The immigration courts were completely upended by the Trump administration, but what awaits them under this new administration? This was the topic for Documented’s sixth panel on immigration issues.
The panel for this discussion included Immigration Judge Amiena Khan, current President of the National Association of Immigration Judges, and Julia Preston, Contributing Writer at The Marshall Project.
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The previous administration took a series of decisions that restricted the flexibility of immigration judges, one of them including the now reversed Matter of Castro-Tum, which ruled that immigration judges and the Board [BIA] do not have the general authority to suspend indefinitely immigration proceedings by administrative closure, and also the implementation of numeric quotas and performance metrics. “We all recognize the abuses of the prior Trump administration to effectively speed up the workforce… to create a sort of an assembly line processing of our cases, rather than to enhance efficiency and removal orders,” Judge Khan said, mentioning that performance quotas should be abolished.
The effects of the decisions of the Trump administration were further exacerbated by the start of the global COVID-19 pandemic, which created a health crisis that required guidelines to be put in place to ensure the health and safety of immigration judges, staff and all court participants. As immigration courts resumed operations on July 6th, they were dealing with an estimated backlog of upwards of 1.3 millions cases.
Judge Khan said that immigration judges in New York are scheduled out until December 2023, and that the agency has put a cap on their ability to schedule hearings beyond that date. However, Judge Khan also mentioned that there are courts across the nation scheduled with later dates— at an immigration court in New Orleans, for example, cases are scheduled out to 2025.
As hearings get delayed, the Judge noted that evidence could become stale, and that witnesses— who can be crucial for an individual’s case — could get become unreachable or unavailable. “And so we look at multiple factors when we are choosing to go forward. And we implore the agency to allow immigration judges to control and manage our own dockets for efficiency and effectiveness. And when we are allowed to do so the cases that we scheduled before us go forward,” Judge Khan said.
Preston said the Biden administration and Attorney General Merrick Garland have also reversed two of the previous administration’s major ruling decisions that involve asylum seekers who sought asylum on the basis of a sexual or domestic violence claim or a claim associated with a close family member. One of the decisions reversed was also the Matter of Cruz Valdez, which allowed for the restoration of the use of a valuable docket management tool by immigration judges.
“[The attorney general] acknowledged the importance of decisional independence of immigration judges, by recognizing that administrative closure when appropriate is within the authority of immigration judges has set the course for us to more effectively and efficiently address the enormous backlog faced by the immigration courts,” Judge Khan said.
While the gold standard for immigration courts is to have in-person hearings, the implementation of remote hearings can be beneficial so that individuals can continue to have their cases heard. Judge Khan highlighted that the objective of the immigration courts and judges is to ensure that a fair hearing is provided and that the due process rights of individuals are protected. With the right resources and the proper technology, the use of remote hearing can be a benefit if an emergency situation like the COVID-19 pandemic arises.
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