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Taking Liberty Decisions Away from “Imitation” Judges

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Mary Holper discusses how immigration judges are not truly independent and calls for reform, calling on Congress to remove all custody decisions from the DOJ and grant jurisdiction instead to Article III courts.

Image courtesy of interviewee. June 13, 2024

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The transcript presents an interview focusing on the challenges within the U.S. immigration adjudication and detention systems, particularly regarding the independence and effectiveness of immigration judges and the detention process itself.

Key points include:

1. **Independence of Immigration Judges**: Immigration judges, often referred to as "imitation judges," function under the authority of the Attorney General, which compromises their impartiality and independence. Critics have long condemned this relationship for impacting the quality of justice in immigration proceedings.

2. **Detention System Critiques**: The U.S. immigration detention system is criticized for presuming detention rather than liberty, with too many wrongful detentions that slow down necessary legal processes. Judges working under a system that prioritizes swift deportations may lack the necessary time or impartiality to make fair decisions.

3. **Backlog and Pressure**: The U.S. immigration court system is overwhelmed, with a backlog of approximately 3.5 million cases, leading to hurried decision-making which can adversely affect justice. During periods of high detainment, judges were pressured to meet case completion quotas.

4. **Empirical Evidence and Literature**: The interview discusses various empirical studies and historical critiques dating back to the 1980s that highlight the systemic issues with immigration adjudication and detention, including the impacts of political leadership on deportation rates.

5. **Proposed Reforms**: The speaker suggests bringing immigration detention decisions under the review of federal district courts, utilizing existing procedural protections from the criminal justice system. This video would help ensure that detention remains a last resort and that due process is upheld.

6. **Future Research**: The importance of empirical research to substantiate the claims regarding judge independence and biased decision-making is emphasized. There is also a call for reform within the immigration adjudication system and for immigration enforcement to reconsider the presumption of detention.

7. **Final Conclusions**: The system's current design undermines the fundamental right to liberty and can exacerbate racial biases. Therefore, a reevaluation of how detention decisions are made is crucial for ensuring fairness and just treatment within the immigration system.

The interview underscores the pressing need for reform to enhance the integrity and fairness of the immigration system, focusing on independence for judges and better procedural protections for detainees.

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X-TIMESTAMP-MAP:LOCAL=00:00:00.000,MPEGTS=900000

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Immigration Adjudication System has the judges

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and its appellate judges, which are, who are also called,

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they've also been called Board

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of Immigration Appeals members.

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They work for the nation's top

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prosecutor, the Attorney General.

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So in the US we value an independent judiciary,

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and we want judges to be neutral.

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We want them to be free from politics.

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We don't want them to be taking any one side.

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So this is the problem with the system,

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and this is why has, it has been critiqued for so long.

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And that's what I took up in this article.

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Um, the judges themselves,

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immigration judges themselves have titled themselves

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Imitation Judges

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because they don't consider themselves real judges.

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Hence the, that portion of the title.

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Um, the Immigration Detention System in the US is also

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frequently critiqued for presuming detention with liberty

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as the exception.

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So any detention decision, any procedural protection

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that is made within this presumption of detention

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looks like it's something that's gumming up the works

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and getting in the way.

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It is slowing down the deportation machine as opposed

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to making sure everything happens as quickly

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and as efficiently as possible.

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The Immigration detention system has also been critiqued as

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focusing so much more on crime control

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and not on the pure reason why it exists, which is to ensure

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that somebody shows up to court

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and shows up for ultimate deportation if

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that's ordered in their case.

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Unfortunately, we've come to a place where detention is used

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as a crime control mechanism in the immigration system,

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and then we have judges who are not truly

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free of the prosecutors.

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And the reason why this matters so much now is

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because both of these systems are just buckling under

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the weight of too many cases.

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Right now, our immigration court system has 3.5 million

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cases in its backlog.

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Um, our immigration courts have that many cases

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that they're, that are just waiting to be decided.

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And the immigration detention numbers, they rose

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to an all time high in the Trump administration,

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55,600 cases in 2019.

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They dropped down the numbers in

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during the COVID-19 pandemic to about 13,500.

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And now they've steadily climbed back up.

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And as of right now,

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there are 37,360 people in immigration detention.

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That's a lot of cases to get through.

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And unfortunately, if things have to happen fast, that is

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where justice suffers.

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There have been critiques of the immigration court's lack

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of independence going back to the 1980s to the 1990s,

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the National Association of Immigration Judges,

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which is the Immigration Judges Union, they've been calling

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for an independent immigration court since the

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early two thousands.

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There are empirical studies that show who is in power,

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which president in power is going to impact

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The it's gonna cause.

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So a, a conservative president such as as Donald Trump,

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and the messages that he's sending is going to impact

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and cause more deportations and more bond denials.

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So that means more people in detention,

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more people deported.

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So there's there, there needs to be more

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of those empirical studies, but those do exist.

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Um, there's lots of interesting literature on the

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commingling of the different functions between prosecution

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and judging in the immigration court system.

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Um, the reason why the immigration courts are in the

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Department of Justice comes from a move in 1940

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where they moved out of the Department of Later Labor

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into the Department of Justice, basically in a time

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of fear related to World War ii.

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And then not long

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after that, we have the Administrative Procedure Act passed.

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That's a 1946 law where the, the attempt was

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to tame this giant administrative bureaucracy of government.

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And there was a consensus, which was,

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rather than taking these decisions into the federal courts,

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we would bring the norms of federal courts

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into the administrative agencies.

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And the Administrative Procedure Act then requires the

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prosecutor to be separate from the judge.

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And in 1950, the Supreme Court held

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that deportation proceedings were not

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in compliance with that.

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They had a one-man hearing that was the same person acting

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as prosecutor and judge.

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Now, Congress responded to that decision by take,

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taking immigration proceedings out

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of the Administrative Procedure Act.

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But then there were these slight changes that made the, the,

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adjudicators ever so separate from the prosecutors,

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you know, establishing their own agency,

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the judges started to wear robes.

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They started to call themselves immigration judges instead

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of titles like Special Inquiry Officers.

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Um, they had separate files so the judges couldn't be,

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biased by what was in the prosecutor's file.

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Um, and, but

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but always they've been under the thumb

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of the Attorney General

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and under the direction of the Attorney General.

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Now, what's very interesting is,

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there's an article called War on Independence.

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Um, Steve Gonski wrote it,

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and he describes it in the post nine 11 era.

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We saw a war on the adjudicator's independence.

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And a big part of this was that the Board

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of Immigration Appeals members

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who granted cases most frequently, they got demoted,

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they lost their jobs and no longer were adjudicating cases.

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So they got taken out of the positions of deciding cases,

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sending a message to every other adjudicator that you,

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you rule against the government at your own peril.

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Um, there were political hirings of immigration judges.

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These got exposed in a congressional hearing,

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congressional hearings in 2008

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that was based on their Republican party affiliations.

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Um, there started to be case completion goals,

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and then performance evaluations.

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So the Trump administration required every judge

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to complete 700 cases a year.

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Um, there were new procedural rules

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that allowed board members

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to just rubber stamp immigration judges without a

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deliberative well thought out, written opinion.

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And then, the docket management tools were taken away

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like continuances were no longer allowed administrative

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closure that would allow people time

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to let their applications for say, a green card play out

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before the immigration agency

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and they wouldn't get deported in the interim.

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Those went away as well during the Trump administration.

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So we just see this war on Independence

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and the Department of Justice has the

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authority to do all of this.

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Um, and, in the literature on immigration detention,

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what we see is a lot of scholarship advocating

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for more robust procedural protections

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in detention decisions like court appointed counsel,

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a government born burden of proof instead

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of the detainee bearing the burden of proof, a requirement

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that the immigration judges consider alternatives dete

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detention like GPS monitoring

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or community supervision, a requirement

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that the judge consider a detainees ability to pay

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before setting a bond,

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and prompt probable cause hearings

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before somebody continues detention.

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Um, and then scholars have also critiqued our entire

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immigration detention system as not civil but punishment.

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There's a leading article

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by Cesar Garcia Hernandez on this prove

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or basically arguing

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that immigration detention itself is punishment

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during the Trump years.

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It was interesting because, the, the profession

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of retired immigration judge became incredibly popular.

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Immigration judges themselves felt that they were pawns

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of the deportation machine,

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and they were being told how fast to decide their cases.

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They were being told to not give the non-citizens any time

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to actually get status before they came back

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and had to be deported.

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They were being even told, there was a gag rule

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where judges couldn't even speak out about what was wrong

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with the system or critique the system

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or really say anything publicly.

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Um, so tho those were just, I, I mean,

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I already talked about the firings

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and the, the di demoting, the board members

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who had granted the most cases.

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Um, but basically all of this sent a message to the judges.

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You rule against the government at

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your own professional peril.

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If you wanna keep your job, which is a good government job

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that pays well, you better get in line.

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Um, so some specific examples of immigration judges, lack

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of independence and detention decisions.

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The first one that I talk about in the article is the

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automatic stay.

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This is a regulation that started in 1998.

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It was broadened in 2001.

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And this allows an ice prosecutor

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to override an immigration judge's bond release order.

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So what that means is if somebody fights hard, wins a bond,

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the judge says, you can now get released upon the

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payment of this much money.

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They have the order in hand,

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and that order gets canceled by the filing of a piece

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of paper by the prosecutor,

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and then the person will remain in custody

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for the duration of that appeal.

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The appeal gets expedited, but it really doesn't matter

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because the prosecutor basically can undo the

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immigration judge's order.

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Another example is ICE's rearrest authority.

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If somebody has been released, for example,

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by an immigration judge on a bond,

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ice can take them back into custody without having

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to prove anything to anyone.

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So they don't have to get, they don't have

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to prove probable cause or there's something new,

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or there's a material change in circumstances

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that allows them to take the person back into custody.

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Ice claims. They make those their own determinations of

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that, but they don't have to prove it

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to any immigration judge, any other judge.

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Um, and that is quite different if the detainee loses bond

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because they have the obligation

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of proving a material change in circumstances in writing.

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And that's a pretty hefty thing they have to show

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to get the judge to reconsider her prior bond denial.

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Whereas if the judge has previously granted bond,

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the ice prosecutor can just take someone back into custody

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and that then they're in custody for a decent amount of time

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until they have a new bond hearing

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where they bear the burden of proof.

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Um, the, the detainee bears the burden of proof.

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Um, the third example is attorney general decisions

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that have made, blanket categorizations about

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how immigration judges have to conduct their bond hearings.

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Um, just as a side note,

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the Attorney General can overrule an immigration judge

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and the Board of Immigration appeals through a regulation

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that allows a case to certify to the, the Attorney General.

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So what that means is

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that the nation's top prosecutor gets converted

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to the nation's top adjudicator for immigration cases.

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So a political appointee now becomes the person who

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decides the case, even though we think of the,

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adjudicators as independent.

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Um, and, and a former Attorney general, from the, the,

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the second Bush A the Bush two administration

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defended this in a law review article by saying

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that the Attorney General is basically the boss

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and the supervisor of his employee, which is the Board

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of Immigration Appeals.

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Um, so the, certainly the Attorney General sees the board

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as their employees.

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Um, and so what the Attorney General then can do is set

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forth, this is the new way you have to decide bond cases.

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I don't care if you think he wasn't a danger of flight risk.

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Now, you have to decide, general deterrence

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to future border crossers.

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That was one of the attorney general decisions

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that now judges have to factor in deterrence

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to future border crossers in their, in their bond decisions.

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Um, attorney generals have also said there's just

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simply no jurisdiction.

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Judges just can't decide certain bond hearings,

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certain types of bond hearings.

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And the Attorney general has set forth new rules about

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asylum eligibility, basically, setting forth

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that certain categories

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of asylum seekers just don't have good claims anymore.

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And that then means that,

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the case law would suggest they're less likely to win.

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So that means they're more likely to flee

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and they should lose their bond.

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So those are just three concrete examples of the way

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that immigration judges independence has been undermined

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in detention decisions.

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Start with the modern era,

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and I basically start with the Refugee Act of 1980.

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This is of course, the,

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Congress putting into law our international obligations

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under the refugee convention.

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Um, Jonathan Simon has an article where he discusses

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that right after the passage of the Refugee Act in 1980,

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what we saw was lots

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and lots of new illegal entrants who had a right

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to stay while their asylum claims were processed.

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And the problem he describes is that many of these new

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refugees racially non-white, so from the Caribbean,

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you know, for example, large numbers from Haiti.

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And that created fear.

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And so with fear came a shift in the policy,

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whereas the Attorney General in 1954 had said,

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we presume we're release, we presume Liberty.

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We are closing the doors to Ellis Island

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and not presuming detention.

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That all changed after the passage of the 1980 Refugee Act,

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and then the presumption became detention.

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And so, a class of detainees sued.

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Um, they claimed that the new parole policy discriminated

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against them on the basis of race and national origin.

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They were Haitian,

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and that they, it also violated the proper

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administrative procedures.

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And so then the district court said it violated

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the proper procedures.

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You didn't adequately deliberate before you passed this.

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And the district court, the federal district court ordered

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the release of 1,700 of the class members.

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And that caused the government, the INS at the time,

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the immigration and naturalization service

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to promulgate new regulations, redo all

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of the custody determinations,

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the parole determinations is what they were called.

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And then they that put, the district court sort of

14:19.715 --> 14:22.835
supervising and overseeing the custody determinations

14:23.135 --> 14:24.915
and many people were released on that,

14:25.015 --> 14:27.675
and that that case made its way up to the 19 up

14:27.675 --> 14:28.755
to the Supreme Court as well.

14:29.175 --> 14:31.195
Um, but it's an example of one place

14:31.195 --> 14:33.835
where there's a drastic change in detention policy

14:33.975 --> 14:34.995
by the political actors

14:35.375 --> 14:38.635
and the federal court intervenes to ensure

14:38.705 --> 14:40.955
that the changes put in place actually

14:41.595 --> 14:42.995
followed the appropriate procedures

14:42.995 --> 14:44.835
and the, the appropriate deliberation,

14:45.215 --> 14:48.115
and then oversaw the detention decisions made

14:48.115 --> 14:49.355
by the enforcement agency.

14:50.015 --> 14:52.245
And so then I discussed the detention,

14:52.305 --> 14:56.325
the litigation following the 1996 detention laws,

14:56.335 --> 14:59.485
which also drastically changed immigration detention.

14:59.945 --> 15:02.805
Um, so the Supreme Court in 2001, just months

15:02.905 --> 15:07.405
before nine 11, held that indefinite detention of somebody

15:07.405 --> 15:08.485
who couldn't be deported

15:08.485 --> 15:10.605
because they were stateless,

15:10.865 --> 15:13.205
raised serious constitutional concerns.

15:13.665 --> 15:14.765
And the court decided

15:14.765 --> 15:18.085
that detention became presumptively unreasonable

15:18.815 --> 15:21.605
after six months following a final order of removal.

15:21.705 --> 15:23.805
So at that point, it became the government who had

15:23.805 --> 15:26.125
to bear the burden of showing they could deport somebody

15:26.315 --> 15:28.165
otherwise people would be released.

15:28.705 --> 15:31.565
Um, and this was really the high watermark of the,

15:31.835 --> 15:34.125
Supreme Court lit,

15:34.445 --> 15:36.005
doctrine on immigration detention.

15:36.165 --> 15:38.005
I think because then post nine 11,

15:38.385 --> 15:41.765
we have the Supreme Court in 2003 upholding mandatory

15:41.765 --> 15:44.965
detention while people are fighting their proceedings

15:45.625 --> 15:47.445
on under the due process clause.

15:47.825 --> 15:49.485
But that was because the Supreme Court

15:50.345 --> 15:53.405
had had faulty statistics presented to it by the government

15:53.405 --> 15:56.725
that suggested cases were concluded in two to four months.

15:57.385 --> 15:59.045
Um, and what happened was

15:59.045 --> 16:01.245
that when all the lower courts realized

16:01.395 --> 16:04.365
that cases were not concluded in two to four months,

16:04.365 --> 16:08.285
people were spending years in prolonged mandatory detention

16:08.395 --> 16:09.565
without a bond hearing.

16:10.105 --> 16:12.085
That's when the lower courts intervened again,

16:12.425 --> 16:14.325
and for whole classes of detainees,

16:14.755 --> 16:16.845
they suddenly now had bond hearings.

16:17.145 --> 16:20.285
The lower courts also then in the context of that litigation

16:20.465 --> 16:22.965
and in other litigation, decided

16:22.965 --> 16:25.765
that there should be more procedural protections,

16:26.165 --> 16:27.645
procedural protections that mirror

16:27.715 --> 16:31.125
what happen in criminal pretrial detention, such

16:31.125 --> 16:33.445
as the government should bear the burden of proof.

16:34.025 --> 16:36.765
Um, the judge should have to consider alternatives

16:36.765 --> 16:38.885
to detention and the detainees ability to pay.

16:39.385 --> 16:41.405
Um, so what we saw was whole classes

16:41.505 --> 16:44.165
of detainees getting new procedural protections,

16:44.625 --> 16:47.565
and then the COVID-19 pandemic, I mean,

16:47.565 --> 16:49.645
there ice really dug in its heels

16:49.865 --> 16:52.885
and insisted on detention even though it was so unsafe

16:52.945 --> 16:55.965
to detain people in the conditions where they were detained.

16:56.785 --> 17:00.125
So we have the federal courts intervening in saying

17:00.315 --> 17:03.245
that ICE has to conduct new custody determinations

17:03.745 --> 17:06.165
for all immigration detainees with risk factors.

17:06.785 --> 17:09.645
We also have the federal courts conducting their

17:09.785 --> 17:11.085
own bail hearings.

17:11.595 --> 17:13.645
They were using this little known doctrine

17:13.645 --> 17:16.365
that allows Article three courts to intervene

17:16.365 --> 17:18.685
and release a deta on bail

17:19.225 --> 17:21.325
if there are extraordinary circumstances

17:21.985 --> 17:25.365
and if bail is necessary to basically vindicate the right

17:25.365 --> 17:27.045
that somebody is seeking through their claim.

17:27.585 --> 17:30.725
Um, so all of these are just federal courts looking at the

17:30.725 --> 17:33.445
old map, which is the presumption of freedom.

17:34.065 --> 17:36.765
And that, of course, is in conflict with this idea

17:36.765 --> 17:40.525
that the political branches have total utterly

17:40.665 --> 17:42.645
and plenary control over immigration.

17:43.385 --> 17:45.925
Um, but the political, the,

17:46.105 --> 17:48.925
the plenary power would suggest federal judges stay

17:48.965 --> 17:50.005
out of all these decisions.

17:50.345 --> 17:51.965
And that is not what I've seen.

17:52.545 --> 17:54.245
Um, so immigration judges

17:54.385 --> 17:56.685
and contracts, they, they don't have that map

17:56.685 --> 17:58.005
of the presumption of freedom.

17:58.145 --> 18:00.125
The constitution, they are not

18:00.125 --> 18:01.565
interpreting the constitution.

18:02.355 --> 18:03.525
They are interpreting what

18:03.525 --> 18:05.005
enforcement actors have told them.

18:05.705 --> 18:08.405
And, they are actually conditioned to place the burden

18:08.405 --> 18:10.125
of proof on the applicant on the

18:10.125 --> 18:11.645
non-citizen in all of their cases.

18:11.915 --> 18:14.525
It's never on the government or rarely on the government.

18:14.985 --> 18:18.005
Um, so I certainly don't suggest that all federal courts,

18:18.005 --> 18:19.365
and certainly not the Supreme Court,

18:19.425 --> 18:21.685
has always pro protected the presumption of freedom.

18:22.065 --> 18:23.725
But there are plenty of courts that have,

18:24.465 --> 18:27.285
and those decisions that encouraged me to think about

18:27.675 --> 18:30.285
what it would look like for the federal courts, really

18:30.385 --> 18:32.725
to be deciding somebody's freedom

18:32.785 --> 18:33.965
in the context of immigration.

18:34.065 --> 18:35.645
My proposal is really to,

18:35.975 --> 18:38.005
bring every single immigration detainee

18:38.005 --> 18:39.405
before a federal district court

18:39.785 --> 18:41.365
to review the detention decision,

18:41.585 --> 18:44.085
not the whole deportation case,

18:44.145 --> 18:48.005
but to to decide whether somebody should be released while

18:48.005 --> 18:49.725
their deportation case is going on,

18:50.065 --> 18:52.605
and that the federal courts should use the procedures

18:52.605 --> 18:55.085
that are already in place under the Bail Reform Act,

18:55.295 --> 18:58.565
which governs pretrial detention, hearings for those

18:58.565 --> 18:59.965
who are charged with federal crimes.

19:00.585 --> 19:03.565
Um, I defend this by citing to all the scholarship

19:03.565 --> 19:06.125
that describes immigration detention as punishment.

19:06.545 --> 19:08.845
So I argue that if detention is punishment,

19:09.155 --> 19:12.005
then let's have an independent court decide whether

19:12.005 --> 19:13.325
detention is necessary.

19:13.985 --> 19:16.845
Um, I also argue that the way we've gone about this,

19:16.845 --> 19:20.805
which is basically importing piecemeal the procedural

19:20.805 --> 19:25.525
protections from the criminal pretrial detention system into

19:25.525 --> 19:29.485
the immigration bond hearings doesn't make any sense,

19:29.505 --> 19:30.925
or it, it sort of makes sense,

19:31.385 --> 19:34.005
but it, it's so much easier to just take

19:34.545 --> 19:37.165
the whole detention decision with and,

19:37.165 --> 19:40.445
and put it with the Article three court, with all

19:40.565 --> 19:43.045
of the wraparound procedural protections that already exists

19:43.105 --> 19:45.645
as opposed to telling the immigration judges they have

19:45.645 --> 19:47.445
to apply certain procedural protections.

19:47.945 --> 19:49.485
Um, this leaves immigration

19:49.485 --> 19:52.165
to judges really deciding the issues

19:52.165 --> 19:54.605
that are much more in their wheelhouse, which is,

19:54.715 --> 19:57.405
whether somebody applies, you know, has a good application

19:57.405 --> 19:59.525
for relief from removal such as asylum,

19:59.525 --> 20:01.645
whether someone is actually deportable under the

20:01.645 --> 20:03.205
Immigration and Nationality Act.

20:03.545 --> 20:05.885
Um, whereas these detention decisions,

20:05.885 --> 20:07.085
which are about dangerousness

20:07.085 --> 20:10.645
and flight risk can easily be decided by an article,

20:10.715 --> 20:11.765
article three court.

20:12.025 --> 20:14.645
Um, and then it also takes the article three courts out

20:14.645 --> 20:16.325
of this supervisory role

20:16.345 --> 20:19.405
to the immigration judges right now,

20:19.615 --> 20:21.365
legal issues can be challenged.

20:21.365 --> 20:23.965
So let's say there's a procedural defect in a bond hearing

20:24.435 --> 20:26.005
that can be challenged through a habeas

20:26.125 --> 20:27.525
corpus petition in federal court.

20:28.385 --> 20:30.885
But the problem with that is then if the federal court

20:31.065 --> 20:33.645
agrees there was a procedural violation, they have

20:33.645 --> 20:36.405
to send it back for a due over with the immigration judge.

20:36.505 --> 20:39.205
So it's a very inefficient, roundabout way

20:39.385 --> 20:41.365
to get at the right procedures.

20:41.985 --> 20:45.485
Um, and then also, the detainees, many

20:45.485 --> 20:48.245
of them don't even, can't even bring habeas petitions

20:48.685 --> 20:51.245
'cause they don't have a right to court appointed counsel in

20:51.245 --> 20:52.245
the deportation case.

20:52.665 --> 20:56.285
So if they have the resources to fight their case,

20:56.595 --> 20:59.605
they're gonna spend those resources on the deportation case,

21:00.325 --> 21:01.445
probably not the detention case.

21:01.825 --> 21:03.685
In fact, it, it almost doesn't make sense

21:03.745 --> 21:07.005
to fight the habeas with the scarce resources one has

21:07.435 --> 21:10.845
because the habeas case often becomes moot prior

21:10.845 --> 21:13.485
because it, it, if it takes too long to decide,

21:13.985 --> 21:17.645
the deportation case resolves the matter and then it's over

21:17.945 --> 21:20.565
and the detention is no longer a live issue.

21:20.945 --> 21:23.285
Um, so for all those reasons, it just doesn't make sense

21:23.385 --> 21:24.565
for the federal court

21:24.585 --> 21:27.565
to be doing this constant loop in feedback

21:27.565 --> 21:31.005
and receivership of the immigration judges' bond decisions.

21:31.205 --> 21:33.445
I would say a big takeaway is that it doesn't matter

21:33.755 --> 21:36.525
that our system calls the person a judge,

21:36.665 --> 21:38.805
in the immigration system, if that person works

21:38.825 --> 21:41.845
for the nation's top prosecutor, that is simply

21:42.665 --> 21:44.925
not compatible with entrusting this person

21:44.995 --> 21:46.685
with the important right to liberty.

21:47.345 --> 21:48.965
And I wanna be really clear here

21:49.235 --> 21:52.205
that I am not critiquing any one immigration judge.

21:53.045 --> 21:55.165
I think that there are plenty of immigration judges

21:55.345 --> 21:58.325
who are capable of caring about a detainees liberty

21:58.745 --> 22:02.965
and I have seen judges make very good deliberative decisions

22:03.225 --> 22:04.725
in a bond hearing.

22:05.505 --> 22:08.445
But a judge that works in a system that tells her

22:08.445 --> 22:11.125
to presume detention and to work fast

22:11.785 --> 22:14.485
and that she risks her job if she rules against the

22:14.485 --> 22:18.405
government just doesn't, is inconsistent with this idea

22:18.865 --> 22:20.565
of preserving the right to liberty.

22:21.225 --> 22:23.085
And when we work fast, we all know

22:23.085 --> 22:26.045
that our racial biases make the sorting that we have

22:26.045 --> 22:29.525
to do a lot, that the racial biases go to work.

22:29.945 --> 22:32.165
And the majority of detainees are men of color.

22:32.395 --> 22:35.165
They're wearing orange jumpsuits, they're appearing from

22:35.165 --> 22:37.845
behind a video screen, orange shackles.

22:38.105 --> 22:39.445
So it's really hard,

22:39.505 --> 22:42.965
it would be a psychological uphill battle for a judge

22:43.185 --> 22:45.525
to say this person is not a danger

22:46.075 --> 22:48.845
when the law actually starts from a presumption

22:48.865 --> 22:51.165
of dangerousness and a presumption of detention.

22:52.025 --> 22:54.365
And the evidence that gets presented can have

22:54.885 --> 22:57.845
multiple levels of hearsay, such as police reports,

22:58.275 --> 22:59.325
gang accusations.

22:59.785 --> 23:02.165
So it is a perfect implicit bias recipe.

23:02.545 --> 23:05.285
The judge has to act vast, the evidence is shaky

23:05.705 --> 23:08.565
and, all the presumptions lead to detention.

23:09.425 --> 23:11.485
So I think that that is the problem here,

23:11.585 --> 23:13.205
not any one individual judge.

23:13.505 --> 23:16.125
Um, so I would encourage future research on how

23:16.125 --> 23:17.845
to make this thought project more feasible.

23:18.365 --> 23:21.165
I know in other writings, I myself have advocated

23:21.165 --> 23:23.965
for Article three Judge, review

23:24.025 --> 23:25.845
of the initial decision to detain.

23:26.235 --> 23:28.885
I've also advocated for state court criminal judges

23:28.985 --> 23:31.725
to make a recommendation to ICE against detention.

23:32.545 --> 23:35.605
Um, I hope that there will be more empirical research

23:35.635 --> 23:38.805
that further demonstrates the immigration judge's lack

23:38.805 --> 23:41.245
of independence because this is something that a lot

23:41.245 --> 23:43.245
of people talk about, but I think their

23:43.445 --> 23:44.685
arguments can be bolstered even

23:44.685 --> 23:46.245
More by the empirical evidence.

23:46.745 --> 23:48.245
Um, and then finally, I hope

23:48.245 --> 23:50.845
that the Immigration Adjudication Agency itself,

23:50.905 --> 23:52.885
the Executive Office for Immigration Review,

23:53.195 --> 23:55.565
will take these ideas under careful consideration

23:55.945 --> 23:57.845
as a me a mechanism, if nothing else,

23:57.865 --> 23:59.365
to control their judge's dockets.

23:59.745 --> 24:01.245
Um, ultimately I hope

24:01.245 --> 24:03.245
that all immigration enforcement officers,

24:03.445 --> 24:04.485
political appointees

24:04.625 --> 24:07.085
and legislators stop presuming

24:07.085 --> 24:08.885
that detention is a necessary component

24:08.945 --> 24:10.005
of our deportation system.

00:00 - Immigration Adjudication System has the judges and its appellate judges, which are, who are also called, they've also been called Board of Immigration Appeals members. They work for the nation's top prosecutor, the Attorney General.

00:14 - So in the US we value an independent judiciary, and we want judges to be neutral. We want them to be free from politics. We don't want them to be taking any one side. So this is the problem with the system, and this is why has, it has been critiqued for so long. And that's what I took up in this article. the judges themselves, immigration judges themselves have titled themselves Imitation Judges

00:41 - because they don't consider themselves real judges. Hence the, that portion of the title. the Immigration Detention System in the US is also frequently critiqued for presuming detention with liberty as the exception. So any detention decision, any procedural protection that is made within this presumption of detention looks like it's something that's gumming up the works and getting in the way. It is slowing down the deportation machine as opposed

01:12 - to making sure everything happens as quickly and as efficiently as possible. The Immigration detention system has also been critiqued as focusing so much more on crime control and not on the pure reason why it exists, which is to ensure that somebody shows up to court and shows up for ultimate deportation if that's ordered in their case. Unfortunately, we've come to a place where detention is used as a crime control mechanism in the immigration system,

01:38 - and then we have judges who are not truly free of the prosecutors. And the reason why this matters so much now is because both of these systems are just buckling under the weight of too many cases. Right now, our immigration court system has 3.5 million cases in its backlog. our immigration courts have that many cases that they're, that are just waiting to be decided. And the immigration detention numbers, they rose

02:04 - to an all time high in the Trump administration, 55,600 cases in 2019. They dropped down the numbers in during the COVID-19 pandemic to about 13,500. And now they've steadily climbed back up. And as of right now, there are 37,360 people in immigration detention. That's a lot of cases to get through. And unfortunately, if things have to happen fast, that is where justice suffers.

02:34 - There have been critiques of the immigration court's lack of independence going back to the 1980s to the 1990s, the National Association of Immigration Judges, which is the Immigration Judges Union, they've been calling for an independent immigration court since the early two thousands. There are empirical studies that show who is in power, which president in power is going to impact The it's gonna cause. So a, a conservative president such as as Donald Trump,

03:04 - and the messages that he's sending is going to impact and cause more deportations and more bond denials. So that means more people in detention, more people deported. So there's there, there needs to be more of those empirical studies, but those do exist. there's lots of interesting literature on the commingling of the different functions between prosecution and judging in the immigration court system. the reason why the immigration courts are in the

03:32 - Department of Justice comes from a move in 1940 where they moved out of the Department of Later Labor into the Department of Justice, basically in a time of fear related to World War ii. And then not long after that, we have the Administrative Procedure Act passed. That's a 1946 law where the, the attempt was to tame this giant administrative bureaucracy of government. And there was a consensus, which was, rather than taking these decisions into the federal courts,

04:05 - we would bring the norms of federal courts into the administrative agencies. And the Administrative Procedure Act then requires the prosecutor to be separate from the judge. And in 1950, the Supreme Court held that deportation proceedings were not in compliance with that. They had a one-man hearing that was the same person acting as prosecutor and judge. Now, Congress responded to that decision by take,

04:31 - taking immigration proceedings out of the Administrative Procedure Act. But then there were these slight changes that made the, the, adjudicators ever so separate from the prosecutors, you know, establishing their own agency, the judges started to wear robes. They started to call themselves immigration judges instead of titles like Special Inquiry Officers. they had separate files so the judges couldn't be, biased by what was in the prosecutor's file.

05:03 - and, but but always they've been under the thumb of the Attorney General and under the direction of the Attorney General. Now, what's very interesting is, there's an article called War on Independence. Steve Gonski wrote it, and he describes it in the post nine 11 era. We saw a war on the adjudicator's independence. And a big part of this was that the Board

05:26 - of Immigration Appeals members who granted cases most frequently, they got demoted, they lost their jobs and no longer were adjudicating cases. So they got taken out of the positions of deciding cases, sending a message to every other adjudicator that you, you rule against the government at your own peril. there were political hirings of immigration judges. These got exposed in a congressional hearing, congressional hearings in 2008 that was based on their Republican party affiliations.

05:58 - there started to be case completion goals, and then performance evaluations. So the Trump administration required every judge to complete 700 cases a year. there were new procedural rules that allowed board members to just rubber stamp immigration judges without a deliberative well thought out, written opinion. And then, the docket management tools were taken away like continuances were no longer allowed administrative

06:27 - closure that would allow people time to let their applications for say, a green card play out before the immigration agency and they wouldn't get deported in the interim. Those went away as well during the Trump administration. So we just see this war on Independence and the Department of Justice has the authority to do all of this. and, in the literature on immigration detention, what we see is a lot of scholarship advocating

06:53 - for more robust procedural protections in detention decisions like court appointed counsel, a government born burden of proof instead of the detainee bearing the burden of proof, a requirement that the immigration judges consider alternatives dete detention like GPS monitoring or community supervision, a requirement that the judge consider a detainees ability to pay before setting a bond, and prompt probable cause hearings

07:20 - before somebody continues detention. and then scholars have also critiqued our entire immigration detention system as not civil but punishment. There's a leading article by Cesar Garcia Hernandez on this prove or basically arguing that immigration detention itself is punishment during the Trump years. It was interesting because, the, the profession of retired immigration judge became incredibly popular.

07:47 - Immigration judges themselves felt that they were pawns of the deportation machine, and they were being told how fast to decide their cases. They were being told to not give the non-citizens any time to actually get status before they came back and had to be deported. They were being even told, there was a gag rule where judges couldn't even speak out about what was wrong with the system or critique the system or really say anything publicly.

08:14 - so tho those were just, I, I mean, I already talked about the firings and the, the di demoting, the board members who had granted the most cases. but basically all of this sent a message to the judges. You rule against the government at your own professional peril. If you wanna keep your job, which is a good government job that pays well, you better get in line. so some specific examples of immigration judges, lack

08:36 - of independence and detention decisions. The first one that I talk about in the article is the automatic stay. This is a regulation that started in 1998. It was broadened in 2001. And this allows an ice prosecutor to override an immigration judge's bond release order. So what that means is if somebody fights hard, wins a bond, the judge says, you can now get released upon the payment of this much money.

09:03 - They have the order in hand, and that order gets canceled by the filing of a piece of paper by the prosecutor, and then the person will remain in custody for the duration of that appeal. The appeal gets expedited, but it really doesn't matter because the prosecutor basically can undo the immigration judge's order. Another example is ICE's rearrest authority. If somebody has been released, for example,

09:28 - by an immigration judge on a bond, ice can take them back into custody without having to prove anything to anyone. So they don't have to get, they don't have to prove probable cause or there's something new, or there's a material change in circumstances that allows them to take the person back into custody. Ice claims. They make those their own determinations of that, but they don't have to prove it to any immigration judge, any other judge.

09:52 - and that is quite different if the detainee loses bond because they have the obligation of proving a material change in circumstances in writing. And that's a pretty hefty thing they have to show to get the judge to reconsider her prior bond denial. Whereas if the judge has previously granted bond, the ice prosecutor can just take someone back into custody and that then they're in custody for a decent amount of time until they have a new bond hearing where they bear the burden of proof.

10:23 - the, the detainee bears the burden of proof. the third example is attorney general decisions that have made, blanket categorizations about how immigration judges have to conduct their bond hearings. just as a side note, the Attorney General can overrule an immigration judge and the Board of Immigration appeals through a regulation that allows a case to certify to the, the Attorney General. So what that means is that the nation's top prosecutor gets converted

10:53 - to the nation's top adjudicator for immigration cases. So a political appointee now becomes the person who decides the case, even though we think of the, adjudicators as independent. and, and a former Attorney general, from the, the, the second Bush A the Bush two administration defended this in a law review article by saying that the Attorney General is basically the boss and the supervisor of his employee, which is the Board of Immigration Appeals.

11:23 - so the, certainly the Attorney General sees the board as their employees. and so what the Attorney General then can do is set forth, this is the new way you have to decide bond cases. I don't care if you think he wasn't a danger of flight risk. Now, you have to decide, general deterrence to future border crossers. That was one of the attorney general decisions that now judges have to factor in deterrence to future border crossers in their, in their bond decisions.

11:52 - attorney generals have also said there's just simply no jurisdiction. Judges just can't decide certain bond hearings, certain types of bond hearings. And the Attorney general has set forth new rules about asylum eligibility, basically, setting forth that certain categories of asylum seekers just don't have good claims anymore. And that then means that, the case law would suggest they're less likely to win.

12:17 - So that means they're more likely to flee and they should lose their bond. So those are just three concrete examples of the way that immigration judges independence has been undermined in detention decisions. Start with the modern era, and I basically start with the Refugee Act of 1980. This is of course, the, Congress putting into law our international obligations under the refugee convention.

12:42 - Jonathan Simon has an article where he discusses that right after the passage of the Refugee Act in 1980, what we saw was lots and lots of new illegal entrants who had a right to stay while their asylum claims were processed. And the problem he describes is that many of these new refugees racially non-white, so from the Caribbean, you know, for example, large numbers from Haiti. And that created fear. And so with fear came a shift in the policy,

13:18 - whereas the Attorney General in 1954 had said, we presume we're release, we presume Liberty. We are closing the doors to Ellis Island and not presuming detention. That all changed after the passage of the 1980 Refugee Act, and then the presumption became detention. And so, a class of detainees sued. they claimed that the new parole policy discriminated against them on the basis of race and national origin. They were Haitian,

13:47 - and that they, it also violated the proper administrative procedures. And so then the district court said it violated the proper procedures. You didn't adequately deliberate before you passed this. And the district court, the federal district court ordered the release of 1,700 of the class members. And that caused the government, the INS at the time, the immigration and naturalization service to promulgate new regulations, redo all

14:12 - of the custody determinations, the parole determinations is what they were called. And then they that put, the district court sort of supervising and overseeing the custody determinations and many people were released on that, and that that case made its way up to the 19 up to the Supreme Court as well. but it's an example of one place where there's a drastic change in detention policy by the political actors

14:35 - and the federal court intervenes to ensure that the changes put in place actually followed the appropriate procedures and the, the appropriate deliberation, and then oversaw the detention decisions made by the enforcement agency. And so then I discussed the detention, the litigation following the 1996 detention laws, which also drastically changed immigration detention. so the Supreme Court in 2001, just months

15:02 - before nine 11, held that indefinite detention of somebody who couldn't be deported because they were stateless, raised serious constitutional concerns. And the court decided that detention became presumptively unreasonable after six months following a final order of removal. So at that point, it became the government who had to bear the burden of showing they could deport somebody otherwise people would be released.

15:28 - and this was really the high watermark of the, Supreme Court lit, doctrine on immigration detention. I think because then post nine 11, we have the Supreme Court in 2003 upholding mandatory detention while people are fighting their proceedings on under the due process clause. But that was because the Supreme Court had had faulty statistics presented to it by the government that suggested cases were concluded in two to four months.

15:57 - and what happened was that when all the lower courts realized that cases were not concluded in two to four months, people were spending years in prolonged mandatory detention without a bond hearing. That's when the lower courts intervened again, and for whole classes of detainees, they suddenly now had bond hearings. The lower courts also then in the context of that litigation and in other litigation, decided

16:22 - that there should be more procedural protections, procedural protections that mirror what happen in criminal pretrial detention, such as the government should bear the burden of proof. the judge should have to consider alternatives to detention and the detainees ability to pay. so what we saw was whole classes of detainees getting new procedural protections, and then the COVID-19 pandemic, I mean, there ice really dug in its heels

16:49 - and insisted on detention even though it was so unsafe to detain people in the conditions where they were detained. So we have the federal courts intervening in saying that ICE has to conduct new custody determinations for all immigration detainees with risk factors. We also have the federal courts conducting their own bail hearings. They were using this little known doctrine that allows Article three courts to intervene and release a deta on bail

17:19 - if there are extraordinary circumstances and if bail is necessary to basically vindicate the right that somebody is seeking through their claim. so all of these are just federal courts looking at the old map, which is the presumption of freedom. And that, of course, is in conflict with this idea that the political branches have total utterly and plenary control over immigration. but the political, the, the plenary power would suggest federal judges stay

17:48 - out of all these decisions. And that is not what I've seen. so immigration judges and contracts, they, they don't have that map of the presumption of freedom. The constitution, they are not interpreting the constitution. They are interpreting what enforcement actors have told them. And, they are actually conditioned to place the burden

18:08 - of proof on the applicant on the non-citizen in all of their cases. It's never on the government or rarely on the government. so I certainly don't suggest that all federal courts, and certainly not the Supreme Court, has always pro protected the presumption of freedom. But there are plenty of courts that have, and those decisions that encouraged me to think about what it would look like for the federal courts, really to be deciding somebody's freedom

18:32 - in the context of immigration. My proposal is really to, bring every single immigration detainee before a federal district court to review the detention decision, not the whole deportation case, but to to decide whether somebody should be released while their deportation case is going on, and that the federal courts should use the procedures that are already in place under the Bail Reform Act,

18:55 - which governs pretrial detention, hearings for those who are charged with federal crimes. I defend this by citing to all the scholarship that describes immigration detention as punishment. So I argue that if detention is punishment, then let's have an independent court decide whether detention is necessary. I also argue that the way we've gone about this, which is basically importing piecemeal the procedural protections from the criminal pretrial detention system into

19:25 - the immigration bond hearings doesn't make any sense, or it, it sort of makes sense, but it, it's so much easier to just take the whole detention decision with and, and put it with the Article three court, with all of the wraparound procedural protections that already exists as opposed to telling the immigration judges they have to apply certain procedural protections. this leaves immigration to judges really deciding the issues

19:52 - that are much more in their wheelhouse, which is, whether somebody applies, you know, has a good application for relief from removal such as asylum, whether someone is actually deportable under the Immigration and Nationality Act. whereas these detention decisions, which are about dangerousness and flight risk can easily be decided by an article, article three court. and then it also takes the article three courts out

20:14 - of this supervisory role to the immigration judges right now, legal issues can be challenged. So let's say there's a procedural defect in a bond hearing that can be challenged through a habeas corpus petition in federal court. But the problem with that is then if the federal court agrees there was a procedural violation, they have to send it back for a due over with the immigration judge. So it's a very inefficient, roundabout way

20:39 - to get at the right procedures. and then also, the detainees, many of them don't even, can't even bring habeas petitions 'cause they don't have a right to court appointed counsel in the deportation case. So if they have the resources to fight their case, they're gonna spend those resources on the deportation case, probably not the detention case. In fact, it, it almost doesn't make sense to fight the habeas with the scarce resources one has

21:07 - because the habeas case often becomes moot prior because it, it, if it takes too long to decide, the deportation case resolves the matter and then it's over and the detention is no longer a live issue. so for all those reasons, it just doesn't make sense for the federal court to be doing this constant loop in feedback and receivership of the immigration judges' bond decisions. I would say a big takeaway is that it doesn't matter that our system calls the person a judge,

21:36 - in the immigration system, if that person works for the nation's top prosecutor, that is simply not compatible with entrusting this person with the important right to liberty. And I wanna be really clear here that I am not critiquing any one immigration judge. I think that there are plenty of immigration judges who are capable of caring about a detainees liberty and I have seen judges make very good deliberative decisions in a bond hearing.

22:05 - But a judge that works in a system that tells her to presume detention and to work fast and that she risks her job if she rules against the government just doesn't, is inconsistent with this idea of preserving the right to liberty. And when we work fast, we all know that our racial biases make the sorting that we have to do a lot, that the racial biases go to work. And the majority of detainees are men of color. They're wearing orange jumpsuits, they're appearing from

22:35 - behind a video screen, orange shackles. So it's really hard, it would be a psychological uphill battle for a judge to say this person is not a danger when the law actually starts from a presumption of dangerousness and a presumption of detention. And the evidence that gets presented can have multiple levels of hearsay, such as police reports, gang accusations. So it is a perfect implicit bias recipe.

23:02 - The judge has to act vast, the evidence is shaky and, all the presumptions lead to detention. So I think that that is the problem here, not any one individual judge. so I would encourage future research on how to make this thought project more feasible. I know in other writings, I myself have advocated for Article three Judge, review of the initial decision to detain. I've also advocated for state court criminal judges

23:28 - to make a recommendation to ICE against detention. I hope that there will be more empirical research that further demonstrates the immigration judge's lack of independence because this is something that a lot of people talk about, but I think their arguments can be bolstered even More by the empirical evidence. and then finally, I hope that the Immigration Adjudication Agency itself, the Executive Office for Immigration Review,

23:53 - will take these ideas under careful consideration as a me a mechanism, if nothing else, to control their judge's dockets. ultimately I hope that all immigration enforcement officers, political appointees and legislators stop presuming that detention is a necessary component of our deportation system.

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