New regulations that give immigration judges the authority to hold in contempt and punish only one of the two parties before them – that is, the nonimmigrants’ lawyers – form part of a larger pattern: our immigration judges have become prosecutors in robes.
While maintaining the pretense of judicial independence, the Executive Office for Immigration Review (EOIR) swung open its doors to the Department of Homeland Security (DHS) enforcers, who prowled the corridors of the nations courts, intent on depriving noncitizens of their liberty and their day in court, until a judge enjoined the practice as “arbitrary, capricious, and contrary to law in violation of the Administrative Procedure Act (APA).”
Immigration judges’ “independence” is now cabined by 320 precedent decisions rushed to release under the Trump administration: all but one of these dictate when judges must deny the so-called “alien” asylum, withholding of removal, cancellation of removal, adjustment of status, continuances, administrative closure, and the termination of removal proceedings. A striking pattern in these decisions is the fiction that DHS – one of the two parties who appear before these judges – is not responsible for the delay in adjudicating “collateral” applications for relief, such as family- and employment-based visa petitions. When the Board intones, for instance, that “[a]dministrative closure… is not intended to be used to delay proceedings indefinitely,” and “the average processing time for [such-and-such] an application is approximately 28 months,” it overlooks the fact that USCIS is a division of DHS. In effect, the Board is commanding judges to punish one party (the noncitizen) for the other party’s foot-dragging.
EOIR’s motto, “Qui Pro Domina Justitia Sequitur” – roughly, “who prosecutes on behalf of justice” – befits courtrooms staffed with two prosecutors and no judge.
