Stacking the deck

Immigrants, asylum-seekers deserve better than hard-liners on the board of appeals.

Many Americans view immigrants who cross the border illegally as lawbreakers, pure and simple. Even when there is understanding that violence or economic desperation has propelled migrants to leave their homes, the verdict is often final: The law is the law.

It is just this principle that the Trump administration has claimed justifies its immigration policies. But its actions belie the rhetoric. Take, for instance, its aggressive stance toward asylum-seekers, which has thrown one roadblock after another in the way of those seeking due process while making their asylum claims.

Now, the administration is seeking to stack the deck against would-be immigrants once more, this time in the very courts where they are, finally, permitted to make their case.

Earlier this year the Department of Justice changed hiring procedures for the Board of Immigration Appeals, doing away with a probationary period in order to fast-track six new members of the appeals board with hard-liner credentials — including high rates of denials for asylumseekers and, in some cases, repeated accusations of bias and mistreatment of immigrants, according to a report by CQ Roll Call.

The new board members had asylum-denial rates over 80 percent, in keeping with the administration’s get-tough approach to those seeking refuge. One of the judges, Earle B. Wilson, approved only 2 percent of cases. The average denial rate is 57 percent.

While the judges are qualified to be board members, the six hires were unusual, said MaryBeth Keller, former chief immigration judge of the United States. Traditionally the positions to the appellate board are filled with candidates from diverse backgrounds, including government, the private sector, academia and nonprofits.

“I can’t imagine that the pool of applicants was such that only (immigration judges) would be hired, including two from the same city,” Keller told the Asylumist legal blog. “I’d like to think that the pool of applicants was more diverse than that.”

That diversity and balance is critical for a powerful board whose decisions are binding on all Department of Homeland Security officers and immigration judges, and whose rulings set precedent for all cases — including asylum, deportations and visas — that come before the immigration courts.

This latest move fits into a pattern as the administration continues to politicize the system. Immigration courts do not belong to the independent judiciary. Instead, they fall under the Executive Office for Immigration Review, an office of the Department of Justice, and ultimately under the control of the attorney general.

Last year, then-Attorney General Jeff Sessions limited the discretion of immigration judges to administratively close cases, a procedure that had allowed courts to offer relief for immigrants who were not a priority for deportation. He also prevented them from granting continuances, tools judges used to prioritize cases and manage their dockets. The administration has also set a quota of 700 cases per year, leading judges to rush through the process or risk facing disciplinary measures.

Although these actions don’t amount to direct pressure on how judges rule on specific cases, they compromise their ability to apply the law effectively and fairly, said Ashley Tabaddor, president of the National Association of Immigration Judges.

In an October letter to EOIR, the association also decried an interim rule change that gives an appointee of the attorney general the power to adjudicate cases and to urge greater cooperation with DHS, which polices our borders through Customs and Border Protection.

That works against Congress’ intent to ensure immigration cases are decided free of pressure from the enforcement side of the law. In practice, the change also grants the director the authority to decide appeals — which are binding on all immigration judges — and “rewrite immigration law in conformance with the politically motivated policy agenda of any administration,” Tabaddor wrote.

President Donald Trump’s hardline views on immigration are out of step with those of most Americans, who studies show support comprehensive and common-sense reform. But regardless of one’s thoughts on this issue, all Americans believe in the rule of law.

The administration must stop its abuse of the immigration court system before it gives politics a lasting precedence over the law.