NOI 26: U.S. Immigration Courts: Part 2

Today we're covering how the immigration courts are organized, and how the Trump Administration is able to wield so much power in how immigration judges carry out their duties.

Jacob Tingen: Hello Nation Of Immigrants. Today we are back with another episode about US immigration courts. Last time we did start talking about this topic, and we talked about immigration courts in tents and trailers at the border of the United States and Mexico, and how that hasn’t led to the most transparent and most apparently fair process known to mankind. Today we’re going to talk about just kind of some systemic issues in the immigration courts generally. So, let’s get going. And here’s the intro.

Announcer: You’re listening to Nation Of Immigrants.

President Obama: America is a nation of immigrants.

Announcer: A podcast about US immigration law, with your host Jacob Tingen.

Jacob Tingen: Okay, so as I said, this is another episode about US immigration courts. But before we even get to that topic, one of the things I wanted to say was thank you. The last video that we recorded… Not last video, two videos ago, that we recorded a has been viewed more than a thousand times. We have more than a hundred subscribers now on our YouTube channel. So, very proud of that, thank you very much. And thank you for following and thank you for believing in this podcast, and the value that we’re adding to the immigration debate. I’m just really kind of grateful and humbled that people would bother to listen to me. But, again, like I said, I’m happy that this is happening and I hope that as we continue to talk about different immigration topics, that we can bring a lot of good things to light and that it can have an overall positive effect on our society and how we’re treating others.

Jacob Tingen: Which is the point of this podcast, is to raise awareness about this issue, help educate people who want to know more about immigration and what’s going on in our country today. And just kind of, frankly, extend a helping hand to immigrants and people who are new to this country. So thank you once again. And for those who are interested in following, please subscribe to YouTube, follow us on Facebook, Twitter. You can follow the firm’s Facebook page, my Facebook page. For those of you who want to support the podcast, and some of you have begun to actually donate, so we appreciate that. Thank you very much. Please visit me at where you can donate and support the podcast and help us keep providing content. And help us, frankly, we plan to use those funds to help pay for immigrants legal bills. So, this is a wonderful thing and we’re glad that people are reaching out and helping. So, thank you, thank you, thank you.

Jacob Tingen: Alright, well, so US immigration courts. I wanted to talk about just some bigger issues in the immigration courts and I think the place to start is just this concept of due process. I think we all understand a court is supposed to be fair, a court is supposed to be fair and judges should be impartial. And there shouldn’t be any kind of external stress upon judges to cause them to make decisions that aren’t truly impartial, or external forces to make them make decisions that aren’t in accordance with standards of due process. And what I mean by that is it takes time to truly consider and make a decision on someone’s destiny and someone’s life.

Jacob Tingen: There’s a judge here locally, he’s not an immigration judge, and I haven’t been in front of him. But one of my partners was telling me about this experience she had, where she went to this court and the judge started off and said, “I just say this frequently, when I bring court into session. Court, the government has the power to take away your property, to separate you from your children, and to take away your life.” Which is kind of mind boggling when you look at the power of government that way. He says, “The government has the power to do these things.” And then he said, “So, let’s do it right. Let’s take it nice and slow. Let’s give due process due process.” And I think that that’s kind of an impressive way to bring court into session. It’s to say, hey, this is serious business. We’re not playing around here and everyone has rights and everyone is a person and everyone deserves to have consideration given to their life and what they’re doing.

Jacob Tingen: So, in immigration court… I’ve never had immigration court start like that, but, but it would be fascinating if it did. But in immigration court, there have been comments on the news where judges have gone and written opinion pieces and appeared on news and said, “Hey, Immigration Court in many of these asylum decisions, are life and death decisions.” And they said, “Given the way that the immigration courts are currently organized, judges are called upon to make life and death decisions in a traffic court setting.” And I’ll explain what those judges mean by that in a bit. But they’re essentially saying, “Hey, we’re doing death row trials, essentially, in a traffic court setting.”

Jacob Tingen: What do they even mean by that? Well, not everyone has been to traffic court, but I’m sure many of you have. If you get a ticket, a lot of times you can just go up to the window of the court and pay it. But if you do go and try to defend against it, or you want to make a plea, or try to take some kind of traffic course or remediate so you don’t get points on your driving record, or whatever it is you choose to do. If you go to traffic court, these aren’t the most nuanced legal issues in the world. You either did it or you didn’t. And my experience in traffic court has been that judges… And again, I’m not a criminal defense lawyer, we do have that available here at the firm, but I don’t do it. But the judge just says, “Hey, guilty, not guilty. I’m going to give you driving school. Oh, this is your third time.” Things like that.

Jacob Tingen: But it moves really fast and it just kind of goes straight through. And while I believe in due process, I’m just going to throw this out there that maybe traffic court doesn’t meet that standard, the high standard of constitutional due process in every respect. But it’s just traffic court, right? And of course if you do have a significant traffic court issue, there are devices and procedures in place where you can kind of slow things down and get due process. I’m not saying that that’s not the case. And I do think that Virginia judges that I’ve interacted with have been very professional and those kinds of things. But I’m just saying that traffic court moves fast and if you don’t have representation and if there is something more on the line than just a fine, it’s good thing that there are procedures in place to slow that down.

Jacob Tingen: In immigration court there are opportunities for due process. I’m not going to say that there aren’t opportunities for that at all, but there are a lot of external pressures that can cause us to lose sight of the goal and to fall short of the mark of due process. And then I think there’s also a lot of systemic kind of organizational pressures that prevent giving immigrants the impartial and fair process, that frankly everyone deserves. Okay. So, let me explain one of the first reasons why this is. Our government is set up in three branches, welcome to school house rock. There’s the legislative branch, which is Congress. There’s the executive branch, which is the President and his administration. And there’s the judiciary, the judges. And so a lot of people might think, oh, okay, the immigration judges and the immigration immigration courts are under the judiciary. They’re under that branch of the government, they’re completely impartial. They’re completely separate from these more political sides of our government, the legislative and the executive. But that’s not the case. The immigration judges are 100% within the bounds, and essentially control, of the executive branch of government.

Jacob Tingen: And one of the reasons that this has happened is that Congress… And I was reading some interesting articles about this. Congress has been ceding power to the executive branch of government over many years. It just seems to them that we can’t agree on anything, I guess, and so the easiest way to get things organized is to say, well, this is generally what we want to have happen. Let’s just hand this over to the executive branch and they’ll deal with it. But what that’s turned out to accomplish is that we have all of these agencies that have these administrative courts, and the immigration courts are administrative courts, created by government agencies. And so we’ve got these agencies with these courts inside of them and they are under a lot of pressure from whoever’s President at the time to do things in a certain way.

Jacob Tingen: Now again, they’re still judges, and I think everyone understands and appreciates the concept of the impartial judge. But I’ll just point out some of the stresses that judges have upon them currently. So, we’re aware of the large immigration court backlog. It’s something like more than a million cases are pending in the immigration court. And what this turns out to cause is that in the immigration court, if I bring a case for asylum and I want my client to get due process, they merit an individual hearing. And those hearings need several hours to be heard and so those hearings are being scheduled out in 2023. Now you might say, oh, that’s terrible. But at the same time, that’s the due process protection we have in the system we currently have. We need more judges in order to spread out these cases and get them through more quickly. So, that’s why that that’s happened. It’s not that we couldn’t adjudicate more cases more quickly, it’s we just don’t have the judges for it. And I know that the Trump Administration is taking steps to hire more judges, so that we can determine these cases more quickly.

Jacob Tingen: Some people think, oh, well immigrants are just taking advantage of the backlog. But I have many, many clients who say, “You mean I’m not going to know for four years?” And they’re upset by this. So, I don’t think that that’s an accurate portrayal of how things really are. So, one of the stressors that’s upon these judges is that they’re being told or given quotas for the number of cases they have to resolve in a given year. And the quota that’s been out there is 750 cases per year.

Jacob Tingen: Now, there’re only, what, 200 work days in a year? And judges have to do… There’re two primary kinds of hearings, there are master calendar hearings where people come in, it’s kind of like a preliminary hearing. You get 40 people all in the courtroom and they are hard one at a time for about 5 to 10 minutes a piece. And you hear them all day, master calendar hearings, and they kind of say, “Hey, look, I’m going to apply for asylum. Let’s set a date.” Or, “You know what? I’ve got this other kind of unique situation that’s a little more nuanced and I need to ask for a continuance to have something resolved over at USCIS first.” And those kinds of issues. So you’ve got master calendar hearings. So, most judges have a lot of master calendar hearings. And then in between that, they have individual hearings. Now, they’ll schedule an individual hearing in the morning and an individual hearing in the afternoon. So, at most, individual hearings that are resolved it’s about 400, but judges have a quota to resolve 750 cases per year.

Jacob Tingen: That’s kind of an external pressure on these judges to do something that’s either impossible or that would violate notions of due process. So, one of the issues that I’m butting into, and kind of wondering how to deal with myself frankly, is that I’ll have a case that I think needs more than the standard two or three or four hours that you need for an individual hearing. But a judge won’t schedule my case for the entire day at the immigration court. Sometimes if you’ve got an asylum case, then you’ve got a client who has suffered significant trauma. You’ve got a client who maybe did or did not make a police report, or they have a unique situation in their country, and so you have to have a country conditions expert come in and testify. And some clients might have multiple witnesses, or in some cases you might have multiple family members who have all fled and all need to share their version of events.

Jacob Tingen: But because of the quota, a judge won’t be willing to schedule you for more than three or four hours. Even though to hear that case, to hear a psychologist, a mental health expert, to hear a country condition’s expert, and to hear three or four witnesses, it’s going to take more than four hours. And to give the government the opportunity to cross examine all of those people, it’s going to take more than three or four hours. And then when you take it back to that quote that I said from this one judge, is that we’re deciding death penalty cases in a traffic court setting. Yeah. And so I find that frequently we have judges who, I don’t think it’s necessarily their fault, but feel pressure to resolve cases quickly. And so I don’t have time, or won’t be given time, to present all of the facts in a case that might be relevant. This is a real concern. People are talking about this issue.

Jacob Tingen: But then here’s the final issue that I want to bring up about this topic, and I don’t mean to just beat up on the Trump administration, but it is easy to do in the immigration sector, is this. One of the courts with the lowest approval ratings… And this is maybe the topic for the next episode is, why the disparity? But in the Atlanta immigration court, it’s like 0% to 10% of asylum applications are granted. It’s incredibly low. It’s extremely low. Though that court adjudicates on average, those judges adjudicate about 1500 cases per year, I read in one recent report. The New York immigration court has one of the highest asylum grants in the nation and they only adjudicate about 500 cases per year. So, the thought is, well, why are they pushing for more adjudications? And it stands to reason that they’re really pushing for more denials, because courts that adjudicate more tend to deny more. And so it just seems to be a numbers game. And that’s frankly the result of a failure of due process.

Jacob Tingen: Now this needs to be talked about because one of the movements that is out there in the legal community is that there needs to be a separate immigration court, independent of the executive branch. And we’ll talk about this in one of our future US immigration court episodes. And then I also had prepared a slide from a presentation I gave over the summer about attorney general certification, which we didn’t even touch on today, but it’s an important topic. So, US immigration courts, we’ll keep talking about this topic, it’ll keep coming up. And I saw some news today that I kind of wanted to address, so we’ll have to split this up over several episodes, but keep listening. If you’re interested in the topic of the pressures on the immigration courts and how maybe they’re not the fairest of places, there’s a lot to be said. And by saying it, I don’t mean to denigrate or cast any shade on the work that immigration judges do. I think much like teachers and other people, they’re highly underappreciated. Immigration judges do an important work.

Jacob Tingen: So, yeah, that’s it for Nation Of Immigrants today. We’ll be back with more on this topic in the future, and thanks again for listening. Support, watch, follow. Thanks everybody. Take it easy.

Announcer: Thank you for listening to Nation Of Immigrants.

President Obama: America is a nation of immigrants.

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