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Trump Is Politicizing the Power of Immigration Judges

August 27, 2019

Trump's administration is trying to decertify the immigration judge's union, speed up trials, and make it easy to overturn their decisions. TRNN discusses the memo quoting a white supremacist website that was sent to immigration judges

Trump's administration is trying to decertify the immigration judge's union, speed up trials, and make it easy to overturn their decisions. TRNN discusses the memo quoting a white supremacist website that was sent to immigration judges


Trump Is Politicizing the Power of Immigration Judges

Story Transcript

MARC STEINER: Welcome to The Real News Network. I’m Marc Steiner. Good to have you all with us.

It appears that the Trump administration wants to diminish the power of immigration judges so that they become more part and integral to the administration’s immigration policies, to politicize that court system. In the last month, the Trump administration has moved to decertify the union that represents the judges, adding procedures that fundamentally dismantles the power of judges, allowing the agency’s director to deliver appellate decisions to override a judge’s ruling.

On top of all that, on August 19th, the daily memo sent out by the Executive Office of Immigration Review quoted a white nationalist website, VDARE, with an antisemitic diatribe, labeling the judges kritarchs, which is a reference to an ancient Hebrew judge system that took place and often used in this case as an antisemitic slur. Immigration judges are facing a difficult perfect storm where the anti-union sentiments of this administration are blended with a strident immigration policy of sending everyone back—“Quick, don’t need no trials,” somebody said to me from the administration recently— and questions about the white nationalist power inside the executive branch. At least, their presence in the mindset of some people.

We are joined now by Judge Dana Leigh Marks who is President Emeritus of the National Association of Immigration Judges and they’re speaking to us in that capacity. That is a union that is under attack. And Judge Marks, welcome. Good to have you with us.

DANA LEIGH MARKS: Thank you so much for having me, Marc.

MARC STEINER: I know you have a tight schedule because you have a court to take care of, but let’s start here. So let’s talk about the origins of this conflict between the Trump administration back when Sessions was the Attorney General. In that process, just give us a sense of who you are as immigration judges in our country.

DANA LEIGH MARKS: Right. A lot of people don’t understand that the immigration court is the trial-level court where individuals have an opportunity to answer to the charges brought against them as to whether they are in the United States legally or illegally, and even if they have violated some of the terms of their status, there may be a provision under the immigration law which allows them to remain in this country. The immigration judges are the judges that make those initial determinations. It is a true judicial system in what we do because the consequences to people who appear before us can be death penalty kinds of consequences if someone’s applying for asylum and gets sent back to an area where their life is in danger. Yet, as an administrative court, we have had to fight for years against the interference of political influences through the Department of Justice in order to assure that a political agenda does not become the basis for the actions that we take in our courts.

MARC STEINER: There’ve been arguments that you alluded to a little bit that some have made—“Well, they’re not really judges. I mean, they are administrative judges. They’re not independent part of the independent judiciary. They shouldn’t have a union. This is absurd and they’re actually just managing a system.” I know that from reading articles from the past, that your association has been fighting hard for a long time to separate out of DOJ so that you’re an independent system. Talk about that battle and how that fits into all this.

DANA LEIGH MARKS: Right. It’s particularly confusing even to lawyers because we are not traditional administrative law judges protected with the independence and protections that those judges have. We are technically attorney employees of the United States Department of Justice, which means if my supervisor doesn’t think I’m working fast enough or doesn’t like my decisions, they can fire me. They can discipline me and they can fire me.

Now, no judge should be subject to those kinds of evaluations. I should be rated on whether I am fair to the people that appear before me, whether I am prepared and have done my homework on cases, but not on whether I continue with case too many times because I think there are justifiable legal reasons for that to happen while my boss on the meantime is saying, “Oh, but we have these policies that say you need to do 700 cases a year, and you’re not willing to meet that metric if you continue so many cases.”

MARC STEINER: As some people have argued and the new president of union has argued, this politicizes your work. As opposed to making judicial decisions based on the facts of the case, you’re being pushed to rush them through to politicize your decisions.

DANA LEIGH MARKS: That’s exactly true and the structure that Congress set up is a structure where the political decisions for immigration should be made in Congress primarily, and the Attorney General has a very limited role in influencing that through precedent decisions. But instead, the current Department of Justice is meddling in a lot of day to day matters, which affect our ability to organize our docket, which actually ends up having a very deleterious effect and hurts many people. We believe it encroaches on our ability to assure the due process is served, and it places an undue pressure on judges to please their boss. The only way I can talk to you is because we have a union. Because otherwise, the Department of Justice would muzzle sitting immigration judges and only have their official spokesperson speak to the public and to the press. That’s the reason behind this move to decertify the union because it’s only with our union capacity that I’m able to speak to you today.

MARC STEINER: Let’s go to some of the heart of that. This is the president himself talking about how he looks at immigration and this directly affects the work you do daily.

PRESIDENT DONALD TRUMP: Birthright citizenship, where you have a baby on our land, you walk over the border, have a baby— congratulations, the baby is now a US citizen. We’re looking at it very, very seriously. It’s frankly ridiculous. I want people to know that if they come into the United States illegally, they’re getting out. They’re going to be brought out. This serves as a very good deterrent. When people see what they saw yesterday, and like they will see for a long time, they know that they’re not staying.

MARC STEINER: So that’s what I wanted to show just because that’s the politicization you’re being pushed to do by rushing your cases through, and just adding to the deportation rush without actually looking at case by case and seeing who these people are and why they’re here.

DANA LEIGH MARKS: Our organization is completely nonpolitical and we have in the past criticized Democratic administrations as well as Republican administrations when we felt that they were making decisions that are couched in administrative terms, but which in essence affect the nature of the law that we apply and the rights that people have when they appear before us. So this is a battle that has gone on for decades, literally, and it has become more intense again as immigration issues are more intense for the public.

But I go back to the point that it is Congress who made the law. And we believe that decertifying the union and the current new regulation to create for the very first time in our history, an office of policy within the court structure? That’s just plain wrong. That is mixing the executive branch functions and the law enforcement administration functions with the functions of a neutral immigration court.

When the Department of Homeland Security was created, Congress made a specific choice not to do that. They chose to leave the immigration judges in the Department of Justice. We had at that time argued that an Article I court, much like the tax court, should be created so that the enforcement officials are not meddling in court affairs. We were not able to achieve that politically at that time, but our skepticism about remaining in the Department of Justice has unfortunately proven correct, and action needs to be taken now.

MARC STEINER: And that goes to the heart of the last two points I want to make here before you have to run back to court. A, is what you’re alluding to here, which was this new directive that has come out of the DOJ, that literally takes the rulings out of your hands. You can make a ruling, but then the director can just say, “Okay, I overturn this. I’m acting as an appellate judge.” And whatever you do outside can become politicized by the people who were appointed by the president.

DANA LEIGH MARKS: You are absolutely correct that our current placement in the Department of Justice has at least given the appearance, if not the reality, of compromising the due process that we are required by law to provide to the individuals who appear before us, and judges shouldn’t have to worry about that. They shouldn’t have to worry about their job security if they make a decision in an individual case that is unpopular. If it’s correct under the law and if the judge makes a good faith effort to apply the law, it’s for the higher courts to decide that the judge was right or wrong. If he or she is wrong, we get reversed and the decision is overturned. This is a quintessential legal function that we are performing and we need to be allowed to do that, rather than have the distraction of being afraid for our job security.

MARC STEINER: So I want to go back to some things here that we haven’t touched on yet and I think are important before we have to leave. It has to do with an August 19th memo that was sent out that quoted VDARE, which is a virulently racist, pro-Nazi, antisemitic, anti-immigrant website. The response of Judge Ashley Tabaddor, who is the new President of the International Association of Immigrant Judges, a position you held, where she really took this on. So talk a bit about that. I mean, this was kind of stunning that this official daily memo quotes a white supremacist website.

DANA LEIGH MARKS: You are exactly correct that this was extremely offensive and inappropriate. Whether it was by mistake or by design, it should not have been allowed to occur, and that is the reason why our organization went on the record to tell the Department of Justice that we felt this was completely and utterly inappropriate and offensive. It was part of an article cited. We in the past received daily news clippings, a daily news digest. And this was a blog piece, not even news from a reputable press organization, and it was included.

MARC STEINER: I mean, and there’s been no official response to that either at this moment. Am I right about that or have I missed something?

DANA LEIGH MARKS: I’m sorry. You need to repeat it.

MARC STEINER: There’s been no official response from the DOJ at this point. Am I right about that, or am I wrong?

DANA LEIGH MARKS: The official response—Well, they haven’t bothered to respond to us directly, which is not uncommon. I’ve read in the newspapers, however, that the Department of Justice spokesperson said it was an oversight and blamed it on the contractor. I have also seen press coverage from Buzzfeed, I believe, which has said that after interviewing the CEO of the company to which the news clips service was contracted, he denied that and said there was very close oversight by the Executive Office for Immigration Review, our parent organization. So people will have to decide for themselves.

MARC STEINER: So finally here, there was a judge quoted in The New York Times who remained anonymous saying clearly they want to use judges who ramrod through cases and ramp up deportation regardless of any due process defects their policies have. He or she was not authorized to speak, so they did it with anonymity. Let’s talk about that in terms of what these new directives mean and what they could possibly mean, and how most of you are just really muzzled unless you’re talking through the union.

DANA LEIGH MARKS: Well, the difficulty is the messaging that’s coming through both in the kinds of decisions that the Attorney General has chosen to certify to himself, restricting the number of continuances that can be given, telling judges that they cannot use what other courts often call a suspense docket of deciding the cases aren’t ready to go forward, so we put them to the side and focus on what as a judge we think is right for hearing, ready to go forward. Those are things that look administrative at first blush, but there’s a very clear message to hurry up and complete these cases. And then, when you add on top of that a very white nationalist, very anti-immigrant blog being cited in our official news digest, there’s a clear message being transmitted. And we believe that that is highly inappropriate and is precisely the reason why we want to be taken out of a political branch of government. It’s not appropriate. We do a judicial function, and it should be recognized as such.

MARC STEINER: Well, Judge Dana Leigh Marks, thank you so much for joining us. It’s been a pleasure to have you with us. Thanks for taking your time.

DANA LEIGH MARKS: Thank you so much for having me. I appreciate you helping us get the word out.

MARC STEINER: It needs to get out. This is a very important subject that too few people understand or are paying attention to. I’m Marc Steiner here for The Real News Network. Thank you all for joining us. Let us know what you think. Take care.