Immigration courts: those who know paint a dismal picture

It looks like a courtroom -- but that's not really the truth.

William Hanrahan had been a prosecutor and a state judge before he took on managing the federal immigration court in San Francisco. He lasted 14 months before quitting in frustration. If we needed more testimony to the travesty legal process that the so-called immigration courts perform, he's eager to offer the sad facts.

Hanrahan said he encountered a “soul-crushing bureaucracy” that he found shockingly unlike the regular American legal system. After little more than a year in the job, he called it quits this month, frustrated, he said, with a system run by the U.S. Department of Justice and subject to its political whims, a top-down management style that throttled innovation and slow-walked modernizing reforms, and a disconcerting proximity to the Immigration and Customs Enforcement attorneys who act as the court’s prosecutors.

... Ultimately, Hanrahan said, it’s the immigrants themselves seeking a chance to stay in the U.S. who are left bearing the burden of the disorganization. The unusual management of the immigration courts by the Justice Department means judges are ultimately hired by and answerable to the attorney general, who is the nation’s top prosecutor and a political appointee, usually with a policy agenda.

... “I just thought I was going to actually be a judge,” Hanrahan said. “They’re not real courts. When I first started, I truly felt like a stranger in a strange land. ... It was not consistent with my training and experience as a judge.”

... “Every day that [their] case is pending is a cloud of uncertainty over their futures,” Hanrahan said. “You can’t make plans, you can’t buy a house, you might not be able to get married. Having children, all the kind of the daily decisions of life, the future is just held in abeyance, it’s got to be really distressing. And then of course the effect on the children, the children who are American citizens, not knowing whether dad’s going to be deported.”

... Biden has changed the court’s top leadership, but the political control and micromanaging policies that confoundingly tie judges hands remain intact, Hanrahan says. “I did hold out hope that there would be some change with the Biden administration, but I did not see any indication whatsoever of the fundamental organization of the agency changing,” he said.

... “These [migrants] are not the people I was dealing with in my criminal rotation in the circuit court, these are not people doing bad things to other people, by and large,” he continued. “These were people out in the hallway cuddling their children and reading stories to them waiting for their cases to be called. There are people that were working long hard days at really tough jobs, jobs that most Americans wouldn’t take for low wages, they were paying taxes but getting very little in return.”

Representative Zoe Lofgren is pushing a Congressional overhaul of the immigration court system. She wants the courts removed from Justice Department authority.

The American Immigration Lawyers Association --  some of the few people with an intimate acquaintance and an overview of the system -- say it's time for structural change. They propose a three part reform:

• Create an Independent Immigration Court. To operate in a balanced and fair manner, the immigration courts must be separate and independent from DOJ. Congress should pass legislation creating an independent, Article I immigration court. 

• Restore due process. Congress should ensure that DOJ and the Executive Office for Immigration Review (EOIR) reverse policies that rush cases at the cost of due process and encourage them to rescind policies that unduly restrict access to asylum and other forms of relief. 

• Support the right to counsel. Having legal counsel is the single most important factor in ensuring migrants get a fair day in court and in ensuring due process. Congress should pass legislation guaranteeing appointed counsel and access to counsel, and fund Executive Branch programs that support the right to counsel.

Early evidence suggests the Biden administration is unlikely spend its small store of legislative capital on these measures, but justice advocates can't stop pushing. Lives are at stake.