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To immigration judges, the difference between perception and reality doesn’t matter all that much. Whether fair to immigrants or not, their courts have long been criticized as suffering from an inherent conflict. The judges’ boss, and the boss of the Immigration and Naturalization Service prosecutors that come before them, is the same person — the attorney general of the United States. The National Association of Immigration Judges now wants to change that. While maintaining that immigrants are given fair hearings, the union nevertheless revived an old proposal and is asking that immigration courts be removed from the Department of Justice. “We believe it’s a structural problem best solved by putting us outside the Justice Department,” said Dana Marks Keener, president of the NAIJ, which represents the country’s 221 immigration judges. But the union faces a fight with their current employers at Main Justice and some members of Congress who feel the judges, if anything, need to be brought to heel. “There has been concern from some members of Congress that some of the immigration judges are not following the laws,” said Jeff Lungren, a spokesman for the House Judiciary Committee. In 1997, a bipartisan committee appointed by Congress recommended an independent immigration court. In calling for that to become reality, Keener said the union wants to avoid the perception that “the fox is guarding the hen house.” She also does not want the move to be seen as a slight against Attorney General John Ashcroft, who has implemented several new court policies since Sept. 11 and vowed to reorganize the immigration courts. He recently announced a proposal to slash the number of Board of Immigration Appeals judges. Putting its money where its mouth is, the union hired Bill McCollum, a former Republican congressman from Florida, to lobby for it on Capitol Hill. “He has been a friend of the immigration courts for years,” Keener said. “We knew that he had respect for us and understood the issues.” Keener, who sits in San Francisco, said she hopes to incorporate the idea into any of a number of proposed immigration reform bills floating around Washington, D.C. However, it appears McCollum, a one-time advocate for tough immigration reform who has since softened his stance, has his work cut out for him. An ideal fit — and a possibility identified by Keener herself — seems to be the House of Representatives’ Immigration Reform and Accountability Act. Co-sponsored by Congressmen F. James Sensenbrenner Jr., R-Wis., and George Gekas, R-Pa., the bill would split the Immigration and Naturalization Service into two and realign resources within the DOJ. As head of the House Judiciary Committee, Sensenbrenner is potentially a key ally. But he won’t be rolling out the welcome mat for the union’s proposal any time soon. “Basically, it goes in the exact opposite direction [of the bill],” committee spokesman Lungren said. With independence, Lungren added, “you lose a lot of the accountability standards.” Lungren said McCollum, who could not be reached for comment, has not contacted the committee. FROM SANCTIONS TO PARKING SPACES To the NAIJ however, the threat of making judges accountable for their decisions is at the root of the problem. The union’s report, for example, relays the rumor of a judge who lost a parking space years ago after ruling against the INS. Critics of the current system cite instances where Justice Department decisions arguably have crossed the line and affected judges’ decision-making, and instances where the INS appeared to influence the Executive Office for Immigration Review, which oversees the BIA and immigration courts. “The taint of inherent conflict of interest caused by housing the Immigration Court within the DOJ is insidious and pervasive,” the union’s report reads. Examples offered by the report and immigration lawyers are numerous: � Although congressionally mandated, immigration judges don’t have contempt power. The union points to reports that DOJ brass decided not to implement it after objections from INS lawyers. � EOIR Director Kevin Rooney served for several months last year as interim INS director, suggesting to some that the DOJ sees the offices as interchangeable. � At one point, the chief immigration judge ordered his judges to stop granting asylum because he suspected — but wasn’t sure — that an immigration cap had been reached. That order led to last year’s Barahona-Gomez v. INS, 236 F.3d 115, a 9th U.S. Circuit Court of Appeals case allowing federal judges to review administrative decisions of the EOIR. � In the aftermath of Sept. 11, the chief immigration judge ordered his judges to hold secret hearings for those suspected of knowing something about the attacks. His memo was leaked to the press. � Finally, the attorney general can simply void BIA decisions. Immigration lawyers say that power, once rarely used, is being exercised more frequently. ‘A LONG TIME COMING’ Lawyers for immigrants couldn’t be happier that the judges have gone out on a limb. “I do think that this is a profoundly important statement because the immigration judges themselves, who represent a very broad cross-section of political views … have identified a serious problem and have called for a very reasonable and practical first step toward addressing that issue,” said Lucas Guttentag, director of the American Civil Liberties Union’s Immigrants Rights Project. “I think it’s a long time coming and totally appropriate,” said San Francisco immigration lawyer Marc Van Der Hout of Van Der Hout & Brigagliano, who successfully argued the Barahona-Gomez case. “They’re basically calling the whole system on the carpet,” Van Der Hout said. Few question the fairness of the bench itself, which by all accounts draws its ranks from a cross-section of the immigration law community. But Van Der Hout said the system is a problem. INS prosecutors, for example, set bail for immigrants — not judges. “It’s all geared to deny due process to immigrants,” Van Der Hout said. Guttentag said independence is especially necessary to ensure fairness because in recent years, INS lawyers have been unyielding in their advocacy. “INS lawyers do not exercise the kind of judgment that we expect prosecutors to exercise,” Guttentag said. The agency “takes a hard line and appeals every adverse decision.” The NAIJ wants to see immigration judges remain a part of the executive branch. The courts and the BIA would still be stocked with administrative judges, overseen by a presidentially appointed director. But so far, the DOJ is not willing to let them go. “The immigration courts and the Board of Immigration Appeals exercise the authority of the attorney general to enforce the immigration laws of the United States,” said DOJ spokesman Dan Nelson, characterizing it as similar to other proposals that have fallen by the wayside over the past 20 years.
Immigration Implications of September 11

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