former immigration judge Bruce Einhorn addresses flaws in immigration courts

The September/October volume of Immigration Law Today, a bimonthly publication of the American Immigration Lawyers Association (AILA), featured an interview with retired Immigration Judge Bruce Einhorn (not available online). Earlier in Einhorn’s career, he worked in the DOJ’s Office of Special Investigation prosecuting Nazis and other accused war criminals. He served on the immigration bench for 17 years. He talks about some problems he sees with the current immigration system:

It has been reported that DOJ has appointed several individuals to serve as IJs even though they have little or no experience with the U.S. immigration system. Have you witnessed how a lack of experience on the part of IJs has played out in the courtrooms?

There always have been the occasional nepotistic appointments to immigration judgeships. However, in my 28 years with the Justice Department, spanning five different presidential administrations, and my 17 years as an IJ, I have never seen anything like the attempt under George W. Bush to politicize the selection of immigration judges. After all, I am a moderately liberal Democrat who was appointed to the immigration court in the administration of the first President Bush. The more partisanship has become a staple of judicial appointments, the less independence the immigration courts and the [Executive Office for Immigration Review] have enjoyed within DOJ. More and more, my colleagues have started looking over their shoulders to see what kind of political animal the new Bush appointees to the immigration court are. Remember that immigration judges serve at the pleasure of the attorney general. Therefore, the independent judgment and intestinal fortitude of sitting IJs may well be affected by the partisanship that influences the selection of new judges. All this is not a criticism of my colleagues, who, after all, are human beings with families and bills to pay. Rather it is a criticism of a militantly right-wing administration possessed of an imperial presidency and a raging contempt for the independence of the judiciary.

I know of one instance—reported recently in the Los Angeles Daily Journal—of a Bush-Gonzales appointee to the immigration court at the detention center in Lancaster, CA, who was “persuaded” to resign after he regularly walked into his courtroom carrying a revolver. He also was reputed to routinely utter the “F” word in hearing after hearing. Even DHS prosecutors were appalled by his extreme and injudicious behavior. I know of other Bush administration appointees who have required and received additional coaching and hand-holding from the chief judge’s office because of their lack of knowledge in immigration law and their inability to demonstrate proper judicial demeanor in the courtroom.

With case loads at around 1400 per year per IJ (roughly five cases each business day), the overstretched and underfunded immigration courts can’t afford ill-prepared judges who effectively increase the workload for qualified judges. Also, immigrants appearing before judges who hold their lives in their hands deserve judges who treat them and their attorneys with respect.

What qualifications do you think should be required of judges who sit on the immigration court?

. . .

Frankly, it is high time that the immigration court be made an independent, Article I institution, whose appointments are made by the president upon recommendation of a nonpartisan panel of sitting and retired judges, the chief immigration judge, some academics, and distinguished DHS and private counsel. Such changes would ensure the independence of the court, and better guarantee the bona fides of its judges.

Most people probably don’t realize that immigration judges are not actually part of the judiciary. They are employees of the DOJ, and part of the same branch of government as the Immigration Customs and Enforcement prosecuting attorneys. This seriously impedes their ability to act as fair and impartial arbiters of immigration law. Some judges are more aggressive and punitive towards the immigrants whose cases they decide than are the ICE attorneys prosecuting the cases.

You were instrumental in drafting legislation that is the basis of current asylum law. How did your involvement in this come about? What further reforms in this area do you believe are necessary?

Most people, and many immigration lawyers, are unaware that the United States had no general law for asylum until the Refugee Relief Act of 1980 was passed. During its early years, [DOJ’s] Office of Special Investigation (OSI), where I served as an attorney, was its default agency for human rights issues. The evening before a vote was to be taken in Congress on the asylum bill, DOJ and OSI assigned me to work on a revamp of the legislation, and to include in it a bar from relief for those who had participated in the persecution of others. At that time, personal computers and home faxes were nonexistent, so armed with a pen, paper, and the hubris of youth, I spent the whole night dictating a rewrite of the bill over the phone to DOJ and congressional staffers. The bill was then passed, and I was granted the privilege of having a small role in the advancement of human rights law.

I would like the asylum law—or the regulations that further its application—to specifically include “rape,” “attempted rape,” and “sodomy” as cognizable forms of persecution on account of race, religion, political opinion, membership in a particular social group, or political opinion [sic]. I would like to see the same done for “domestic abuse” and “incest” under the social group category—at least where the home government was unwilling or unable to prevent the violence in question. Finally, I also would like to see DHS spend more resources and time on reviewing asylum applications filed. DHS asylum officers should have more than 20 minutes or so to interview asylum applicants. Most of those applicants are simply referred to the immigrant courts for prosecution. Careful analyses of asylum applications by DHS might decrease the number of asylum cases referred to the courts.

The success or failure of many gender-based asylum claims still depends largely on which circuit court has jurisdiction over the proceedings, with the more liberal-leaning Ninth Circuit being the most favorable. Amending the statute to take into account the way in which much persecution is prompted or exacerbated by gender or sexual orientation could save many lives.

A claim of asylum can be filed either defensively in immigration proceedings, or affirmatively with an asylum officer. If an officer decides not to approve an asylum application and the applicant is not in lawful immigration status, the case will be referred to an immigration judge to make the final decision. Like immigration judges, asylum officers are also overstretched. The easiest thing for an overworked asylum officer who may not want to deal with a complicated case is to simply refer it to the judge. This adds stress to the overloaded immigration courts.

There is no filing fee for asylum applications, but before they are referred to an immigration court, asylum claims are adjudicated with funding from other immigration application fees. So some portion of the fee an intending immigrant pays to file an application for a green card, for instance, goes to pay the cost of deciding somebody else's affirmative asylum application. In addition to raising questions of fairness, this leads to unwieldy caseloads, shortchanging asylum applicants of an opportunity to have their claim fully heard by an asylum officer. This is just one of the ways the U.S. undermines its treaty obligation of non-refoulement—the prohibition against sending refugees back to territories where their life or freedom would be threatened.

See also this LA Daily Journal profile (pdf) of Einhorn from earlier this year.