Columnist Razvan Sibii: Asylum-seekers get secondhand justice

  • In this 2019 file photo, a sign for the Department of Justice hangs in the press briefing room at the Justice Department, in Washington. AP

Published: 10/18/2021 12:47:55 PM

If you went to school in America, or at least grew up watching American TV, you know the theory: the U.S. government has three co-equal branches — the executive, the legislative and the judiciary — and they keep each other in check.

When the police come for you, they’re supposed to justify their interest in you in front of a judge whom they (or their elected superiors) can’t control and can’t intimidate. And, yes, the system does work as intended sometimes: some of former President Donald Trump’s most toxic ideas, for example, were shot down by judges who told him to go fish.

But if you’re a migrant seeking refuge into the U.S., you’re not getting justice from the judiciary branch, but from the same branch that took you into custody at the border: the executive. And that’s because immigration judges are not independent judges; rather, they are part of an agency within the Department of Justice and answer to the attorney general who, of course, is a political appointee of the president of the United States.

In other words, the prosecutor seeking to deport a migrant answers to the same exact authority as the judge who’s supposed to impartially adjudicate whether that migrant should be deported or not. What’s more, the attorney general can overrule any decision one of their untenured immigration judges has reached, and then order all their judges to treat the new ruling as a binding precedent.

How did we get here? According to Alison Peck’s 2021 book, “The Accidental History of the U.S. Immigration Courts,” the answer lies in a period of American history when immigration suddenly switched from being a primarily labor-related issue to being a primarily security-related issue.

In 1940, against the background of increasing, but unfounded, fears of a “fifth column” of German spies, President Franklin Roosevelt moved immigration services from the Department of Labor, where it had been housed since 1903, to the Department of Justice — the better to keep watch for seditious behavior among immigrants. The switch was made, in part, at the insistent lobbying of one Rep. Al Gore Sr. and with the reluctant approval of Labor Secretary Frances Perkins, a graduate of Mount Holyoke College and the first woman to serve in a presidential Cabinet.

After the Sept. 11 attacks, the immigration enforcement apparatus was moved into the Department of Homeland Security, but the immigration courts have stayed in the Department of Justice.

As with virtually all aspects of our broken immigration system, the inherent conflict of interest presented by the housing of immigration courts in the DOJ was thrown into stark relief by the actions of the Trump administration. In their efforts to severely curtail all immigration to the United States, Trump’s merry band of nativists — Attorney General Jeff Sessions and Senior Adviser Stephen Miller foremost among them — shamelessly used every tool at their disposal to politicize the work of immigration judges and enlist them as deportation agents in black robes.

They hired and promoted judges who demonstrated a “tough-on-asylum-seekers” attitude. They imposed adjudication quotas whose net effect was that judges had to speed through cases rather than afford each one due process. They prevented judges from giving migrants more time to build their cases. They messed with the physical locations of the courts, with the migrants’ lawyers, with the court interpreters, and with the judges’ union.

And Trump’s attorneys general didn’t hesitate to snatch a record number of cases away from their judges and proceed with making their own rulings designed to shut off migrants’ avenues for seeking asylum. The most wide-ranging such ruling came in 2018, when Sessions announced that, according to his interpretation of America’s immigration laws, victims of domestic and gang violence did not qualify for asylum. That was, of course, his way of targeting the many asylum-seekers coming from countries such as Guatemala, Honduras and El Salvador, where the imminent danger is generally not the government but gangs and murderous boyfriends.

Now that Joe Biden’s the president, however, are these problems history? No, they’re not, because: 1) The Biden administration has shown a disturbing preference for keeping Trump-era immigration policies in place, and 2) The problem of the immigration courts is systemic, not merely a question of one’s attitude toward immigrants.

“Multiple administrations in both parties have interfered, and have engaged in efforts to shape the work that we do. It was evident in the last administration, but we saw it with other administrations, too,” Mimi Tsankov, the president of the National Association of Immigration Judges, told me in a phone interview. Like his predecessors, Biden has “reversed key precedents” and has “changed the dynamic of [the judges’] work,” and all of that continues to undermine the judges’ impartiality.

The solution, Tsankov says, is the creation of an independent immigration court by Congress under the powers the Constitution confers to it in Article 1. Such an “Article 1 court” would be akin to the U.S. Tax Court or the U.S. Bankruptcy Court, and its judges would be nominated by the president and confirmed by the Senate, and would enjoy the protection of some type of tenure.

Right now, the fate of would-be American citizens often rests in the hands of a single “Supreme Justice” — a politician who largely gets to tell immigration judges what cases to consider and how to consider them. Whether that individual is a die-hard nativist (like Sessions) or a respected former judge (like Biden’s current Attorney General Merrick Garland), they simply shouldn’t be able to play judge, jury and executioner with some of the world’s most vulnerable people.

Razvan Sibii is a senior lecturer of Journalism at UMass Amherst. He writes a monthly column on immigration and incarceration. He can be contacted at

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