Immigration Judges Call for Independent Court

WASHINGTON —  In a rebuke to Atty. Gen. John Ashcroft, the nation’s immigration judges are asking Congress to remove their courts from control of the Justice Department.

The judges are particularly concerned about complaints that America’s “core legal values” have been compromised since the Sept. 11 terrorist attacks, according to a 20-page report sent to Congress by the union representing the judges.

This is the first time the judges have taken a public stand on an issue since their union was created 23 years ago. The report follows a series of executive orders by Ashcroft that limited the judges’ discretion in hundreds of cases of immigrants detained after Sept. 11 and kept secret hearings that would normally be open.

“It’s not something we take lightly in doing. As employees of the Department of Justice we don’t have a lot of freedom to speak out,” said San Francisco Immigration Judge Dana Marks Keener, speaking as president of the National Assn. of Immigration Judges, the AFL-CIO-affiliated union that represents the 220 judges.

The union’s report concludes that a separate court is the only way to restore public confidence. “It is the most fundamental aspect of due process that one be given the opportunity to present one’s case and confront the adverse evidence in an impartial forum,” the report states. “At present, there is at least the perception that this is not always provided.”

Justice Department spokesman Dan Nelson said Wednesday that the agency would not support the judges’ proposal “principally because the immigration courts and Board of Immigration Appeals exercise the authority of the attorney general to enforce the immigration laws of the United States.”

Ashcroft said previously that, since Sept. 11, his office has sought to strike a balance between the rights of detainees and the need to protect the United States from further attacks.

The report, which was obtained by The Times on Wednesday, will be used to lobby Congress. It calls for creation of a new agency in the executive branch to house the judges, one that would guarantee “independence and impartiality in the hearing process.” The judges currently work for the Executive Office for Immigration Review, an arm of Justice that was created in 1983. The judges used to work for the Immigration and Naturalization Service. But that posed a potential conflict because INS lawyers argue the government’s cases before the judges.

Conflict of Interest Seen as ‘Pervasive’

The judges say that the conflict still exists. “The taint of inherent conflict of interests caused by housing the Immigration Court within the DOJ is insidious and pervasive,” the union’s report says.

The judges say that INS influence over the Justice Department’s immigration policies and practices spills over into judicial matters. They cite Ashcroft’s Oct. 31 rule that allowed the INS to override immigration judges’ decisions to release Sept. 11 detainees on bond.

Some of the issues in the union’s report have been smoldering for years. In 1996, Congress mandated that immigration judges had the right to cite people in their courtrooms with contempt. But before the mandate could become law, the attorney general had to write rules for how the power could be used.

No such rules were ever written. The reason: the INS objected. The judges cite that as a “blatant example” of the immigration service’s undue influence in their department.

Judge Keener said due process protection for immigrants cannot be guaranteed when the same person--the attorney general--oversees the judges and the INS. The report notes that the attorney general’s dual role “creates, at the very minimum, the appearance of partiality. Thus it is not surprising that the public perceives this system as ‘rigged.’ ”

The U.S. Commission for Immigration Reform, a bipartisan panel appointed by Congress, came to the same conclusion in 1997, noting that the judges should not be in the same department as the “enforcement agency that is initiating the proceedings against the alien.”

The union has hired Bill McCollum, a former Republican congressman from Florida, to pitch their case on Capitol Hill. McCollum had introduced a bill in recent years that would have created a separate federal court for immigration judges, but his plan did not have widespread support.

“I don’t know what our chances of success are,” McCollum said of the judges’ new proposal. “They have been after this for some time. This is an opportune moment.”

But some congressional aides were pessimistic. “I don’t think it would receive an enthusiastic reception on the House side,” said Jeff Lungren, spokesman for the House Judiciary Committee. He said some members think the judges need more accountability, not more independence.

The judges’ proposal comes amid plans to reorganize the INS. After the terrorist attacks, Ashcroft said he wanted to restructure the agency that oversees the judges as well. But he has offered no details, except to say he wants to reduce the backlog of cases. His top aides have privately told the immigration review office that he wants the judges “on the same page” as the rest of the Justice Department.

The union’s report notes that a new agency for the judges would free the Justice Department “to focus its mission on the prosecution of those in the United States illegally--an increasingly compelling focus.” Rick Kenney, the spokesman for the immigration review office, said the department would not comment on the union proposal. “They have a right to petition government officials outside this agency. We don’t monitor that and we don’t make comment on that,” Kenney said.

Arbitrary Justice Is Cited in Study

A Los Angeles Times study last year of U.S. immigration courts documented a system of arbitrary justice, in which similar cases would have widely varying outcomes, depending on the judge hearing the case. Immigrants are not entitled to government-paid lawyers for immigration court hearings. Most immigrants did not have lawyers, but those who did were 17 times more likely to win their cases.

After Sept. 11, Ashcroft tightened the rules for hundreds of mostly Middle Eastern men held on immigration violations. Although federal regulations gave judges the right to close hearings on a case-by-case basis, he ordered that every Sept. 11-related case be closed. Detainees’ names are not even listed on court dockets.

Justice officials have said the measures were necessary to protect against disclosure of information that might compromise federal investigations into the Sept. 11 terrorist hijackings and other possible plots.

“Strong criticism has been leveled against the president, the attorney general and the Department of Justice that legal rights have been curtailed in the aftermath of Sept. 11,” the judges wrote. “There are those who say the terrorists have won if we abandon the freedoms which characterize the American way of life.”

They conclude that an independent immigration court would ease those criticisms and “go a long ways towards achieving the appropriate balance between fundamental fairness and security concerns.”