Is There an Ideological Purge Going on in the Immigration Courts?

Political decisions can’t guide IJ personnel decisions, so expect an investigation

By Andrew R. Arthur on June 22, 2022

The Washington Times reports that the Biden administration has fired at least six immigration judges (IJs) who were hired under Trump, and suggests that DOJ is using political and ideological litmus tests in appointing new IJs. If there is an ideological purge going on in the immigration courts, it threatens judicial independence, but one way or another, the allegations will trigger a congressional investigation.

Background on the Immigration Courts. By way of background, IJs are judges, but unlike judges of the federal district and circuit courts, they are not located within the judicial branch. Rather, they are attorneys appointed by the attorney general (AG) to conduct certain immigration hearings, including removal proceedings under section 240 of the Immigration and Nationality Act (INA).

Why does the AG need IJs? Section 103 of the INA largely vests the secretary of Homeland Security with authority for administering and executing the immigration laws (responsibilities that he shares with the secretary of State), but it makes clear that, when it comes to questions of law, the AG is in charge.

Thus, the AG is responsible for determining who should be admitted, who should be removed, and which aliens should be granted protection and relief from removal. Given that there were more than 1.6 million cases pending in the immigration courts at the end of March, however, the AG must delegate his authority, and the IJs and members of the Board of Immigration Appeals (BIA) are his delegates.

The Executive Office for Immigration Review (EOIR), a DOJ component, houses the immigration courts and the BIA, and the director of that office has supervisory control over those adjudicatory bodies. That said, the director’s duties are largely ministerial, and he has no power to direct adjudications.

The Civil Service Reform Act and DOJ’s Hiring Policy. Under the Civil Service Reform Act (CSRA), federal agencies must apply merits systems principles in making employment decisions for career civil service positions. That includes the hiring and firing of IJs who are career attorneys in DOJ. The CSRA explicitly bars discrimination based on political affiliation.

This is reflected in DOJ’s own hiring policy, which explicitly prohibits political affiliation discrimination, stating in pertinent part:

All supervisors, managers or employees engaged in the career hiring process will adhere to merit systems principles ... throughout the selection process. Furthermore, such hiring officials will refrain from prohibited personnel practices applicable to the hiring of career employees. ... Hiring officials may not discriminate based on color, race, religion, national origin, politics, marital status, disability, age, sex, sexual orientation, status as a parent, or personal favoritism.

The OIG Investigation Into IJ Hiring Under Trump. Interestingly and (presumably) coincidentally, the DOJ Office of Inspector General (OIG) just finished an investigation examining the hiring practices for IJs and BIA members of the Trump administration.

That followed a May 2018 request by eight members of Congress that the office “investigate allegations that after January 2017, offers for IJ and Board Member positions were withdrawn or delayed for political or ideological reasons”.

OIG concluded that there was insufficient evidence that DOJ or EOIR had “engaged in systemic favoring or disfavoring of IJ and Board Member candidates based on political affiliation in the hiring process to warrant opening a full investigation”, though it did propose changes to clarify the existing hiring procedures, improve the record-keeping process, and increase transparency.

The Washington Times Report. The Washington Times does not pull any punches in its reporting on the administration’s hiring and termination of IJs, stating at the outset:

The Biden administration has been quietly packing the nation’s immigration courts, ousting Trump-hired judges and installing judges deemed to be friendlier to the immigrants whose cases they hear, in what one Justice Department official called an “unprecedented” injection of politics into the courts.

Those are strong charges, but the Times backs them up, quoting a DOJ official who asserts: “This turnover is unprecedented in the history of EOIR, and it all appears to be politically motivated in an effort to install Biden allies and pro-Democrat advocacy group supporters in both leadership and adjudicatory positions”.

Not surprisingly, that official “requested not to be named out of fear of retaliation”. I have known the reporter who wrote the piece for almost two decades, and his sources — and sourcing — is solid. Thus I have no questions about the veracity of the quote.

The Process and the Precedent. Newly hired IJs are typically subject to a two-year probationary period, “during which they can be terminated if they fail to consistently demonstrate the necessary abilities, professionalism, and temperament on the bench”.

The Times suggests that it is rare to fire IJs during that probationary period, an assessment with which I concur. That said, there were instances at the outset of the Obama administration in which at least a couple of my fellow IJs (I served in the position from November 2006 to January 2015) were “let go” at the end of their first two years.

It is difficult to prove a negative, and EOIR termination decisions are usually not public, but I am unaware of any IJs who were appointed under the Obama administration and fired by the Trump administration.

I will also note that I have testified before Congress on three occasions concerning the independence of the immigration court (at the Senate Judiciary Committee in April 2018 and the House Judiciary Committee in January 2019 and January 2022), on each occasion beside the president of the National Association of Immigration Judges (NAIJ), the IJs’ union to which I belonged when I was a judge.

In each of the first two hearings, the NAIJ official was critical of the Trump administration’s stewardship of the immigration courts, but she never even alluded to its firing of any sitting IJ, which would lead me to conclude that no such firings occurred.

The EOIR Website. The EOIR website certainly suggests that there has been a change in tone when it comes to hiring IJs, if not a partisan lean.

Its hiring page is captioned “Make a Difference: Apply for an Immigration Judge Position”, which seems to be more appropriate for Marine or Peace Corps recruiting than a search for neutral arbiters to apply black-letter law.

Understand, I certainly hoped that as an IJ that I was “making a difference”. That difference, however, was in terms of helping to tame what was even then an overwhelming backlog by making the right decisions in a timely manner.

In any event, I have no idea who drafted that page, because it includes factual errors from the get-go, breathlessly stating: “The role of the Immigration Judge is to safeguard our nation through the proper application of the immigration laws and to provide refugee protection or even lawful status to those who are eligible and worthy.”

Wow! “Even lawful status”? Who knew that IJs did such things? Well, given that IJs must be lawyers with seven years of post-bar experience, I would hope any qualified applicant would.

Seriously, however, IJs do not provide “refugee protection” per se. As the DHS website explains:

Within DHS, U.S. Citizenship and Immigration Services (USCIS) has responsibility for adjudicating applications for refugee status and reviewing case decisions; the Bureau of Customs and Border Protection (CBP) screens arriving refugees for admission at the port of entry.

It’s true that IJs adjudicate asylum applications for alien respondents in removal and “asylum-only” proceedings, and that eligibility for asylum is premised on whether the alien fits the definition of a “refugee” in section 101(a)(42)(A) of the INA. That said, it’s also axiomatic that IJs don’t provide “refugee protection”, and I would expect any serious candidate to know that.

Speaking of breathless, EOIR’s IJ hiring page also includes the following:

  • Each and every day, the work of an Immigration Judge matters. [Emphasis in original.]

  • If you are interested in a career where you will always make a difference, apply for an Immigration Judge position.

  • If you are not selected, apply again. The competition for these positions can be fierce, especially in popular locations, but there is ongoing need for great candidates. The next time, you might make the cut.

“Make the cut”? Could you even imagine advertisements for any other judicial position, from your local traffic court through the federal courts of appeal, containing such blather?

Here’s the truth: Being an IJ can be a grueling job. You will regularly hear claims about rape, torture, domestic violence, and killings. Worse, you will have to tell some of the people making such claims that they are lying. I am not saying that cynicism is a prerequisite, but any serious applicant should live in the real world and have the sort of psychological carapace that real-world experiences provide.

I have no recollection of seeing any similar casting calls for IJs in the past, but this one was “updated” on February 15, so it presumably is of recent vintage.

DOJ Should Save Its E-Mails, Because Congress and OIG Will Be Calling. The allegations in the Times’ article are shocking if true, so anyone involved in the IJ hiring and termination process would be well advised to save any relevant e-mails. Members of Congress and senators, in either the current 117th Congress or the next one starting in January, will be reaching out to OIG to investigate, and the committees of jurisdiction will also likely be doing oversight of their own.

That said, I have previously written and testified against the legislative creation of an independent immigration court, and nothing in this article changes my opinion. As I have explained, there are real problems with the current adjudicatory process, but creating an Article I immigration tribunal not only won’t fix those problems, it will also make them worse.

The Biden administration is permitted to adopt its own immigration policies, and to leave it up to the electorate to assess the wisdom of its decisions. What the president and DOJ are not allowed to do is to allow politics to guide personnel decisions for the immigration judge corps — which is what the Washington Times asserts it has done.