A migrant father and child returns to Ciudad Juárez after he had his family's court dates changed by Customs and Border Protection on the Paso del Norte International Bridge after court cancelations amid the coronavirus disease (COVID-19) outbreak in Ciud

Why US immigration judges are leaving the bench in record numbers

The US immigration system is situated within the Department of Justice, a law enforcement agency. That’s always been a problem, explains Judge Ashley Tabaddor. But under the Trump administration, immigration judges have faced “unprecedented micromanagement” — and it’s causing many of them to resign or retire early.

new report out last week shows a record 35 immigration judges in the US left the bench in the fiscal year that ended June 30.

Turnover is the highest since record-keeping began in 1997. Some judges have resigned and some have retired. Their departures come as the US faces an unprecedented backlog of immigration cases, even as the Trump administration has tried to speed up the immigration court process and cut off some categories of immigrants from legal relief. 

Related: Lawyers struggle to remotely represent asylum-seekers in ‘Remain in Mexico’ program

But, according to the report, there has also been an increase in the hiring of new judges. These trends mean immigration cases are increasingly being decided by newer judges with limited experience on the bench.

Judge Ashley Tabaddor is the president of the National Association of Immigration Judges. She joined The World’s host Carol Hills from Los Angeles to discuss why so many immigration judges have resigned or retired recently. 

Related: He’s out of prison and has COVID-19. But he’s still sheltering from ICE.

Carol Hills: Judge Tabaddor, the immigration system in this country involves a lot of waiting. And the data shows that immigration judges have more cases than ever on their docket. Is the huge backlog of cases playing a role in judges leaving? 

Judge Ashley Tabaddor: Yes, the backlog of cases is a factor in many of the judges’ decisions to leave the bench. I think what most people don’t fully appreciate, however, is that our immigration court system and immigration judges are not traditional judges and courts. Our immigration court system is situated within a law enforcement agency, the Department of Justice, and judges are hired and fired by our chief federal prosecutor, the US Attorney General. So the situation and the pressures of being an immigration judge in a law enforcement agency is quite different than being a traditional judge in a traditional court. And that’s why what you have seen, particularly in the last few years, is an implementation of law enforcement policy-oriented tools, making sure that the court is in line with the executive branch’s law enforcement priorities. And those pressures have played a great degree of influence on the judges who’ve been on the bench for a long time to leave, as well as many of those who are hired recently, and came to realize this is really not what they had signed up for. 

Are you implying that immigration judges should be under a different part of government and not in law enforcement? Or are you suggesting that the culture and priorities of this administration make it more of a law enforcement role? 

Both. Definitely the long-term solution, and one that we have been advocating for many, many years, is that you cannot really have a court system and a judicial system that’s controlled by law enforcement agency and a prosecutor. And we’ve seen issues plaguing the court basically from its inception in 1983, in different degrees. But the last few years have been the most interference we have ever seen. Unprecedented micromanagement, as well as recalculating the court into essentially an assembly-line justice.

Introduction of quotas and deadlines was the first time that we have ever had to deal with the assessment of a judge’s performance based on quantity rather than quality. Judges should not be assessed based on the number of cases they turn out but rather based on the quality of the decisions that they issue. That’s what we’ve seen in the last three years, is just an emphasis on numbers and interfering in the judge’s ability to be able to control their docket and make decisions based solely on the facts, the evidence and the law. 

Give us an example. How does running it more like an assembly line affect the judgments and decisions immigration judges are making? 

So, we now have eight different numeric metrics upon which we are judged. One of those is case completion quotas. Every judge, regardless of the type of docket, which means regardless of the type of cases that they’re handling, is expected to complete 700 cases a year. For certain judges, that’s not a problem. We have some judges who are able to complete well over 1,000, some of them close to 2,000, because of the nature of the cases they get.

Other judges cannot be expected to reasonably complete even 200 or 300 cases a year because they’re dealing with very old cases or very complex cases. So, trying to turn everything into one-size-fits-all introduces an external factor into the judge’s decision-making authority. 

If experienced judges are leaving the bench, what kind of impact is that having on the US immigration system? 

Well, that’s going to have a tremendous impact because those judges have a lot more institutional knowledge. They have a good sense of what the cases are likely going to look like two or three years down the line. Right now, particularly the new judges, those who have not had much experience in immigration law and have not been on the bench, do not really have that experience of knowing that, okay, the administration now is telling you to do certain things, but are those things really going to withstand scrutiny when you go through the appellate process? So you’re going to see a lot of inefficiencies that are going to show themselves two, three, four years down the line. 

This interview has been edited and condensed for clarity.

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