Special Report: How Trump administration left indelible mark on U.S. immigration courts

[March 08, 2021]  By Reade Levinson, Kristina Cooke and Mica Rosenberg

(Reuters) - On a rainy September day in 2018, Jeff Sessions, then U.S. attorney general, addressed one of the largest classes of newly hired immigration judges in American history.

"The vast majority of asylum claims are not valid," he said during a swearing-in ceremony in Falls Church, Virginia, according to his prepared remarks. If judges do their job, he said, “the number of illegal aliens and the number of baseless claims will fall."

It was a clear message to the incoming class: Most of the immigrants who appear in court do not deserve to remain in the United States.

As U.S. President Joe Biden works to undo many of the restrictive immigration policies enacted by former President Donald Trump, he will confront one of his predecessor's indelible legacies: the legion of immigration judges Trump’s administration hired.

The administration filled two-thirds of the immigration courts' 520 lifetime positions with judges who, as a whole, have disproportionately ordered deportation, according to a Reuters analysis of more than 800,000 immigration cases decided over the past 20 years.

Judges hired under Trump ordered immigrants deported in 69% of cases, compared to 58% for judges hired as far back as the administration of President Ronald Reagan. Because hundreds of thousands of immigrants have cases before the court each year, that 11 percentage-point difference translates to tens of thousands more people ordered deported each year. Appeals are rarely successful.

Biden has promised to dramatically expand the courts by doubling the number of immigration judges and other staff. That’s a worthwhile effort, said Stephen Legomsky, a former chief counsel of the U.S. Citizenship and Immigration Services who is now a professor emeritus at Washington University School of Law in St. Louis. “But the challenge is going to be tremendous.”

Although there are no statutory limits on the number of judges who can be hired, expanding the court would be costly and could take years, immigration law experts said.

"The fact that these (Trump-era) judges are already in place inhibits him a great deal,” Legomsky said of Biden.

Stephen Miller, the key architect of Trump's immigration agenda, told Reuters that the administration had aimed to hire more immigration judges as part of an effort to "create more integrity in the asylum process" and quickly resolve what he termed meritless claims to cut down on a massive backlog.

"Most of the people that are coming unlawfully between ports of entry on the southwest border are not eligible for any recognized form of asylum," Miller said in an interview. "There should be a very high rejection rate."

Under U.S. law, immigrants are eligible for asylum only if they can prove they were being persecuted in their home countries on the basis of race, religion, nationality, membership in a particular social group or their political opinions. Miller said many migrants arriving at the border are coming for economic reasons and present fraudulent asylum claims.

Sessions, who as attorney general had the final say in hiring immigration judges, told Reuters that “the problem is not with the Trump judges. The problem was with some of the other judges that seemed to not be able to manage their dockets, or, in many cases, rendered rulings that were not consistent with the law.”

The Trump administration's successors to Sessions, who was forced out in 2018, did not respond to requests for comment.

Unlike the federal judiciary, which is its own branch of government, immigration judges fall under the executive branch as part of the U.S. Department of Justice, which runs the courts through the Executive Office for Immigration Review (EOIR). All judges must be active members of the bar and have seven years’ litigation experience.

The Trump administration revised hiring for immigration judges to allow temporary appointments before background investigations were completed and gave the EOIR director more control over the process. The administration hired judges so quickly that the American Bar Association (ABA) in a 2019 report warned that the process may have allowed "underqualified or potentially biased judges to be hired due to lack of thorough vetting."

The backgrounds of the judges hired under Trump differed significantly from those named under past presidents. For example, 42% had no immigration experience - double the proportion hired previously. Judges hired under Trump were twice as likely to have military experience, which Reuters found was linked to a higher rate of deportation orders.

"There has been a significant lack of basic understanding of immigration law and policy with many - not all - but many of the new hires under the Trump administration," said Susan Roy, an attorney and former immigration judge appointed during the administration of President George W. Bush who has represented immigrants before some new judges.

Reuters spoke with eight other former immigration judges, five of whom served under Trump, who generally echoed her view. Sitting immigration judges are not permitted to speak to the media.

Even for judges with immigration backgrounds, the type of experience they have has been controversial. In 2017, a report commissioned by the Justice Department found a lack of diversity of experience among judges hired, due to an excess of former prosecutors from Immigration and Customs Enforcement.

EOIR spokeswoman Kathryn Mattingly declined to comment on Reuters' findings about the Trump-appointed judges and did not respond to requests for comment on individual judges’ records. She said the agency "continually evaluates its processes and procedures to ensure that immigration cases are adjudicated fairly, impartially and expeditiously."

Immigration judges and appellate judges are selected through an open and competitive process, free of political influence, she said. Such political impartiality is required under federal law.

CULTURE OF DENIAL

In May 2017, then-Attorney General Sessions selected James McHenry to lead EOIR, tasking him with reducing the ballooning backlog of deportation cases.

McHenry, formerly a deputy to a top Justice Department official, played a more active role in the hiring of judges than his predecessors, said MaryBeth Keller, a former chief immigration judge who served under McHenry and was deeply involved in hiring until she resigned in 2019.

Applicants to these civil service positions are interviewed by panels of senior judges on the court as well as DOJ officials. The teams make recommendations to the EOIR director, and the final decision is up to the attorney general.

Keller said McHenry at times did not follow the recommendations of hiring teams, and seemed to discount candidates with backgrounds in immigration advocacy. Another official involved in hiring, who declined to be named, shared this observation.

"We warned him of our concerns" about political hiring, Keller said of McHenry, who left his role as director in January.

McHenry did not respond to requests for comment.

In September, the Government Accountability Office (GAO) opened an investigation into alleged politicization and mismanagement of immigration courts after 10 Democratic senators accused the attorney general of subverting the hiring process to "promote partisan judges and to increase political influence,” according to an announcement from the senators at the time. One signatory was then-Senator Kamala Harris, now Biden’s vice president.

In a February 2020 letter to the attorney general, the senators cited concerns raised by the immigration judges' union, former judges and the American Bar Association.

It was not the first time an administration has been investigated for allegedly politicized hiring of immigration judges. In 2008, an inspector general’s probe found DOJ officials in the George W. Bush administration violated federal law by considering candidates’ political and ideological affiliations.

Migrants deported from the U.S. walk towards Mexico at the Paso del Norte International border bridge, in this picture taken from Ciudad Juarez, Mexico February 25, 2021. REUTERS/Jose Luis Gonzalez/File Photo

A GAO spokesman said its current investigation is "just getting underway."

‘DOES HE REALLY NEED TRAINING?’

Hiring wasn’t the only thing that changed under Trump. The immigration judges who led training in 2020 had, on average, much higher deportation rates than those in 2016, before Trump took office.

In their own court cases, the Trump-administration training judges ordered immigrants deported 75% of the time, while trainers in 2016 had a deportation rate of 58%. The immigration judge tasked with teaching judges about how to determine the credibility of immigrants had a personal deportation rate of 89%, compared with 37% for the comparable trainer in 2016.

EOIR's Mattingly said the agency has maintained "a robust training plan" for all judges; she did not address Reuters specific findings on training.

New hires have three weeks of training, which consists of lessons in topics ranging from determining immigrants’ credibility to handling juvenile and domestic violence cases to fraud and abuse prevention, according to training documents reviewed by Reuters.

There is a law exam midway through to determine judges’ comprehension of the material. EOIR said the test is not scored. In-classroom training is followed by on-the-job training that includes a structured mentorship program, EOIR said.

Keller, the former chief immigration judge, recalled a 2017 conversation about a new judge - a former ICE prosecutor - who McHenry wanted to start hearing cases immediately. According to Keller, McHenry asked her, "Does he really need training?"
 

Dana Leigh Marks, executive vice president of the judges union, said that she received feedback from union members that the new approach to training was too narrow and inadequate for people with no background in immigration law. The training failed to prepare new judges for heavy dockets with complex issues, she said.

Several new judges without previous experience in immigration have come under criticism from immigration attorneys, colleagues and others.

In a complaint filed with EOIR last year, a coalition of 17 law firms, community organizations and the San Francisco public defender representing dozens of clients singled out Judge Nicholas Ford, a former state criminal court judge hired in 2019. They said Ford "routinely discounts or minimizes reports of mistreatment or torture, and repeatedly misapplies the legal standards for asylum."

In one case outlined in the complaint, lawyers alleged that Ford referred to what their client, a woman from El Salvador, described as daily beatings by her father as a "childhood in which she was spanked by her dad." The alleged domestic abuse was one of several factors she said led her to flee her country.

Ford did not respond to a request for comment.

Judge Leon Francis, a former military judge, was hired in 2018. That year, two EOIR staffers who were working with Francis expressed concern that he lacked sufficient knowledge to adjudicate fairly, according to chat messages between staffers, screenshots of which were seen by Reuters. The staffers alleged, for instance, that he did not know how asylum cases for unaccompanied minors are processed - even though he was to preside over such a case two days later.

The "likelihood he's going to be able to tackle complicated issues with an oral decision is nil," one staffer wrote.

In his two years on the bench, Francis has ordered immigrants deported 90% of the time, according to the Reuters analysis.

Francis did not respond to a request for comment.

Carolina Antonini, an attorney who has defended immigrants in front of Judge John Gillies, a 2018 hire who has a deportation rate of 92%, said she thinks he "acts in good faith" even though she disagrees with his decisions.

"I don't think he denies asylum cases because he enjoys denying nor because he is evil, close minded, or exclusionary," said Antonini. "I think he believes his job is to follow precedent as defined by the training he has received."

Gillies did not respond to a request for comment.

The Trump administration issued a series of precedent-setting decisions and rules that made asylum cases more difficult to win.

The Reuters analysis found that judges hired under the Trump administration were more likely to order deportation, even after controlling for factors such as when a case was completed to account for policy changes. It also accounted for the immigrant’s nationality and other details about the case and judge.

The analysis excluded cases of immigrants who were in detention and those who did not appear in court. It also excluded cases in which the immigrant waived the right to a hearing and those terminated without a decision or closed at the request of a prosecutor. Reuters counted instances in which immigrants agreed to leave voluntarily as deportations.

RUBBER STAMP?

Immigration court decisions can be appealed to the Board of Immigration Appeals (BIA) within EOIR, and subsequently to the United States courts of appeals.

The Trump administration increased permanent membership on the BIA from 17 to 23. The appointments included former immigration judges who themselves ordered high rates of deportation on the bench, according to the Reuters analysis. Those appointed under Trump had ordered immigrants deported 87% of the time, compared to 58% for all other judges over the last 20 years.

As a result, the BIA has become "somewhat of a rubber stamp" for immigration judges' denials, said Charles Honeyman, a former immigration judge in Philadelphia who was hired under the administration of President Bill Clinton and retired in 2020.

Although the number of BIA petitions for all immigrants doubled under Trump to about 180,000, the BIA ruled in immigrants’ favor far less often than under previous administrations, Reuters found. From 2017 to 2021, it overturned about 6,000 fewer deportations than it had in the four years before.

In the case that do go to appellate courts, some judges have upbraided Trump appointees on the board for failing to rule impartially.

In December 2019, 3rd Circuit Judge Theodore McKee, who was appointed during the Clinton administration, lambasted the BIA for ruling to deport Nelson Quinteros, a Salvadoran ex-gang member, despite evidence that he would likely be tortured or killed if sent back.

"It is difficult for me to read this record and conclude that the Board was acting as anything other than an agency focused on ensuring Quinteros’ removal rather than as the neutral and fair tribunal it is expected to be," McKee wrote, in remanding his case to the BIA. "That criticism is harsh and I do not make it lightly."

Quinteros, 28, was released last year, after almost six years in detention, his lawyer said. But after the BIA closed his case, the government filed new immigration charges against him, also stemming from his prior gang affiliation.

He is now waiting to return to immigration court.

(Reade Levinson reported from London, Kristina Cooke from Los Angeles and Mica Rosenberg from New York. Ted Hesson contributed reporting from Washington, D.C. Editing by Ross Colvin, Ryan McNeill and Julie Marquis)

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