NYSBA Adopts Resolution Urging Congress To Ensure Independence of Immigration Courts

By Christian Nolan

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During its House of Delegates meeting today, the New York State Bar Association adopted a resolution urging Congress to establish an independent immigration court system that protects immigration adjudication from political pressure.

Currently, the Executive Office for Immigration Review (EOIR), comprised of immigration courts and the Board of Immigration Appeals (BIA), is housed within the U.S. Department of Justice (DOJ), a law enforcement agency. According to the resolution, there is an inherent conflict of interest in housing a judicial adjudicatory body such as EOIR within the DOJ, a federal agency primarily charged with law enforcement.

The Trump Administration, according to the resolution, implemented several policies that erode judicial decisional independence and neutrality by aligning the immigration courts and the BIA more closely with the administration’s goals of enforcing harsher and more restrictive immigration policies.

Specifically, the Trump Administration attacked judicial independence by politicizing personnel decisions, restricting immigration judges with performance metrics, reassigning cases, attempting to silence immigration judges, bypassing the appeals process by having the Attorney General certify immigration cases to himself, restricting immigration judges’ ability to manage their dockets and restricting immigrants’ substantive rights.

NYSBA’s Committee on Immigration Representation presented the resolution for adoption at the Association’s HOD meeting.

“The Committee on Immigration Representation has grave concerns about the ways in which the integrity and independence of the immigration courts and the Board of Immigration Appeals were deliberately undermined over the last four years,” said Hasan Shafiqullah, chair of NYSBA’s Committee on Immigration Representation. “In order to ensure due process and the fair administration of our laws, we need an independent Article I immigration court system, one that is protected from political pressure and interference. It is long overdue.”

Shafiqullah, attorney-in-charge of the Immigration Law Unit at the Legal Aid Society, said these practices were brought to light in the New York City Bar Association’s October 2020 “Report on the Independence of the Immigration Courts,” jointly issued by the city bar’s Immigration and Nationality Law Committee, Task Force on the Rule of Law, and Task Force on the Independence of Lawyers and Judges. NYSBA adopted the report at the HOD meeting.

Since the city bar’s report was issued last fall, Shafiqullah said the Trump Administration took additional steps to undermine the independence of the immigration judiciary, first by issuing an executive order subjecting policy-making federal employees to termination at will and then by decertifying the immigration judges’ union on the basis that immigration judges and BIA members are management officials because they are policymakers.

Together, Shafiqullah said these steps would allow the DOJ to terminate any immigration judges and BIA members who incur the disfavor of the DOJ or the president. Regardless of who may be in the White House, he said no administration should have the authority to “manipulate and undermine the integrity of the immigration judiciary.”

Other Initiatives

Shafiqullah said the Committee on Immigration Representation is also advocating for full funding of the Liberty Defense Fund, which provides state funding for immigration legal services. He said the committee also continues to support the New York State Access to Representation Act, which would provide universal representation in immigration removal proceedings.

The committee is planning CLEs on virtual representation in immigration hearings, undoing the regulatory and other executive actions of the last four years, digital forensics, border searches, and more.

Scheduled for Feb. 17 is a CLE webinar co-sponsored by the Committee on Immigration Representation and Committee on Continuing Legal Education entitled “Immigration Law Update: Reversing Immigration-Related Administrative Actions.”

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