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When immigration judges get political, justice suffers. By Nolan Rappaport

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© Getty

"Refugee Roulette"

President Barack Obama’s immigration policies had the unintended consequence of encouraging illegal immigration. By focusing enforcement efforts primarily on aliens who had been convicted of serious crimes or who had been caught near the border after making an illegal entry, he created what I call a “home free magnet.”

Aliens wanting to enter the United States illegally knew that they would be safe from deportation once they had reached the interior of the country unless they were convicted of a serious crime. This was a powerful incentive to do whatever was necessary to enter the United States.

President Donald Trump destroyed this magnet with tough campaign rhetoric and his executive order, Enhancing Public Safety in the Interior of the United States, which greatly expanded enforcement priorities. No deportable alien is safe under Trump’s enforcement policies.

But previous administrations have left Trump with another enforcement problem that he has not resolved yet.

The immigration judges who decide whether an alien in removal proceedings will be deported have been selected by successive administrations with varying views on immigration enforcement, which has produced an immigration court of 350 judges who have conflicting views on how immigration law should be applied.
According to a Reuters analysis of thousands of immigration court decisions, whether an alien in removal proceedings is allowed to remain or is deported depends largely on which immigration judge hears his case and where the hearing is held.

Read more at http://thehill.com/opinion/immigrati...ustice-suffers

Published originally on The Hill.

About the author. Nolan Rappaport was detailed to the House Judiciary Committee as an executive branch immigration law expert for three years; he subsequently served as an immigration counsel for the Subcommittee on Immigration, Border Security and Claims for four years. Prior to working on the Judiciary Committee, he wrote decisions for the Board of Immigration Appeals for 20 years.





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Comments

  1. ImmigrationLawBlogs's Avatar
    I can attest to the accuracy of Nolan's observations about differences in Immigration Judges' attitudes from my own (infrequent) appearances as a lawyer in immigration court many years ago. One IJ was unable to stop himself from shouting and screaming at deportation respondents - until his career was interrupted by a stroke.

    Another IJ was so pro-immigrant that he seemed to operate on the theory that if a respondent could not come up with any legal defense to deportation, it could only be because the attorney representing him or her must have been incompetent.

    It was hard to tell which of these two judges was more frustrating for a lawyer to appear in front of.

    Would Nolan support the idea of removing the Immigration Court system from the jurisdiction of the DOJ and making it independent, as some immigration advocates have urged?

    Roger Algase
    Attorney at Law
    Updated 04-26-2018 at 01:35 PM by ImmigrationLawBlogs
  2. ImmigrationLawBlogs's Avatar
    Quote Originally Posted by ImmigrationLawBlogs
    I can attest to the accuracy of Nolan's observations about differences in Immigration Judges' attitudes from my own (infrequent) appearances as a lawyer in immigration court many years ago. One IJ was unable to stop himself from shouting and screaming at deportation respondents - until his career was interrupted by a stroke.

    Another IJ was so pro-immigrant that he seemed to operate on the theory that if a respondent could not come up with any legal defense to deportation, it could only be because the attorney representing him or her must have been incompetent.

    It was hard to tell which of these two judges was more frustrating for a lawyer to appear in front of.

    Would Nolan support the idea of removing the Immigration Court system from the jurisdiction of the DOJ and making it independent, as some immigration advocates have urged?

    Roger Algase
    Attorney at Law
    They should have started with an Article 1 court. But I don't think it is a good idea to create one now with so many biased immigration judges, some number of whom didn't have enough immigration law experience to do the job when they were appointed.

    I don't think lawyers with little or no experience or knowledge of immigration law can learn the law in the stressful, unsupervised setting of a courtroom in which they are making an unending stream of decisions on technical subjects they know little about.

    I base that opinion on 20 plus years of experience reading hearing transcripts and reviewing the decisions of the judges when I was a decision writer at the Board of Immigration Appeals.

    Being an immigration judge is a very hard job. I have great respect for the ones who are doing it well, and I believe that most of them are.

    Nolan Rappaport
    Updated 04-26-2018 at 02:06 PM by ImmigrationLawBlogs
  3. ImmigrationLawBlogs's Avatar
    In addition to reforming the way Immigration Judges are picked, reforms in access to legal representation by deportation respondents is also urgent. Both the Obama and Trump administrations have tried to limit access to counsel by people in deportation proceedings, but it is encouraging to note that AG Sessions has reversed his previous decision to terminate the Vera legal assistance program for detained immigrants. This is a step in the right direction.

    However, because of the drastic consequences of deportation, it should be treated as a quasi-criminal proceeding, with full access to representation by counsel and the full range of criminal court protections.

    Moreover, as of May 5, Trump appears to be going in a completely opposite direction. The Daily Mail reports that on that date, he threatened to "close up our country" against immigrants entirely, and complained that the US has "thousands" of immigration judges. He then asked:

    "Do you think other countries have judges?"

    http://www.dailymail.co.uk/wires/ap/...mmigrants.html

    Even assuming that Trump was only referring to immigration judges, the suggestion that these judges should be eliminated has alarmingly serious implications for the future of democracy in Donald Trump's America.

    Roger Algase
    Attorney at Law
    Updated 05-05-2018 at 05:41 PM by ImmigrationLawBlogs
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