracuse University.

The Justice Department has faced mounting pressure by the administration to whittle down a massive court backlog.

Immigration courts fall under the Justice Department, with Attorney General William Barr able to weigh in on immigration appeals decisions. Under Barr's tenure -- as well as under former Attorney General Jeff Sessions -- the department has issued several rulings that have limited the basis for asylum claims.

In April, Barr said that some asylum seekers who have established credible fear and are subject to deportation cannot be released on bond by immigration judges -- a major reversal from a prior ruling that could lead to immigrants being held indefinitely.

Late last year, a federal judge blocked a move by Sessions that made it difficult for victims fleeing domestic and gang violence to qualify for asylum.

There are more than 60 immigration courts in the United States, and about 400 judges.

Critics of the system, who say it should be more autonomous from the Justice Department, recommended rescinding the recently imposed quotas and metrics used to evaluate immigration judges and have said recent actions have made it more unfair to migrants.

Earlier this year, the American Bar Association said, "The current system is irredeemably dysfunctional and on the brink of collapse."

The Justice Department will accept public comments on the rule for 60 days after its publication in the Federal Register.

CNN's Dan Berman, Priscilla Alvarez and Catherine E. Shoichet contributed to this story.

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