Rishi P. Oza
By Rishi P. Oza
Change in the field of immigration law is sometimes sudden, but usually quite gradual. President Obama’s announcement of Deferred Action for Childhood Arrivals (DACA) was a response to a months-long but ultimately failed push for comprehensive immigration reform. President Biden largely ignored the issue of border security, letting in hundred of thousands of individuals over the course of his presidency.
The past two decades have seen successive presidential administrations extend Temporary Protected Status and other humanitarian protections for various country nationals due to war, disease and natural disaster.
Calling the changes that the country has seen in the 14 months of President Trump’s actions can only be described as drastic. He has effectively closed the US southern border as Candidate Trump promised and has unleashed ICE on American cities in an attempt to push deportations. The former has proved to be a winning issue for him, as the majority of Americans generally disdain illegal border crossings. The latter has been a complete disaster with the siege of Minneapolis resulting in the deaths of two Americans and the ultimate sacking of DHS Secretary Kristi Noem. Noem’s departure marks a rather remarkable turn for the former South Dakota governor, who was once considered a Vice-Presidential candidate and allegedly harbored ambitions of her own run for the presidency in 2028.
Trump’s immigration agenda has not just focused on headline grabbing ICE raids, but also on the systemic operation of the immigration courts. Immigration courts are housed under the US Department of Justice and unlike traditional judges are political appointees that serve at the pleasure of the US Attorney General. As the Attorney General is a political appointee of the President, an individual in removal proceedings is effectively prosecuted by an attorney from the US Department of Homeland Security, which is controlled by the President, and judged by an Immigration Judge from the US Department of Justice, also controlled by the President.
While each Department avers that it operates in full observance of the law without fear or favor, any reasonable observer would see that an Immigration Judge that is interested in keeping his/her job may be more inclined to follow the whims of an anti-immigrant Attorney General.
Unsurprisingly, the DOJ is also seeking to institute more regulatory changes to fast-track removals from the United States. Currently, an individual in removal proceedings can request relief from removal from an Immigration Judge. Should the Judge decline to permit someone the ability to stay in the US and order them removed, that individual can challenge such a ruling before the Board of Immigration Appeals, which serves as a review board on Immigration Judge decisions.
A new regulatory announcement now indicates that the BIA will no longer here appeals on individual cases but will issue “Summary Dismissals” – effectively rubberstamping the decision of the Immigration Judge. Doing so will help to reduce the current backlog before the Immigration Courts and, as indicated in the DOJ announcement, would still permit individuals to pursue further appeals in the federal courts.
In short, the BIA would simply pass along the burden of appellate adjudications to the federal courts, as opposed to simply doing its job more efficiently. An individual’s right to have a meaningful review of an Immigration Judge’s decision would effectively be thrown out with the bathwater, unless a panel of BIA judges specifically wanted to hear an appeal.
Proponents argue that the Supreme Court takes such action routinely and does not hear every case that seeks its review; however, the Immigration Courts and BIA cannot reasonably be compared to the nation’s highest court. For starters, the Supreme Court is limited to only nine justices, which inherently limits the docket that the high court can reasonably review. The DOJ on the other hand has a rather large budget and is simply electing to not invest more in personnel that can clear the backlog.
Proponents also argue that a hearing before an immigration judge does sufficiently provide an individual with due process, particularly if that individual is in the country unlawfully. On a macro level, this argument is reasonable, as individuals that are in violations of the immigration laws should not necessarily expect endless appeals to try to remain in the country. However, when examined on a case-by-case basis, practitioners can relay horror stories ill-advised decisions that simply do not withstand appellate scrutiny. Any country of law would be best served by a faithful observance of the rule of law over simple case turnover.
This seismic change further magnifies the need to remove the Immigration Courts from the US Department of Justice and place them into an Article I context. The federal courts are considered Article I courts and controlled by the federal judiciary. While not perfect, the courts do function relatively well, largely due to their independence from either the Executive or Legislative branches. As a co-equal branch of the government, the federal courts are charged with interpreting the law and determining if it has been applied correctly.
In its current iteration, both the prosecutor and judge are run by the Executive, which calls into question any rational argument of fairness, particularly under an Executive branch that so clearly seeks to enact large-scale deportations.
Trump has harnessed both the shock and awe of news-grabbing public stunts by ICE agents, as well as a more technocratic approach of gutting court independence and oversight. This two-pronged approach has resulted in a whiplash of sorts on the immigrant population and practitioners alike. While the upcoming Congressional midterms may be a referendum on the public’s appetite for further action, Trump’s willingness to “flood the zone” with executive changes, while also navigating international crises (many of his own making), gives cover to some of his more audacious ideas. Whether this change will withstand actual judicial scrutiny remains to be seen and the DOJ is now suffering from serious attrition within its ranks. Regardless, he will continue to push the envelope with once-unheard of ideas in hopes of reimagining the nation’s immigration laws, for better or worse.
Opinions expressed above are those of the writer and not necessarily of the publisher or editor.
Rishi P. Oza is Partner at Brown Immigration Law, a firm that focuses solely on immigration law; he practices in Durham. Contact: roza@rbrownllc.com.
