Immigration Judges Seek Independence from Department of Justice and Attorney General
An article in the Los Angeles Times on January 31, entitled "Immigration Judges Call for Independent Court," pointed readers to a document that is a list of grievances against the Department of Justice and the Attorney General issued by the Union representing Immigration Judges.
The document, entitled "An Independent Immigration Court: An Idea Whose Time Has Come," is a position paper by the National Association of Immigration Judges and was composed in January, 2002. Some grievances pre-date September 11 and the controversial actions taken by the Attorney General in the wake of the terrorist attacks. A "blatant example" of the undercutting by the INS of the authority of the Immigration Judges concerned the contempt authority of the judges mandated by the 1996 immigration law. See INA 240(b)(1): "The immigration judge shall have authority (under regulations prescribed by the Attorney General) to sanction by civil money penalty any action (or inaction) in contempt of the judge's proper exercise of authority under this Act." Here is the complaint: "When Immigration Judges protested the lengthy delay in implementation, it was discovered that the Attorney General had failed to do so, in large part, because the INS objects to having its attorneys subjected to contempt provisions by other attorneys within the Department, even if they do serve as judges."
Since September 11 the list of grievances has grown. A "continuation" of the trend to undermine the authority of Immigration Judges was the October 31 interim rule of the Attorney General, published in the Federal Register, that "insulates" INS custody decisions from Immigration Judge review by granting an automatic stay of a judge's order of release where the initial bond was set by the Service at $10,000 or higher. The position paper comments: "Since the INS is the entity which sets the initial bond amount, this provision guarantees it the ability to prevent an alien's release from custody during the pendency of administrative proceedings, despite the statutory provisions which entitle an alien to a bail re-determination hearing." The statute, however, also seems to construct a brick wall around the bond determination of the Attorney General at INA 236(e): "The Attorney General's discretionary judgment regarding the application of this section [Apprehension and Detention of Aliens] shall not be subject to review. No court may set aside any action or decision by the Attorney General under this section regarding the detention or release of any alien or the grant, revocation, or denial of bond or parole." If a federal court is being commanded here to defer to the Attorney General, it is hard to see how an immigration court, even if made independent of the Department of Justice by statute, could do otherwise.
The position paper went on to mention the then pending lawsuit against the Attorney General to protest the practice of closing all deportation hearings, despite regulations requiring that they be open to the public, subject to exceptions to be made by the Immigration Judge. 8 CFR 3.27. The federal complaint that is now pending challenges the constitutionality of the policy and/or practice set forth in the memo of the Chief Immigration Judge Michael Creppy dated September 21, 2001, requiring the closure of all proceedings to the public and press when so directed by that judge. The complaint can be found on the American Civil Liberties Union web site: www.aclu.org.
The main point of the position paper is this: "When reduced to its simplest form, in the current structure that Attorney General supervises both the prosecutor and the judge in Immigration Court proceedings. One does not need legal training to find this a disturbing concept which creates, at the very minimum, the appearance of partiality." The position paper strongly recommends the creation of an independent Immigration Court as an agency within the Executive Branch. This would require, in effect, the legislative diminution of the authority of the Attorney General in immigration matters. Desirable as it is, it is hard to see that happening in today's climate, which is affected by the fog of war.
About The Author
Carl R. Baldwin graduated from Columbia University Law School in 1980, and became a member of the New York State Bar a year later. He worked for three years with the New York City Law Department, and then entered solo practice in immigration law, which he has continued to the present. His work with clients has included asylum applications, deportation defense, visa processing, adjustment of status, and naturalization. He has also worked to implement special laws, such as the 1986 "amnesty" (The Immigration Reform and Control Act), and the 1998 Haitian reform act (The Haitian Refugee Immigration Fairness Act). Mr. Baldwin is the author of Immigration News Monthly. He can be rached by e-mail at Carl.Baldwin@immigrationnewsmonthly.com.
He has written a book on immigration law, called "Immigration Questions and Answers," 1997, Allworth Press, 10 East 23rd Street, New York, NY 10010 (212) 777-8395. The book, which contains essential background information about how the immigration law works, can be ordered in both an English Edition and a Spanish version from www.amazon.com