Editor’s Note: U.S. Senator Patrick Leahy (D-Vt.), U.S. Senator Dick Durbin (D-Ill.), U.S. Congressman Jerrold Nadler (D-N.Y.), and U.S. Congresswoman Zoe Lofgren (D-Calif.) have led all Senate and House Judiciary Democrats in a letter condemning recent actions by the Justice Department undermining basic due process protections for immigrants.
Dear Attorney General Sessions: We write to express our profound objection to actions taken by the Department of Justice to undermine central elements of due process and fairness in our immigration system. By imposing numeric quotas upon immigration judges and now attempting to terminate the longstanding Legal Orientation Program (LOP), the Department is systematically deconstructing basic due process protections for immigrants. These measures raise constitutional concerns and stand in stark contrast to the American vision of a justice system for all.
We strongly condemn these recent decisions to undermine the integrity of our immigration system. The Department of Justice exists as a guardian of the rule of law. That necessarily entails protecting the due process rights of citizens and non-citizens alike.
As members of the Committees of jurisdiction over the Justice Department and both immigration and constitutional law, we remind you that the U.S. Supreme Court has firmly established that the Constitution guarantees basic due process for immigrants. The Court has ruled that the “Due Process Clause applies to all ‘persons’ within the United States, including aliens,” and that it is “not confined to the protection of citizens.” The Court has further observed that “aliens who have once passed through our gates . . . may be expelled only after proceedings conforming to traditional standards of fairness encompassed in due process of law.”
Despite these constitutional protections, immigrants often face a starkly different reality than citizens. Children, some as young as three years old, have been compelled to represent themselves before immigration judges because there is no government appointed counsel. Immigrants who do not speak English are often forced to navigate the complexities of immigration law without the aid of a competent interpreter. It is difficult to reconcile these unjust realities with the “traditional standards of fairness encompassed in due process” required by the Supreme Court.
And now, the Department seeks to further erode what little due process exists in our immigration courts. On January 17, 2018, the Department announced new “performance metrics” imposing numeric quotas upon immigration judges. Immigration judges will now be expected to complete 700 cases a year with a less than 15 percent remand rate in order to receive a “satisfactory” performance rating from the Department. But immigration judges – like their peers in other court systems – must not be asked to sacrifice thoroughness and reasoned judgment in favor of speed. Immigration judges must possess sufficient discretion, independence, and information to fairly rule on each legal and factual question before them. This is particularly true because immigration judges are often presiding over cases that have life-and-death consequences. Assembly line justice is no justice at all.
Forcing judges to choose between job security and thoroughness is a direct threat to due process. It is bad policy, and it is not a choice that any judge should have to make. Inevitably, immigrants appearing in court will legitimately question whether the immigration judge’s decisions are driven by the merits of their arguments or the need to quickly process cases. This will only lead to more appeals, clogged circuit courts, longer detention stays, and more backlogs – undermining the purported efficiency-based rationale for implementing these quotas in the first place.
To make matters worse, reports indicate that the Department intends to pause and possibly terminate the LOP and the Immigration Court Helpdesk (ICH) program. These programs connect immigrants with legal services organizations that provide them with basic information about their legal rights and the court process. In 2016 alone, LOP attorneys and paralegals assisted more than 60,000 detained individuals in 38 detention facilities across the country. While the Department claims that the LOP must be paused to assess the cost-effectiveness of the program, its own study in 2012 found that the LOP saved the government nearly $18 million over a three year period. This Department study demonstrates that our immigration system operates more efficiently when immigrants, who have no government appointed counsel, are provided with basic information about the court process and their rights.
The Trump administration’s Immigration and Customs Enforcement (ICE) agrees. An internal ICE memo from November 2017 regarding the LOP states, “[e]xperience has shown that LOP attendees are positioned to . . . complete their cases faster than detainees who have not received LOP.” Thus, the Department’s claim that the LOP must be paused to assess its cost effectiveness appears merely to be a smokescreen masking an attempt to strip immigrants of access to information about their rights.
The Department’s decision to pause the LOP contradicts clear and unambiguous Congressional intent. The FY 2018 Omnibus – which Congress passed and the President signed into law – contains language explicitly instructing the Department to provide funds to “sustai[n] the current legal orientation program.” The legislation also contains language noting the need for expanded LOP services in remote areas. By deciding instead to temporarily halt the program, the Department is ignoring the will of Congress.
We strongly condemn these recent decisions to undermine the integrity of our immigration system. The Department of Justice exists as a guardian of the rule of law. That necessarily entails protecting the due process rights of citizens and non-citizens alike. We believe the measures described above undermine the most basic notions of fairness in the American justice system, and thus the rule of law itself. We urge you to reject these ill-advised policy changes.
Patrick Leahy, Jerrold Nadler, Richard J. Durbin, Zoe Lofgren, Dianne Feinstein, Christopher Coons, Richard Blumenthal, Mazie K. Hirono, Cory A. Booker, Kamala D. Harris, Sheila Jackson Lee, Steve Cohen, Henry C. “Hank” Johnson, Jr., Theodore E. Deutch, Luis V. Gutiérrez, Karen Bass, Cedric L. Richmond, Hakeem Jeffries, David N. Cicilline, Eric Swalwell, Ted W. Lieu, Jamie Raskin, Pramila Jayapal, Bradley S. Schneider, Val Butler Demings