Margaret Kelly

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Immigration courts in the United States are facing the largest case backlog recorded since 1998.[1] Due to a regulation imposed by Attorney General Jefferson Sessions, immigration judges are directed to complete 700 removal cases a year. Deciding 700 cases a year roughly equates to deciding a case every 2.5 hours.[2] Immigration judges are overworked and increasingly left demoralized by directives imposed by the Trump Administration.[3] Rightfully so, immigration judges are tasked with deciding numerous asylum decisions—pertaining to life and death situations—each day.[4] Immigration judge Dayna Leigh Marks describes the process as “holding death penalty cases in traffic court.”[5] Asylum hearings feel this way to immigration judges because they are tasked with deciding whether asylum applicants deserve protection from the U.S. on account of persecution in their home countries.[6] Asylum applicants are often fleeing violence from countries where the government is unwilling or unable to protect them.[7]

            The current asylum system in the U.S. is codified in Title 8 of the United States Code, also referred to as the Immigration and Nationality Act (“INA”).[8] Regulations under the INA are set forth in Chapter 8 of the Code of Federal Regulations.[9] Additionally, international treaties and conventions and federal case law control what applicants may qualify for protection.[10] The INA vests great power in the Department of Justice and the Department of Homeland Security—both of which are located within the Executive Branch—to administer immigration law and policy.[11]

            The INA affords great discretion to the Attorney General of the U.S. to form law and policy pertaining to immigration law.[12] In 2016, President Trump nominated Jefferson Sessions as the 84^th Attorney General of the United States.[13] In 2018, President Trump replaced Sessions with William Barr—the current Attorney General of the U.S.[14] Both Sessions and Barr enacted wide-reaching policy affecting immigration court operations. Sessions created a regulatory process that expanded the Attorney General’s power of case review.[15] Barr implemented a new Office of Policy within the Department of Justice that limits and shortens the time in which the Board of Immigration Appeals (“BIA”) may process appeals.[16]

            Because Sessions and Barr have implemented wide-reaching policy, the National Association of Immigration Judges (“NAIJ”) supports moving immigration courts from the Executive Branch into the Judicial Branch under Article I of the Constitution.[17] Currently, immigration courts are structured within the Department of Justice’s Executive Office of Immigration Review (“EOIR”).[18] The EOIR manages both immigration trial courts, and the BIA.[19] Immigration judges opine that an immigration court structure under the chief federal prosecutor of the U.S.—the Attorney General—creates a conflict of interest.[20] Judges are overwhelmed and overworked under the Attorney General’s policies, which judges describe as violations of due process.[21] Therefore, NAIJ calls for the removal of immigration courts from the Executive Branch and restructuring courts under Article I of the Constitution.[22]

            In addition to proposing a statutory Article I immigration court, this Note will also discuss Germany’s immigration courts and how they adjudicate asylum claims.[23] The right to asylum is codified in the German Constitution and in their Asylum Procedures Act.[24] The Asylum Procedures Act contains explicit language defining who qualifies for asylum relief.[25] Further, and perhaps the most notable difference, Germany’s immigration judges are not bound by precedent but are bound almost exclusively by statutes.[26] While this Note by no means proposes that U.S. immigration courts diverge from the Country’s common law jurisprudence, German asylum statutes are guidance from which the U.S. can learn.

This Note seeks to answer the question of how the U.S. can improve the process in which asylum claims are adjudicated in the U.S. immigration court system. This improvement requires the establishment of independent Article I immigration courts and clear statutory definitions of grounds for persecution under the INA. Article I Tribunals will give immigration judges independence to make decisions on the merits of each asylum claim, away from Executive Branch oversight. Part I of this Note discusses the legal framework of asylum law in the U.S. and Germany. Part II will discuss the pressure immigration judges face from the Executive Branch and the effect of new law and policy on immigration courts—focusing on Matter of A-B-. Part III.A will discuss how an Article I immigration court will give immigration judges more judicial independence. Finally, Part III.B will propose amending statutory language to include clearer definitions of those who qualify for asylum.

 

[1] See Immigration Court Backlog, TRAC Immigration (last visited Mar. 7, 2020), https://trac.syr.edu/phptools/immigration/court_backlog/ (showing a backlog of 129,505 in 1998 and 1,101, 061 as of January 2020).

[2] Louis C. Labrecque, Immigration Judges not Meeting DOJ Production Goals, House Told, Bloomberg Law (Jan. 29 2020), https://news.bloomberglaw.com/daily-labor-report/immigration-judges-not-meeting-doj-production-goals-house-told.

[3] See Ilyce Shugall, Op-Ed: Why I Resigned as an Immigration Judge, Los Angeles Times (Aug. 4, 2019), https://www.latimes.com/opinion/story/2019-08-03/immigration-court-judge-asylum-trump-policies.

[4] See Judge Dorothy Harbeck, In Borrowed Robes: A Day in the Life of an Immigration Judge, 56 Judges J. No. 3 30, 32–34 (2017) (describing typical cases an immigration judge decides in one day).

[5] Id. at 34.

[6] See 8 U.S.C. § 1101(a)(42)(A) (2019) (explaining that to qualify as a refugee, an asylum applicant must establish a well-founded fear of persecution from a country that is unwilling or unable to offer protection).

[7] Id.

[8] 8 U.S.C. §§ 1101–1537.

[9] 8 C.F.R. §§ 1001–1337 (2019).

[10] Anita P. Sharma, Overview of the Law of Asylum, Immigration Prac. Manual, MA-CLE 31-1 (2017).

[11] See 8 U.S.C. § 1103(a) (laying out the powers of the Secretary of Homeland Security); see also § 1103(g) (laying out the powers of the Attorney General).

[12] Id.

[13] Attorney General: Jeff Sessions, Dept. of Justice (last updated Nov. 8, 2018), https://www.justice.gov/Attorney General/bio/attorney-general-jeff-sessions.

[14] Meet the Attorney General, Dept. of Justice (last updated Feb. 14, 2019), https://www.justice.gov/Attorney General/staff-profile/meet-attorney-general.

[15] Sessions: The Trump Administration’s Once-Indispensable Man on Immigration, Migration Policy Institute (Nov. 18, 2018), https://www.migrationpolicy.org/article/sessions-trump-administrations-once-indispensable-man-immigration.

[16] 84 Fed. Reg. 44537 (to be codified in 8 CFR 1001, 1003, and 1292) (2019); see also discussion infra Section II.A.4 (describing the Office of Policy in detail).

[17] See The Immigration Court- In Crisis and Need of Reform, Nat’l Assoc. Immigr. Judges (Aug. 2019), https://www.naimmigration judge-usa.org/imAttorney Generales/uploads/publications/Immigration_Court_in_Crisis_and_in_Need_of_Reform.pdf.

[18] 8 C.F.R. § 1003.0.

[19] Id.

[20] See Emma Platoff, Immigration Judges are Expected to be Impartial. But they Report to Jeff Sessions, The Texas Tribune (Aug. 15, 2018), https://www.texastribune.org/2018/08/15/immigration-judges-report-prosecutors-jeff-sessions-justice-department/ (describing Judge A. Ashley Tabaddor’s experience as an immigration judge under Sessions).

[21] Statement of Ashley Tabaddor, Hearing on “The State of Judicial Independence and Due Process in U.S. Immigration Courts”, Nat’l Ass’n Immigr. Judges 6 (Jan. 29, 2020), https://www.naimmigration judge-usa.org/images/uploads/publications/HHRG-116-JU01-Wstate-TabaddorA-20200129.pdf.

[22] Platoff, supra note 20.

[23] See infra Section I.B (outlining Germany’s asylum procedures).

[24] Grundgesetz [GG] [Basic Law] § 16a, translation at https://www.gesetze-im-internet.de/englisch_gg/englisch_gg.html#p0092 [hereinafter Basic Law]; Asylverfahrensgesetz [AsylVfG] [Asylum Procedures Act], Sept. 2, 2008, BGBI (Ger.) [hereinafter Asylum Procedures Act].

[25] Asylum Procedures Act § 3(b).

[26] Jochen Lehmann, Legal Systems in Germany: Overview, Thomson Reuters Practical Law (last updated Jan. 2020), https://uk.practicallaw.thomsonreuters.com/w-007-7132?transitionType=Default&contextData=(sc.Default)&firstpage=true#co_anchor_a269072.