Friday, May 7, 2021
On May 6, 2021, the Executive Office for Immigration Review (EOIR) announced 17 new immigration judges. The EOIR is part of the Justice Department and has the responsibility for the adjudication of immigration matters, including removals and asylum cases. It is well-known that the immigration court backlog is huge and that help is needed. An increase in the number of immigration judges is a possibility. In addition, the immigration court system has been criticized as biased toward removals. Arguments long have been made for independent Article I immigration courts outside the Department of Justice.
Against this backdrop, the backgrounds of the newest group of immigration judges, as well as the selection process, has come under harsh criticism. Paul Wickham Schmidt (former chair of the Board of Immigration Appeals) on Immigration Courtside refers to the list of new judges as "the latest farcical roster of prosecutors, government attorneys, and non-immigration experts to be inflicted on migrants and their attorneys." He proceeds to write that "[f]rom coast to coast, from the Rio Grande to the Great Lakes, Courtside followers . . . are making it clear: Garland’s failure to take due process and racial justice in Immigration Court seriously and his disregard and disrespect for immigration/human rights experts is furthering havoc in the American justice system!" (emphasis in original).
In "17 New Immigration Judges Largely Held Prior Gov't Roles" for Law360, Alyssa Aquino reports that the first new immigration judges in the Biden administration, "include eight former prosecutors, seven attorneys who counseled U.S. Immigration and Customs Enforcement and two who were most recently private practitioners . . ." Later in the article, Aquino writes that "[t]he new judges were largely sourced from government ranks, with eight of them having had recent stints in prosecutors' offices at the local, state and federal levels."
Earlier this month, the EOIR released the names and biographies of 17 new judges. "Thirteen of the judges were appointed by Attorney General Merrick B. Garland, two were chosen by former Attorney General William Barr, who resigned in December, and former acting attorneys general Jeffrey Rosen, who replaced Barr, and Monty Wilkinson after him, each appointed one."
UPDATE (May 12): The controversy continues. See this May 11 Salon article. The title says it all: “`Is Stephen Miller still in charge?': Biden’s first immigration court appointees are all Trump picks".