JUDICIARY INDEPENDENCE UNDER ATTACK IN IMMIGRATION COURT

The Department of Justice / OPPM recently issued a new policy directed to immigration judges, subtly restraining their authority to make independent decisions in granting continuances / adjournments in removal hearings.

While I am not opposed to administrative policies furthering the interests of judicial economy, this particular policy infringes the rights and duties of immigration judges in making decisions.

THE NEW IMMIGRATION POLICY REGULATING HOW IMMIGRATION JUDGES MAY GRANT CONTINUANCES

The Operating Policies and Procedures Memorandum 17-01 amending the 13-01 policy seeks to regulate how and when immigration judges may grant continuances. The new policy influences, at least subtly, how judges grant continuances by “requiring” that they provide a clear reason as to why they grant particular motions to continue proceedings. This policy further provides that the immigration judges should not be providing continuances in some case in order to help reduce the huge back log of around 600,000 cases. Again, I do believe that it is critically important for immigration judges use continuances appropriately and a warranted for good cause (or mandated by case law), but tampering with an independent judiciary is not a desirable policy.

This policy, while suggestive, will nonetheless fetters the independence of the judiciary. I see the unintended impact of the new policy as mandating, albeit subtly, immigration judges on what and when to grant continuances and the length of time they should adjourn proceedings. This may genuinely influence the independent discretion of immigration judges in granting a motion for continuance for a good cause as determined solely by the judge and case law, and not by arbitrary policy. The immigration judge’s decision should not be influenced by any particular person, policy or body to assure the fairness of the case. Immigration judges while not Article III judges should be independent. And, this independence should not be undermined or influenced by arbitrary policy.

One of our country’s founders, Alexander Hamilton, argued for the complete, unfettered independence of the judiciary. But here, the new DOJ-OPPM policy provides guidelines for granting certain continuances such as, but not limited to, continuances to obtain legal counsel. The policy also provides that the immigration judges should only grant one continuance to avoid delays in the removal hearing process.

The role of immigration judges is, or should be to uphold fairness and justice at all times. The policy guidelines further states that continuances for obtaining legal representation should only be granted for an particular length of time. In my opinion, this is arbitrary and unfair. Legal representation is essential to justice and judges should have wide discretion in providing for whatever length of time they see fit on a case-by-case basis. In this respect alone the policy is very unfair to the poor of the society who frequently have trouble obtaining low cost or pro bono representation—hence fundamental fairness and equality is conspicuously absent.

Moreover, the new policy discusses continuances for attorney preparation, continuances of merits hearing and continuous requested by DHS. This strongly suggests that immigration judges, when deciding on motions that touch these issues, should only be granted in limited circumstances. As such, the court’s discretion is being interfered with and hence justice is being breached.

I am not advocating that attorneys should be free to waste the court’s time but rather that immigration judges should be free to render their decisions with unbridled discretion on a case-by-case basis. With regard to the adjournment of cases which have already been set for hearing the new policy provides for the immigration court not to adjourn a particular matter absent circumstances that relates to illness or death of family members, etc.

This prohibition of adjournments interferes with the immigration judge’s discretion to adjourn any matter they consider as having merit. The policy of limiting continuance and prohibiting adjournments on particular matters will unavoidably lead to unfairness, and justice will suffer.

The new policy appreciably hampers immigration judges in the performance of their duties. And, it will inevitably have the effect of paralysing the independence of immigration judges by fettering their right and obligation to make decisions on their own free of unwarranted administrative influence.

The principles of the importance of an independent judiciary was best addressed by Montesquieu in the separation of powers and the spirit of the law where he stated “…for a judiciary to be independent from the limbs of the arms of the government need to separate their powers and only deal with powers which have been granted in order to function and achieve their purpose.”

Conclusion
Independent immigration judges are fundamental to justice. One cannot exist without the other. The new policy seeking to restrict judges in grating continuance and adjournments in removal hearings should be rescinded.