The Department of Justice has announced it will evaluate immigration judges on how many cases they close and how fast they hear cases, a move that judges and advocates criticize as potentially jeopardizing the courts’ fairness and perhaps leading to far more deportations.
The policy has been in the works for months, as Attorney General Jeff Sessions and the Trump administration have been working to assert more influence over the immigration courts, or the separate court system built just for hearing cases about whether noncitizens have a claim to stay in the US.
US law gives the attorney general broad and substantial power to oversee and overrule these courts, as opposed to the civil and criminal US justice system, which is an independent branch of government. In the immigration courts, judges are employees of the Department of Justice.
Sessions has been testing the limits of that authority in multiple ways, and in a memo Friday, the director of the immigration courts informed judges they would now be evaluated on a set of metrics including the speed and volume of cases heard.
The Justice Department says the move is designed to make the system more efficient. The immigration courts have a backlog of hundreds of thousands of cases, and it can take years for an immigrant’s case to work its way to completion. In that time, the individuals build lives in the US, and critics point to the immigration courts’ backlog as a major factor in the number of undocumented immigrants living in the US.
“These performance metrics, which were agreed to by the immigration judge union that is now condemning them, are designed to increase productivity and efficiency in the system without compromising due process,” a Justice Department official said of the memo. The official added that any judges who fail to meet performance goals would be able to present extenuating circumstances to the Justice Department.
The memo was first reported by The Wall Street Journal.
Speeding up the courts and cutting down the backlog has been a priority for the department under Trump and Sessions. But advocates and the immigration judges union have opposed the changes, saying setting numerical caps on the amount of time judges can spend on cases and the number of cases they must close in a year could in fact jeopardize due process.
Critics argue that by making the process quicker, the courts could stack the decks against immigrants to deny them the time to prove they have a legitimate right to stay in the country. Asylum seekers, for example, are often traumatized, unfamiliar with English and with US law, and may not have advanced education or the ability to quickly secure legal representation to help make their cases, let alone quickly produce evidence and witnesses. The immigration courts allow immigrants to have counsel, but there is no requirement that legal assistance is provided by the government, unlike in criminal courts.
“Creating an environment where the courts care more about the speed than the accuracy, and where judges are evaluated and even rewarded based on quantity rather than quality is unacceptable and a violation of due process,” said Laura Lynch, a senior policy counsel with the American Immigration Lawyers Association.
Lynch added that the consequences of the decision are not trivial: In cases where the individual applying for asylum could be persecuted in their home country, the ruling could put someone’s life at risk.
“Our biggest concern about asylum seekers and vulnerable populations is that immigration judges are making these important decisions, often life-and-death decisions, every day,” Lynch said. “They must be afforded the time to properly make that decision.”
In the memo, obtained by CNN and sent to all immigration judges on Friday, the Justice Department lays out specific measures of performance for judges, including completing at least 700 cases per year – the equivalent of roughly three per day – and finishing cases where the immigrant is detained in three days from the hearing or in 10 days when the immigrant is not detained.
According to the Justice Department, the average immigration judge currently completes 678 cases per year.
If judges are not performing, they could be fired or potentially moved around the country – a tactic that could push judges out of the system.
Retired longtime immigration judge Paul Schmidt, a staunch critic of the administration, says immigration judges will get the message from the Justice Department.
“Evaluating somebody’s performance on the number of cases they close is obviously going to have some effect on the substance of the decisions,” Schmidt said, saying Sessions’ efforts to tighten immigration law speak volumes. “You know the boss wants removal orders, not grants – all those things have to have some sort of effect.”
The union that represents immigration judges has been fighting the move, which is now allowed in their collective bargaining agreement, according to the Justice Department. But in a January email from the president of the National Association of Immigration Judges obtained by CNN, Judge Ashley Tabaddor informed judges that “the agency had provided assurances to NAIJ that no individual IJ based quotas and deadlines will be imposed until they have fulfilled their obligation under labor law to bargain with us” and vowed that the group would oppose any such move.
“NAIJ is working diligently to fight the implementation of any ‘numeric based performance measures’ on judges, and ensure that any future standards that may be imposed on judges or the Immigration Courts are legally defensible, fair, and would not encroach on our independent decision making authority,” Tabaddor wrote in January.
Tabaddor did not immediately respond to a request for comment Monday.
UPDATE: This story has been updated with a corrected figure from the Justice Department.