Shield for Immigration Court

When, say, a mother and her children flee to the United States after escaping from a dictator slaughtering people for worshipping the wrong god, one of 220 federal immigration judges decides whether to let them stay or make them go. These same judges decide the fates of foreign students who overstay their visas and immigrants charged with minor crimes. Now, because of Atty. Gen. John Ashcroft’s heavy-handed crackdown on immigrants after Sept. 11, which includes new limits on judicial discretion, these judges themselves are seeking a sort of asylum.

The National Assn. of Immigration Judges, an AFL-CIO-affiliated union, is asking that its members be removed from Justice Department control and perhaps constitute themselves as a new, separate federal court. The judges say that the Immigration and Naturalization Service, which argues the government’s cases before them, unduly influences the Justice Department’s policies and practices, an influence that frequently spills over to judicial matters. The particulars they cite include Ashcroft’s directives that let the INS override immigration judges’ decisions to release Sept. 11 detainees on bond and that order judges to close their courtrooms to the public in every case involving those detainees.

The judges are particularly concerned that their current organizational arrangement undermines the essential fairness of the immigration proceedings they conduct, that such core American values as judicial independence and impartiality have been compromised. And because immigration judges serve at the pleasure of the attorney general, with no Civil Service job tenure, they feel vulnerable to intimidation and interference from within the agency.

Until 1983, these judges worked directly for the Immigration and Naturalization Service, but this arrangement proved rife with conflict since INS lawyers argue the government’s cases before them. As a result, Congress created the Executive Office for Immigration Review, an arm of the Justice Department. Now it’s time to change again.

The Social Security judges who settle benefits disputes and bankruptcy judges who sort out what’s owed to creditors operate with far more independence than immigration judges. Since the 1940s, many administrative judges have been protected by Civil Service and procedural rules that help ensure that their decisions are governed by the merits of the cases, not political or bureaucratic pressures. Immigration judges have every right--and good reason--to demand the same protections.