Attorney General William Barr is making drastic changes to the immigration courts, setting up a system in which a handful of appellate court immigration judges can issue sweeping rulings that limit the actions of every other judge in the system. And Barr is on a hiring spree to make sure that the immigration courts are packed with the people necessary to see that Donald Trump’s will is imposed.
As the San Francisco Chronicle reports, the Trump White House is presenting these changes as “efficiency measures” to speed up the system. And they do appear to be designed to do just that—by making it possible for appellate judges to rule against asylum-seekers en masse, without ever giving them individual hearings.
Earlier this month, Donald Trump declared that “Congress has to ... get rid of the whole asylum system because it doesn’t work. And frankly, we should get rid of judges.” Now it appears that Barr is going to do the next best thing. He’s not going to get rid of individual immigration judges. He’s simply going to neuter them, so that any decisions made by those judges might as well be written on water.
Barr’s proposal picks up an idea that was first raised, then dropped, under the George W. Bush administration. It would give a 21-judge appeals court the ability to not just review cases, but issue “cursory opinions” without the need to provide explanations that ground those opinions in existing law. It would also allow small numbers of those judges—even a single judge—to make changes to immigration policy without seeking any kind of congressional approval.
The changes being engineered by Barr do more than get rid of the existing judges; they create a set of Judges, capital J, with extraordinary powers to command the system and determine how immigration into the United States really works, no matter what Congress, or the law, has to say.
When asylum-seekers finally get a chance to talk to a judge, the results are incredibly varied. Some judges—especially those appointed by Trump—have rates of denial that are over 98 percent. Other judges, sometimes even those operating in the same city as the judges who turn back all but the tiniest fraction of applications, have rates of denial under 20 percent.
It’s easy to guess at which end of this spectrum the appeals judges being put into place by Barr would fall. Of the 800,000 families currently waiting in hopes of being admitted to United States, more than 790,000 could find themselves almost instantly turned away, with nowhere to go but back into chaos and death.
The truth about asylum-seekers is that the system was not broken, until Donald Trump broke it. Over 91 percent of those given a court date and released into the United States appeared for that hearing. When they were provided with programs to assist them in meeting deadlines, that number grew to over 99 percent. The reason that the number of cases under review has surged under Trump, and that children are sitting in cages under Trump, and that families are waiting in the heat of dirty parking lots, or crammed behind razor wire beneath a bridge, is that Trump deliberately, and with malice, broke a functioning system to score political points.
And now, to solve a problem that he’s created, Trump has not only declared a national emergency, but he’s about to do what a former immigration judge described as “taking away due process and speeding people through to their deportation in some sort of assembly line substitute for justice.”
It’s not a substitute. It’s not even a poor facsimile. It’s certainly not justice.