With a historic increase in the number of migrants trying to cross the U.S. border, immigration judges on the front lines said the system is reaching a breaking point.
“In essence, we are holding death penalty cases in a traffic court setting,” Judge Dana Leigh Marks said, adding that many judges battle burnout daily.
There are about 500 immigration judges nationwide. They preside over asylum cases, meaning they decide who gets to stay in the U.S. and who must be deported. When President Joe Biden took office, there was already a backlog of 1.3 million cases, and the monthly crossing totals keep rising.
Among the judges’ concerns, as described to NBC News: There aren’t enough of them, they need more support staff, and they’ve felt political pressure from their bosses at the Justice Department. During the Trump administration, that meant pressure to enter orders of removal, even as many asylum-seekers assert that they risk death if they return to their home countries.
Judges in federal trial courts are effectively appointed for life, which can insulate them from pressure. Immigration judges, however, are Justice Department employees who are appointed by and answer to the attorney general, a political appointee.
The immigration judges are represented by a union, but the union is in danger of ceasing to exist because of an action initiated under former President Donald Trump.
“We are in the legal fight for our life to ensure that our decisional independence is valued and maintained,” Judge Amiena Khan said, and “that we as judges are able to do our jobs.”
Khan is the president of the judges’ union, the National Association of Immigration Judges. Trump’s second attorney general, William Barr, petitioned to decertify the union, which has been the judges’ collective bargaining representative since 1979. Eventually, the Federal Labor Relations Authority overturned decades of precedent by ruling that immigration judges are management officials who may not be part of any collective bargaining unit.
The union is contesting the ruling. The next step is for the Federal Labor Relations Authority to rule on the union’s motion for reconsideration.
Dozens of Democrats in Congress signed a letter this month urging Attorney General Merrick Garland and Deputy Attorney General Lisa Monaco to rescind Barr’s petition.
In testimony before the Senate Appropriations Subcommittee on Commerce, Justice, Science, and Related Agencies last week, Garland was asked about the creation of an independent immigration court — separate from the Justice Department. While he said that “immigration judges should be left alone to do their work,” he said that he hadn’t thought much about the issue of whether to structure the system differently — and that it should be a question for Congress.
A Justice Department spokesperson said Garland hasn’t taken a position about whether immigration judges should be allowed to unionize.