Ex-immigration judges from Baltimore and beyond call for reform
Making judges free of political pressure, they argue, would bring more due process for asylum seekers and could help reduce the court’s crippling backlog of 1.3 million cases
Above: Critics say the immigration court needs to be depoliticized.
When Dania finally had her day in Baltimore Immigration Court, where she was appearing in hopes of receiving asylum, she spared no detail.
She recounted the painful domestic abuse she had frequently suffered in Guatemala, only to be surprised at how the judge reacted:
He wanted to speed up the trial.
“I was sure we would be able to win my case, but the judge didn’t consider all parts of my story,” said Dania, recalling how he peppered her with questions but repeatedly cut off her answers.
“He wouldn’t let me speak – he would tell me that I had to respond ‘yes’ or ‘no,” she recalled.
Hearing about the October 2020 experience endured by Dania, whose last name has been omitted because of concerns about her immigration status, John F. Gossart Jr. says she was probably a victim of what he considers an unfortunate reality – immigration judges who lack judicial independence.
As a former judge who spent most of his 31 years on the bench at the immigration court located in the George Fallon Federal Building, Gossart has lived this problem.
He served two terms as president of the National Association of Immigration Judges. In 2017, he helped create the Round Table, a coalition of over 50 former U.S. immigration judges who have taken on judicial independence as a key focus of their advocacy.
“I was there through five different presidents, many different administrations, and probably all of them with the exception of the Trump administration have at least put forth in their operation policy and procedures memoranda that the judge is independent,” Gossart said in an interview.
“But it was largely lip service because it was all about the bottom line – getting these cases heard and out the door,” he explained.
Gossart is one of many advocates calling for the nation’s immigration court system to be overhauled, amid a backlog that has grown to 1.3 million cases.
The caseload has ballooned not just because the pandemic closed courts for more than a year, they say, but because of actions taken by the Trump administration that forced judges to put many cases that were essentially closed back on federal court dockets.
Retired Immigration Judge John Gossart’s 2017 interview with Soledad O’Brien. (YouTube)
Subject to Politics
Federal immigration courts operate within the U.S. Department of Justice. And this, Gossart and his colleagues at the Round Table say, creates an inherent conflict-of-interest because judges ultimately answer to directives from the attorney general, a political appointee.
“Judges shouldn’t report to the nation’s chief prosecutor,” said Jeff Chase, another former immigration judge and member of the Round Table.
Though an immigration judge’s role is to determine the facts of an immigrant’s case and rule as they see the law applies, Gossart’s colleagues agree that judges are often pressured out of being impartial arbiters.
“It’s a fundamental flaw in the system when you have a court that’s part of an agency that prosecutorial” – Former Immigrant Judge Carol King.
“It’s a fundamental flaw in the system when you have a court that’s part of an agency that’s prosecutorial,” says Carol King, a former judge at San Francisco’s immigration court. “It’s something we as judges recognized decades ago.”
Gossart, a graduate of the University of Baltimore School of Law who also served on the faculty there, certainly did.
While serving as president of the National Association of Immigration Judges between 1984 and 1986, he and many other fellow judges began advocating for granting immigration court Article I status, like the U.S. Tax Court and Court of Veterans Appeals ,where judges are autonomous.
As Congress now considers a host of reforms, Gossart and the Round Table are specifically pushing for legislation that would make the change.
If the judges were to derive their authority from Article 1 of the Constitution (instead of Article 3 as they currently do), they wouldn’t have to comply with political agenda directives that shift with changing administrations.
Paul Schmidt, another member of the Round Table, says he understands why the change hasn’t happened. He and Gossart both say that, time and again, they have heard DOJ officials say everything is fine the way it is.
“It makes litigation sense to own the court system,” says Schmidt. “I can understand why, from a policymakers’ viewpoint, it’s convenient to market it as an independent court when you want, but they will send a message internally that you work for the AG [Attorney General] and you carry out their policies.”
Officials from DOJ did not respond to multiple requests for comment regarding this story.
Had the judge not rushed through the trial, he might have granted asylum, lifting Dania out of her state of limbo, says her lawyer.
Several organizations, including the American Bar Association and American Immigration Lawyers Association, support the move to Article I status for the immigration courts.
With the change, Gossart and his colleagues think that immigrants, like Dania, will have a better chance at due process and a fair trial.
Ultimately, Dania was granted “withholding of removal,” an immigration benefit less generous than asylum. It will allow her to stay in the U.S. and work, but offers no pathway towards citizenship.
Her attorney, Maria Colon, thinks that had the judge not rushed through the trial, he might have granted asylum, lifting Dania out of her state of limbo.
Judicial independence came under increased fire during the Trump administration, both at Baltimore’s immigration court and at others across the country. “The sitting judges had virtually no independence regarding managing their docket and ensuring due process,” Gossart said.
Several immigration judges stepped down during the Trump years – and many because of increased pressure coming from former attorneys generals William Barr and Jeff Sessions.
Illyce Shugall is one of them. “When case quotas and performance metrics came out, that’s when it was a breaking point for me,” said Shugall, a former immigrant judge in California.
“Until then, I felt like I still had the ability to look at each case individually. . . afford everyone before me with due process. I felt like all of that was being taken away from me.”
It isn’t just Trump. Former President Obama and now President Biden have used immigrant court to further their policy agendas.
It isn’t just Trump. Shugall says that every administration, including that of former President Obama and now President Biden, uses immigration court to further certain policy initiatives.
In May, Biden announced a specialized “rocket docket” for asylum seekers at the U.S.-Mexico border. The administration wanted to provide quicker, more streamlined asylum hearings for newly arriving migrants so the case backlog wouldn’t grow.
Such dockets are “an attack on due process” that ultimately make the backlog worse, Shugall said. “And it is very political – it’s each administration’s way of dealing with the political pressure.”
Paul Schmidt of the Round Table says that another fundamental flaw of the immigration court system is the lack of right to counsel – immigrants going before the court have to find their own attorney.
Immigrant advocates here in Baltimore pushed to change that during the most recent legislative session in Annapolis. A new bill would have provided universal representation for detained immigrants going before an immigration judge in Maryland.
The legislation died in committee.
• Daniel Zawodny is a Baltimore-based paralegal and freelance journalist who reports on immigration law and immigration issues. His writing has appeared in Catholic Review and NACLA (North American Congress on Latin America).