BY NOLAN RAPPAPORT, OPINION CONTRIBUTOR — 04/26/18 11:30 AM
President Barack Obama’s immigration policies had the unintended consequence of encouraging illegal immigration. By focusing enforcement efforts primarily on aliens who had been convicted of serious crimes or who had been caught near the border after making an illegal entry, he created what I call a “home free magnet.”
Aliens wanting to enter the United States illegally knew that they would be safe from deportation once they had reached the interior of the country unless they were convicted of a serious crime. This was a powerful incentive to do whatever was necessary to enter the United States.
President Donald Trump destroyed this magnet with tough campaign rhetoric and his executive order, Enhancing Public Safety in the Interior of the United States, which greatly expanded enforcement priorities. No deportable alien is safe under Trump’s enforcement policies.
But previous administrations have left Trump with another enforcement problem that he has not resolved yet.
The immigration judges who decide whether an alien in removal proceedings will be deported have been selected by successive administrations with varying views on immigration enforcement, which has produced an immigration court of 350 judges who have conflicting views on how immigration law should be applied.
According to a Reuters analysis of thousands of immigration court decisions, whether an alien in removal proceedings is allowed to remain or is deported depends largely on which immigration judge hears his case and where the hearing is held.
Attorney General Jeff Sessions is trying to deal with this problem. In a memorandum he sent to the Executive Office for Immigration Review (EOIR) on December 5, 2017, he declared that national interest requires the immigration judges and the Board of Immigration Appeals (Board) to apply the immigration laws as enacted, irrespective of personal policy preferences.
But the immigration judges hired by previous administrations may not have the knowledge and experience needed to be able to carry out that directive or be willing to do it.
How serious is this problem?
A TRAC Immigration study concluded that the outcome at asylum hearings over a recent six-year period depended largely on where the hearing was held and which immigration judge was assigned to the case.
For 6,922 asylum seekers whose applications were adjudicated at the San Francisco Immigration Court, the likelihood of a denial varied from only 9.4 percent up to 97.1 percent, depending on which immigration judge handled the case.
For 1,233 individuals whose cases were heard at the Newark Immigration Court, the likelihood of a denial ranged from 10.9 percent up to 98.7 percent, depending on which immigration judge handled the case.
In other words, the likelihood of being granted asylum in these courts could be as high as 90 percent or as low as 3 percent, depending upon which immigration judge handles the case.
GAO makes similar findings in its November 2016 report on variations in the outcomes of asylum applications across immigration courts and judges.
Examples of improper hiring practices.
Political considerations. A July 28, 2018 report from the Office of Professional Responsibility and the Office of the Inspector General at the Department of Justice reveals that the office of former Attorney General Alberto R. Gonzales let political considerations guide the selection of immigration judges.
His chief of staff, Kyle Sampson, claimed that he thought immigration judge positions were “political” and therefore that it was appropriate to consider political factors in assessing candidates.
He solicited candidates for immigration judge positions from the White House’s Office of Political Affairs, its Office of Presidential Personnel, and its Office of the Counsel to the President.
Potential immigration judge candidates were screened at these offices to establish their “political qualifications.” This included searching databases to determine whether the candidates had made monetary political contributions.
Sampson also accepted recommendations from Republican Members of Congress and from colleagues within the Justice Department who were political appointees.
Affirmative action. On October 5, 2004, the Department of Justice, without admitting wrongdoing, agreed to pay $11.5 million to settle a class action lawsuit alleging discrimination against white male applicants for immigration judge positions.
I was a decision-writer at the Board when the discrimination allegedly was occurring.
A close friend who had received EOIR’s Director’s Award twice for being the most outstanding attorney of the year couldn’t even get an interview for a position as an immigration judge, but women and minority applicants with much less impressive credentials were being hired, some of whom had no immigration experience at all.
Acknowledging the problem. In response to rising criticism of the disparities in the decisions in asylum cases, EOIR has begun to track decisions to identify immigration judges who have unusually high or low rates of granting asylum, but that just highlights the problem, it doesn’t solve it.
Nolan Rappaport was detailed to the House Judiciary Committee as an executive branch immigration law expert for three years; he subsequently served as an immigration counsel for the Subcommittee on Immigration, Border Security and Claims for four years. Prior to working on the Judiciary Committee, he wrote decisions for the Board of Immigration Appeals for 20 years.
Source: The Hill