The Washington Post: “Immigration judges say proposed quotas from Justice Dept. threaten independence”

by Joseph McKeown

The Trump administration is attempting to impose “numeric performance standards” on federal immigration judges in order to reduce the immense backlog of cases, a move that many fear will threaten judicial independence.  In a proposal made by the White House earlier this month as part of negotiations regarding the Deferred Action for Childhood Arrivals (DACA) program, the Trump administration says that their intention is to “establish performance metrics for immigration judges.” More specifically, documents obtained by the Washington Post show that the Justice Department "intends to implement numeric performance standards to evaluate Judge performance." Dana Leigh Marks, the spokeswoman and former president of the National Association of Immigration Judges, says this is alarming. “That is a huge, huge, huge encroachment on judicial independence. It’s trying to turn immigration judges into assembly-line workers.”

Federal immigration judges are facing a backlog of 600,000 cases (triple the number from 2009), amid a forty percent increase in immigration arrests since President Trump was inaugurated. Cases for a non-detained immigrant can last more than two years on average, with some dragging on much longer. The Justice Department says that while they want judges to decide cases fairly and within the guidelines of due process, the backlog needs to be addressed. Immigration lawyers and advocates believe that the imposition of numerical expectations on judges doesn’t address the problem for the backlog. Prior administrations have expanded immigration enforcement policies without giving courts and judges enough money or resources to help adjudicate cases more speedily.

A Government Accountability Office (GAO) report on delays in immigration cases showed that judges commonly cited a lack of adequate staff as a cause of the backlog, but also that “immigration judges…do not have sufficient time to conduct administrative tasks, such as case-related legal research or staying updated on changes to immigration law.” This is having serious consequences, as immigration judges have burnout rates similar to that of prison wardens, with caseloads exceeding 2,000 each. “People’s lives are at risk in immigration court cases, and to force judges to complete cases under a rapid time frame is going to undermine the ability of those judges to make careful, well thought-out decisions,” Gregory Chen, the director of government relations for the American Immigration Lawyers Association (AILA), says.

The judge’s union notes that the current language in their contract prevents the federal government from rating immigration judges based on the number of cases they have heard or how long the cases take to process. The Justice Department is now attempting to rescind this language, which advocates believe would violate federal regulations that require judges to “exercise their independent judgment and discretion” when they decide cases. Normally, federal judges are not subject to performance quotas; however, Attorney General Jeff Sessions believes that the proposed numeric performance standards are ‘reasonable' for immigration judges. “If followed, it will produce an immigration system with integrity and one in which we can take pride,” Sessions says. Sessions also recently claimed that the US asylum program was “subject to rampant abuse and fraud," which may help explain why his Justice Department is pushing quotas to speed up the removal process.

Many are speaking out about imposing numeric performance standards. The National Association of Immigration Judges has released an extended memo about why they believe performance metrics are a threat to due process and judicial independence. They also released a statement they provided to the Senate Judiciary Committee Oversight Hearing on the Department of Justice. AILA has also issued a policy brief arguing against these mandatory quotas. “Immigration judges should have one goal and that goal should be the fair adjudication of cases,” Heidi Altman, the director of policy at the National Immigration Justice Center, tells the Washington Post. “That’s the only metric that should count.”