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Immigration Law

On Choosing the Next Chief Immigration Judge: Hon. Jeffrey S. Chase

Hon. Jeffrey S. Chase, July 25, 2022

"On July 21, we were treated to the news that our nation’s immigration courts will no longer be run by a chief judge specifically installed by the prior administration as part of its plan to undermine those courts’ independence and fairness.  The fact that this development took a year and a half to occur, evoked surprise, and was met with  accusations of wrongdoing and threats to investigate from conservative corners that read as parody says a lot about the present state of those courts.

The Chief Immigration Judge should be in charge of the hiring and training of judges, and in setting policy for the courts.  The holder of that title is the person most  responsible for creating the environment in which the Immigration Courts function.  Unfortunately, the choice to fill this position has too often been an afterthought.  And the Trump Administration succeeded in stripping the office of pretty much all authority; one of its appointees was effectively reduced to internally disclaiming “it wasn’t my decision” in response to every controversial directive issued from his office. 

It is therefore extremely important for the Biden Administration to give much thought to its next appointee, and in doing so, clearly define what the position is meant to be.  And although that appointee serves at the will of the Attorney General, Merrick Garland, formerly a distinguished circuit court judge, is particularly qualified to understand the need for a  strongly independent Chief Immigration Judge willing to push back against threats to due process. He should thus afford his choice for the position the authority to do just that.  Because when courts fulfill their proper function of providing a fair reading of the law and  protecting against government error and overreach, we all benefit.  

It is important to note that no Chief Immigration Judge has been chosen from the ranks of immigration law scholars.  I think this is partly because unlike their counterparts at the B.I.A., the Chief Immigration Judge is not actively involved in deciding cases; theirs is an administrative job.  However, it is high time for that view to change. Now would be an ideal opportunity to appoint someone to the position who knows the law at least as well as the judges they will oversee.

Among other reasons, that degree of knowledge is necessary to allow a chief judge to differentiate between legitimate actions taken by judges based on their good faith interpretations of the law, and alternatively false justifications disguised as legal reasoning offered by those whose real goal is to carry out a particular agenda.  The ability to clearly articulate the difference is needed to protect the former, eliminate the latter, and rebut the inevitable claims of political motivation in response to such actions.

As a brief recap, under the Trump Administration, we saw plenty of examples of improper political motive.  For instance, the Immigration Courts issued not one but two broadsheets of anti-immigrant propaganda unironically titled “Myths vs. Facts” (in spite of being devoid of the latter).   In addition, a highly respected Immigration Judge  was wrongly chastised for correctly doing his job because his concern for the due process of the non-citizen was not shared by the then powers that be. As if that wasn’t bad enough, the judicial equivalent of a “hit man” was dispatched from D.C. to Philadelphia for the sole purpose of entering an order of deportation in that case, due process concerns be damned.  The entire exercise was clearly intended as a message to other judges of the consequences of acting as anything other than a rubber stamp.

When in spite of such warnings, many Immigration Judges continued to grant asylum claims because the correct application of the law required it, the Trump Administration hired new and unqualified judges who would place loyalty to its nativist agenda above all.  One of those hires had actually written a shockingly insulting article only months before his appointment, labeling as “rebels without a clue” all of his soon-to-be colleagues who had issued scholarly, well-reasoned opinions granting asylum to female victims of domestic violence.  The author demonstrated what should have been a disqualifying lack of knowledge in broadly characterizing all such claims as falling outside the scope of our asylum laws, and in further accusing more learned judges who concluded otherwise of “grossly exceeding their authority” and engaging in a “gross violation of legal ethics.”

What was needed then was a Chief Immigration Judge willing to say “over my dead body” to these hirings and other abusive actions.  It is greatly hoped that the next chief judge will possess both the integrity and authority to do just that, with the knowledge that higher-ups within the agency will stand behind their decisions.

And since we won’t always have a former Circuit Court judge serving as Attorney General, it might be worthwhile while we do to ask for regulations (or at least some form of guidance from above) clarifying what will henceforth be expected of those filling the position, and calling on all personnel within the Department of Justice to encourage and support the independence of their colleagues charged with carrying out judicial functions."

Copyright 2022 Jeffrey S. Chase.  All rights reserved.  Jeffrey S. Chase is an immigration lawyer in New York City.  Jeffrey is a former Immigration Judge and Senior Legal Advisor at the Board of Immigration Appeals. He is the founder of the Round Table of Former Immigration Judges, which was awarded AILA’s 2019 Advocacy Award. Jeffrey is also a past recipient of AILA’s Pro Bono Award. He sits on the Board of Directors of the Association of Deportation Defense Attorneys, and Central American Legal Assistance.