The Immigration Court: Issues and Solutions

By Jeffrey Chase, Retired Immigration Judge

The following is the transcript of my lecture on March 28, 2019 at Cornell Law School as part of its Berger International Speaker Series titled The Immigration Courts: Issues and Solutions. Here is a link to the actual recording of the lecture. My heartfelt thanks to Prof. Stephen Yale-Loehr, Prof. Estelle McKee, and everyone at Cornell Law School for the honor of speaking, and for their warmth, intelligence, and dedication.

I’ve had a couple of occasions recently to consider the importance of faith in our judicial institutions. I discussed the issue first in a blog post in which I commented on the Kavanaugh confirmation hearings, and then again in remarks relating to a play I was involved in in NYC based on an actual immigration court case, called The Courtroom. Attorneys more commonly focus on faith in our courts on an individualized, case-by-case basis. But in a democracy, a larger societal faith in our judicial institutions is paramount. And this may sound strange, but a large reason for this is that our courts will not always reach the right result. But society will abide by judicial outcomes that they disagree with if they believe that the result was reached impartially by people who were genuinely trying to get it right. Abiding by judicial decisions is a key to democracy. It is what prevents angry mobs from taking justice into their own hands. In the words of Balzac, “to distrust the judiciary marks the beginning of the end of society.”

If we accept this point of view, I believe that recent developments provide a cause for concern. As Jeffrey Toobin recently wrote in The New Yorker, “these days the courts are nearly as tribal in their inclinations as the voters are,” a point that the partisan nature of recent Supreme Court confirmation battles has underscored.

Our immigration courts are particularly prone to political manipulation because of their unique combination of structure, history, and function. The present administration has made no secret of its disdain for judges’ ability to act as a check on its powers. But the combination of the fact that immigration judges are under the direct control of the Attorney General, and that their jurisdiction concerns a subject matter of particular importance to this administration has made this court especially ripe for interference.

A brief history of the immigration courts reveals it to be what my friend Prof. Deborah Anker at Harvard Law School calls a “bottom up” institution. Immigration Judges originated as “special inquiry officers” within the old INS, where they held brief “hearings” under very non-courtlike conditions. In 1998, while I was an IJ, the court held a ceremony to commemorate the 25th anniversary of the immigration courts. This was not the anniversary of its recognition as a court by Congress, which came much later, but rather, the anniversary of the agency beginning to refer to its personnel as judges.

The keynote speaker at the ceremony was William Fliegelman, who was the first person to hold the title of Chief Immigration Judge. To the extent that his historical account was accurate, the immigration judge corps essentially invented itself, purchasing their own robes, designing the layout of their hearing rooms to better resemble courtrooms, and coordinating with INS district counsel to send its attorneys to each hearings to act as prosecutors.  Judge Fliegelman and then-INS District Counsel Vincent Schiano together created the Master Calendar hearing which is still used by the courts as its method of preliminary hearing. In other words, according to Judge Fliegelman’s account, the immigration judges presented themselves to the Washington bureaucrats as a fait accomplis, leaping fully formed much like Athena from Zeus’s head.

However, the judges still remained employees of the INS, the agency prosecuting the cases. Most of the immigration judges were former INS trial attorneys. It was not uncommon for the judge and prosecutor to go out to lunch together, which didn’t exactly create the appearance of impartiality.  In 1983, the immigration judges, along with the Board of Immigration Appeals, were moved into an independent agency called the Executive Office for Immigration Review (“EOIR”). However, EOIR remained w