Of immigration judges, judging, and FUBAR systems

If we have to have immigration judges -- and we probably do for the foreseeable future -- let's hope that any reform supported by Democrats is along the lines outlined by Dana Leigh Marks. Judge Marks sits on the immigration bench in San Francisco and is president emerita of the National Association of Immigration Judges. I watched Judge Marks conduct a bond hearing for a detained immigrant facing deportation one day and was pleasantly surprised by her combination of seriousness, professionalism, and compassion.

At present, immigration courts are the stepchildren of the Department of Justice, understaffed, underfunded, and subject to pressures from political bosses. Judge Marks writes it doesn't have to be that way.

... we need to be free to be independent judges, not be monitored and rated like assembly-line workers. We must be allowed to use our expertise to decide our cases without interference. The current structure detracts from due process and makes people doubt the fairness of the courts we preside over. We need skilled, experienced, neutral managers who understand how to run a court and make transparency, independence and public access paramount — not administrators who want to keep the trains running on time above all else.

A number of lawyers’ organizations and scholars agree, and endorse the creation of an Article I Immigration Court. It would free our courts from the political influences of both the Justice and Homeland Security departments and the political whims of each new administration. It would allow a reliable funding stream from Congress to assure we have the resources needed to address our burgeoning caseload in a timely manner. It would mean that neutral judges would use their skills to make the rules and assure a level playing field for all. An independent immigration court will be an efficient and effective court that provides an example to the world of the superiority of the American justice system. We can and must fix this fatal flaw now.

An Article I (of the Constitution) court can be created by Congress for a specific purpose outside, but alongside, the regular federal judiciary created by Article III.

A victorious Democratic chief executive should offer Judge Marks a place in a revamped system. She knows how it ought to work.
...There's a further, nearly unbelievable, wrinkle to the story of the current immigration courts.

President George W. Bush determined that a military court system would be a faster, cleaner forum in which to try War on Terror prisoners (some of whom the CIA had illegally tortured) than the ordinary justice system. After a great deal of litigation and politics, the federal courts and Congress created the Military Commissions which have supposedly been trying terrorism cases that date back to 2000! However, since these "courts" are having to make up their own rules, having been freed of the regular judicial system, yet are subject to review in the real courts, absolutely zero progress has been made toward convicting men we have every reason to believe committed such crimes as blowing up the U.S.S. Cole in port in Yemen and conspiring with al-Qaeda.

The most recent hiccups in the Military Commissions have occurred when it emerged that the two military officers put in place as judges were each concurrently applicants to the Department of Justice to become immigration judges. Defense lawyers howled impropriety/conflict of interest. We hear thanks to ace Guantanamo reporter Carol Rosenberg that these cases are now back to square one, still in pre-trial proceedings after nearly two decades. So much for making up the rules on the fly.