Sunday, April 15, 2018

Calling a Shovel a Spade -- Improper use of terms and titles in immigration court

Guest blogger: Jeffrey Walker, law student, University of San Francisco:

Americans have, as a society, granted to the courts a high degree of respect.  There is an underlying trust in the judicial system which gives weight to the decisions of judges and authority to the orders of the Court.  The Constitutional creation of the Court as well as hundreds of years of jurisprudence have developed a system which strives to be just and neutral, and yet recognizes a changing society and has mechanisms to course correct to provide justice with these ever-changing values.  Immigration proceedings that are labeled with the language of the courts take advantage of the societal trust earned by the American court system without heed to the essential elements of justice and reason that have garnered this trust.

            The Court is constitutionally bestowed with authority equal to the legislative and executive branches.  It is this independence from the political riffraff that allows the hallowed checks and balances to function.  The Court’s high duty is to interpret the laws and ensure that justice has been served to the people.

            Immigration “courts” are not statutorily created.  These courts have very limited authority and are formed as a means of delegation from the Attorney General, an office which itself is a mechanism of the Executive Branch.  This court’s function is to aid the Attorney General in carrying out his or her agenda.  These courts do not interpret the laws, but rather shoehorn policy into the civil code.

            Americans trust the court system, because it is designed with neutrality in mind.  The judge in a statutorily created court is beholden only to the law; and should have no personal stake in the outcome of the proceedings.  At the trial level, the judge is charged with ensuring that disputes are settled in an equitable, consistent, and just manner.  At the appellate level, the great legal minds explain the law as it is applied and binds those in the lower courts.  It is the traditions and precedents that allow the law to serve the people.

            Immigration “judges” do not serve these roles.  Judges are mere deputies of the Attorney General.  Too often, transcripts of immigration proceedings show an adverse judge, teamed up with an adverse government attorney to question an unrepresented immigrant who may not have any concept of their rights, or even speak English with the proficiency required to represent one’s self in crucial hearings. 

            The statutory courts, additionally, confine their judgments to civil or criminal trials.  Civil trials are aimed at restoring parties that have been harmed, whereas criminal trials are aimed to punish those that have harmed society.  Immigration courts claim to be civil proceedings.  However, there are no other civil proceedings that routinely involve arrests with heavily armed law enforcement officers, lengthy incarcerations, or the physical banishment of an individual.  To call such proceedings civil and give them the affect of criminal proceedings is not in keeping with American standards of justice.

            The confluence of law and foreign policy require that immigration decisions are made through the executive branch.  However, it is a disservice to the American judiciary to call these rooms “courts” and to call these bureaucrats “judges.”  It is, moreover, farcical to label these proceedings as civil when they so clearly exist within a realm entirely separate from contracts disputes and personal injury claims. In doing these disservices, the American people are tricked into thinking that such proceedings comport to our notions of justice.   If the doctrinal concepts of deputizing Immigration Judges cannot be changed, the semantics which are used to describe these hearings must change.


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