…immigration judges aren’t minor backroom bean counters; they’re responsible for conducting formal court proceedings to determine what should be done with aliens who have been apprehended by federal authorities. Yet the former attorney general of the United States admits that he literally didn’t know how they were being screened and selected by people under his direct supervision… It’s particularly disappointing that someone with extensive experience practicing law in a border state would have so little regard for selecting qualified immigration judges.
It is indeed pretty horrifying that an Attorney General was (or pretended to be) ignorant about the hiring portfolio of one of his employees, regardless of what that hiring portfolio included. But the situation is a little more complicated than Patashnik admits.
In fairness, I don’t blame people who haven’t been spending their days at immigration court for the last few weeks like I have (it’s so I can write one of these, though I doubt it’ll attract the attention of future generations of oppo researchers) for not understanding the bizarrely nebulous relationship immigration court has with the DoJ (through the Executive Office of Immigration Reform, which employs judges) and the Department of Homeland Security (Citizenship and Immigration Services, Customs and Border Protection and ICE all have some role in referring cases; prosecutors are employed through ICE as well).
Suffice to say that it’s undeniably true that the DoJ hires immigration judges, but immigration court itself is a weird melange of departmental responsibilities. It’s not that the division of labor is unclear, at least in terms of the system: one of my sources explained to me that a 2003 law provided summary clarification by listing all the cases in which the phrase “at the discretion of the Attorney General” should be replaced by “at the discretion of the Secretary of Homeland Security.”
At the level of individual cases, there’s often some wiggle room regarding whether a case should be handled judicially through EOIR or administratively through CIS. That’s to be expected, but the push-and-pull doesn’t stop there. To cite just one example, hearings for detained individuals are held in a courtroom in ICE offices; cases for non-detained individuals are heard across the street, in a courtroom at EOIR offices. The same ICE attorneys and EOIR judge preside at both.
At the federal level, of course, it’s clear that more emphasis and resources are being placed on immigration court on the ICE end than the EOIR end: think how many people might have been involved in planning the Postville raid, and then think of the understaffing of immigration judges. Furthermore, ICE initiatives like Operation Streamline, which are currently overwhelming federal (criminal) judges in border states, were designed to decrease the caseload on immigration judges — making EOIR even more secondary to immigration proceedings. (This is also why, contra Patashnik, Gonzales’ legal experience in a border state didn’t make him automatically more likely to pay attention to immigration judges as Attorney General.)
Clearly, there were broader failures in corporate culture at the Department of Justice under Gonzales. But the obliviousness regarding immigration judges speaks just as much to another paradigmatic failure: the tendency of the federal government to treat immigration exclusively as an issue of Homeland Security despite its roots in Justice, to the extent that the latter is forgotten entirely.
I’m well aware that in some anthropological circles it may be considered compromising my fieldwork to blog about it during the period I’m in the field, even though most of this information is publicly available through other means and none of it is confidential. I’m also well aware that in some anthropological circles the question of “relevance” is paramount, and relevance doesn’t wait for formal peer review. Besides, I’m an undergraduate. Cut me some slack.
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