Opinion: The origin of U.S. immigration courts is stunning. They need to be overhauled
One morning two years ago, I was at the Montana Avenue Border Patrol station and Immigration and Customs Enforcement detention complex, in the courtroom of Immigration Judge William Abbott. He reviews evidence there from immigrants attempting to gain asylum in the U.S., and rules on their claims, deciding whom to accept and whom to deport. As I sat quietly watching and listening to Abbott work, the last thing on my mind was Adolph Hitler’s minister of Nazi propaganda, Josef Goebbels.
Abbott is not a fascist. Not by any means. He is, however, notorious among some immigration attorneys who’ve argued cases in his court. (That’s why I was there in the first place: to check his reputation first hand — though I’d ended up realizing I probably wouldn’t learn much, since I’d had to be announced by a guard as a reporter before I could put a foot into Abbott’s court.)
The year I visited, the judge was the subject of several complaints about misconduct, including for maintaining irregular courtroom procedures, and for allegedly saying deprecatory things to asylum seekers. The American Immigration Lawyers Association had publicized several of the complaints, after sending them to the Department of Justice. They were made by immigration lawyers who represented clients in Abbott’s court.
Several complaints noted that the judge prohibited attorneys from filing more than 100 pages of evidence supporting their clients’ asylum petitions — even though it’s not uncommon for over 1,000 pages to be filed in other courts. Another complaint alleged that, during one hearing, Abbott had laughingly called a mentally ill asylum seeker “crazy.’’
Most of the attorneys complained anonymously. They said they were afraid that the judges would retaliate against clients if the lawyers revealed their names. But some years earlier, another complaint against Abbott had been verified in a higher court, the Board of Immigration Appeals (BIA), where the reviewers did make their names public. In that case, from 2009, the asylum seeker’s lawyer, El Pasoan Eduardo Beckett, had appealed Abbott’s deportation order to the BIA.
After examining the appeal, the board had ruled that Abbott “hijacked” the hearing, acted unfairly toward the immigrant and violated his due process rights. The BIA overturned Abbott’s deportation decision and ordered the case sent to another judge. Abbott also received a written reprimand for, among other things, making irrelevant, even bizarre comments during the hearing. (For instance, he expostulated, incorrectly, that a person could not be Jewish unless their mother were Jewish. He talked aimlessly about the different types of cattle breeds and methods for cooking beef, all in a hearing having nothing to do with these topics.) According to attorney Beckett, the judge who later re-heard the case, in a court in Denver, granted asylum.
(I asked the Executive Office for Immigration Review, EOIR, for permission to speak with Abbott about the appellate ruling, reprimand, and complaints against him. EOIR is the office in charge of immigration courts. An EOIR spokesperson answered that “immigration judges do not give interviews.”)
Abbott is not an outlier in El Paso. Similar complaints dog other local immigration judges. In addition, judges in the El Paso region are infamous for how rarely they grant asylum to applicants. For several years the national average grant rate has hovered at about 50 percent. In El Paso, as of the last study that was done, in 2017, the average was less than 5 percent. Very low El Paso rates hold even for people who have lawyers, and regardless of which country they come from. The El Paso rates are so low that in 2019, when AILA filed its complaints with the Justice Department, the organization charged that El Paso immigration judges were displaying such a “culture of hostility” toward asylum seekers that they called their courts “the bye-bye place.”
Still, it would be ludicrous to equate El Paso’s immigration court system with 1930s Germany and Nazi propaganda. So what’s the connection?
That question is answered in a groundbreaking new book, “The Accidental History of the U.S. Immigration Courts: War, Fear, and the Roots of Dysfunction.” Author Alison Peck, a law professor, has delved deeply into a forgotten period of U.S. and world history.
Her work reveals the origins of a strange and troubling fact: Our country’s immigration courts are not really courts. Nor are the judges really judges, as that term is understood in this country. Sure, they wear black robes and work in places that look like courtrooms. But they are not part of the American independent judiciary, a third branch of our hallowed, tripartite separation of government powers.
Instead, immigration courts are housed in the Department of Justice, which is part of the executive branch. In other words, immigration courts are run by the attorney general, who in turn is picked (and can be summarily fired) by the chief of the executive branch, the president. This means that immigration judges work for — and can be fired by — the DOJ, the federal agency that prosecutes criminals.
But, as Peck points out, violations of immigration law are not crimes. Instead, they are infractions of administrative law. Thus, for immigration law violators–or people seeking asylum, which is not a violation–to be judged by people hired, paid and directed by an agency that investigates and prosecutes criminals, is tantamount to citizens charged with actual crimes being tried before judges hired, paid, and directed by the district attorney.
In immigration cases, if the attorney general disagrees with an immigration judge’s verdict, the AG can cancel the verdict and make his or her own ruling. For comparison, imagine a trial in criminal court where a defendant was acquitted but the DA disagreed with the jury, threw out the acquittal, and issued a guilty verdict.
In fact, former President Trump’s attorneys general canceled and re-decided immigration judges’ decisions several times, to the detriment of immigrants and apparently as part of Trump’s attack on asylum. Such cancellations and alternate rulings had been far more rare in previous administrations. Immigration attorneys and civil rights advocates were shocked and outraged. They started exploring why immigration courts were housed inside the DOJ in the first place. Peck took her own look.
And that’s where she found Josef Goebbels.
The federal government’s immigration control and enforcement apparatus for many years was housed in the Department of Labor. That made sense: historically, immigrants were seen as coming to the U.S. mainly to work, and the Labor Department was tasked with making sure that newcomers were helping the economy and not hurting it.
But as World War II loomed in the late 1930s, Hitler’s propagandist Goebbels engaged in a hoax to spread panic through Europe, England and the United States. The goal was to foment demoralization in Allied countries and cause them to waste defense resources.
Goebbels had a Machiavellian talent for orchestrating disinformation to advance Hitler’s interests. He began encouraging rumors about secret invasions into Allied countries by “Fifth Columns” of German spies and saboteurs. The Fifth Column Germans were rumored to dress and speak just like ordinary people, blending in with the citizenry but quietly plotting to destroy national infrastructure and wreak other havoc.
Quoting a historian of World War II, Peck notes that “Goebbels had only to plant the seed ‘and the Allies themselves did the rest. The genius of the scam was it made everyone suspicious.’”
As the Fifth Column rumor spread in America, Germans immigrants and other non-citizens became suspect. Some politicians thought that for national security purposes, foreigners needed to be investigated and rounded up by the Department of Justice. So, in 1940, with very little public discussion, President Franklin Roosevelt moved Immigration out of the Labor Department and into the DOJ.
The war ended, the Fifth Column rumors were exposed as baseless, and most people forgot about them. They also forgot why the Immigration and Naturalization Service, INS (now ICE) — including the agency’s deportation courts and deportation lawyers — were housed in the DOJ.
Since 2002, ICE and the lawyers have moved over to the Department of Homeland Security. But they still prosecute immigrants in the courts, which have remained in the DOJ. The arrangement leads to stupendous inefficiency, Peck writes. It also fosters the implication that immigrants are criminals. And it perpetuates a deeply flawed court system that is hard to square with notions of due process.
Lately, calls have been multiplying to get immigration courts out of the DOJ and turn them into “Article I” courts. The demand is nothing new: even the labor union of immigration judges has been calling for such courts for the past 24 years. The proposed courts are named after Article I of the Constitution, which empowers Congress to create and oversee some courts. Current examples are the United States Tax Court, United States Court of Appeals for Veterans Claims, and the United States Court of Appeals for the Armed Forces.
Article I courts for immigration matters would not be part of the Judiciary. But they would be independent of the DOJ, and the judges would be appointed by the Senate, not the executive branch via the attorney general. Peck recommends that judges serve for 15 years, instead of being churned by twists and turns in immigration politics.
Board of Immmigration Appeals judges would be appointed by the independent judiciary, on a rolling basis. This likely would avoid or at least mitigate the kind of politicking that happened just before Trump left office, when the attorney general packed the board with dozens of former immigration trial judges who had some of the highest asylum refusal rates in the country.
Then, after Biden assumed the presidency, instead of starting over with new candidates, his attorney general, Merrick Garland, seated the Trump appointees. (One of them, Sunita Mahtabfar, was ranked in 2020 by a national tracking agency as one of the eight worst judges in the country for ordering deportations, among a total of 456 judges. Mahtabfar developed this reputation while working as a trial judge in El Paso.)
Senate appointments could also promote needed diversity in the demographics and work experience of the trial judges. A 2007 study of hundreds of thousands of immigration court adjudications over several years found major discrepancies in asylum grant rates among judges nationally, based on their professional background and gender.
Male judges, for instance, who used to work as prosecuting attorneys for ICE granted in only about a third of their cases. But women judges with experience advocating for immigrants at non-profit organizations granted in almost two-thirds of cases.
Every one of El Paso’s seven judges spent years as a prosecutor for the government, most for ICE or other sectors of the Department of Homeland Security (DHS). According to their official court biographies, none has ever done work representing immigrants.
“The judges here consider themselves to be gatekeepers,” said Beckett, the attorney who filed the successful appeal against Judge Abbott. “They suspect all asylum seekers are lying. They’re here to deny, to deport, to send a message on the border.”
HR 1177, the immigration reform bill introduced earlier this year in the House, calls for increasing diversity among the judges. But it does not specifically propose Article I courts — though the so-called “Biden-Sanders Unity Task Force on Immigration,” which Biden promoted during his campaign, recommended making the immigration courts independent.
El Paso Congresswoman Veronica Escobar’s husband, Michael Pleters, is an immigration judge with a long background as an ICE/DHS prosecutor. He applied for the judgeship during the Obama administration and was appointed in 2017, during the Trump administration. His asylum denial rate has been higher than that of immigration judges’ average nationally. By phone recently, Escobar acknowledged the problem of lack of diversity among judges. She also spoke passionately about the need for Article I courts as part of “reforming the adjudication process” in a larger immigration system that she called “broken.”
Escobar herself was a member of the Biden-Sanders Unity Task Force on Immigration. She recalled that the group spent significant time discussing Article I courts and “settled on a study” to look into their implementation. Since Biden took office, she said, Congresswoman Zoe Lofgren (D-Calif.), chair of the House Judiciary Committee Subcommittee on Immigration and Citizenship, has been drafting immigration reform legislation to reconcile the House bill with a Senate bill. Escobar said she recently checked with Lofgren’s office to see if Article I language is included. She was told Lofgren has not finished the draft.
She said she’d never heard about Nazi panic mongering as explanation for how immigration adjudicators left the Labor Department 81 years ago and ended up ever since in the DOJ. “Wow, that’s incredible,” she said.
If the judges ever get out of the DOJ, that may be equally incredible.
Cover photo: People in Migrant Protection Protocols were brought into El Paso immigration court on March 16, 2020. It was the last day MPP hearings were conducted in El Paso because of the pandemic. (Robert Moore/El Paso Matters)