Attorney General Axes BIA members in February 2002 -- Rejecting EOIR "independence" farce

By Juan Mann

One plan is the right direction . The other is the wrong direction. It's as simple as that.

The self-serving plan by the bureaucrats of the Executive Office for Immigration Review (EOIR) to elevate themselves to greater so-called “independence” in hearing the country’s immigration cases is simply wrong. The plan by the Bush administration to scale back and streamline the laughable delay of the EOIR’s appellate body, the Board of Immigration Appeals (BIA), is a step in the right direction. Someone in the Bush administration apparently knows the truth about the EOIR -- that it's part of the problem, not part of the solution for better immigration law enforcement.

The recent “report” by a federal employee union, the National Association of Immigration Judges, calling for the EOIR to be taken out of the review of the Department of Justice does nothing but serve the interests of the EOIR’s own bureaucratic empire. This power grab would do nothing to streamline the process of deporting illegal aliens and criminal alien residents from the United States. It would only add to the needless delay of the already broken Immigration Court system and its perpetual appellate review. An excellent article by Los Angeles attorney Carl Pearlston exposed the naked opportunism of the immigration judges and their union lobbyists in working to shape immigration policy.

Under the Immigration and Nationality Act, the Attorney General is delegated the task of enforcing the immigration laws of the United States passed by Congress and signed by the President. The Attorney General's authority in immigration enforcement is split between two agencies of the Department of Justice, namely the Immigration and Naturalization Service (INS) and the EOIR, creating a bureaucratic tug-of-war of overlapping roles. But basically, the INS catches the aliens (both illegal aliens and criminal alien residents) and the EOIR makes the rulings in Immigration Court on whether they should actually be detained and/or removed from the United States. From the alien's perspective, the goal in Immigration Court is just getting out of INS custody in order to disappear back into the United States. It's as simple as that.

Since interior enforcement in the United States is so lax, an alien ordered deported on paper will most likely never leave the country. The EOIR's process of endless hearings and appeals allows aliens and their immigration attorneys to play the system like a cheap fiddle. The immigration bar knows how to get their clients out of INS detention and prolong the stay of criminal aliens in the United States who have no business being here at all. The foreign nationals who are charged in Immigration Court proceedings are either in the country illegally, or are here under legal status that has been forfeited under the law for engaging in criminal activity. They either should be removed for their crimes, or because they are not entitled to be here. These are not difficult concepts, contrary to what immigration trial lawyers would have you believe.

The recent Bush plan to streamline the EOIR's appellate body by regulation is a positive move in the right direction. Someone in the Bush administration should be applauded for recognizing that the EOIR bureaucracy should be on the road to being disbanded rather than expanded. As I have been saying since October, 2001, on my web site, as long as aliens are allowed to "reserve appeal" of Immigration Court rulings, the system will remain as a lawyer's game of bureaucratic busy-work, where insiders know that "it's never over until the alien wins."

The thought of the EOIR becoming an "independent agency" would be laughable were it not so sinister. Since few people have ever even heard about the Immigration Court system, let alone know the truth about it, there's no time for laughter. Expanding the EOIR is a dangerous idea. A recent spoon-fed editorial in the LA Times calling for EOIR "independence" is chapter and verse from the mouth of pro-alien immigration trial lawyers and the immigration judges' labor union. Elevating the EOIR serves only to further the unnecessary formalism and bureaucratic delay of the system, where aliens "win" just by being in the system. The immigration judges' plan is yet another "full-employment act" for immigration trial lawyers, the members of the powerful pro-alien "American Immigration Lawyers Association" (AILA), who would like nothing better than to use the LA Times' so-called "shield for Immigration Court" to "shield" their clients from deportation.

There is a kernel of truth buried deep in the original story by Lisa Getter in the LA Times (Immigration Judges Call for Independent Court -- 1/31/02). The quote attributed to House Judiciary Committee spokesman Jeff Lungren says it all. Lungren noted that "some members [of Congress] think the judges need more accountability, not more independence."

Amen, Mr. Lungren! You have spoken the truth. Listen up, Congress -- for the good of the country, the EOIR should be abolished with its functions parceled out to a law enforcement agency that can do the job of removing illegal aliens and criminal alien residents from our shores. To accomplish this goal, the EOIR needs to be disbanded rather than expanded. Expanding the EOIR is an unnecessary waste of tax dollars that could be better directed toward actual immigration law enforcement. This is a simple question of resources. The EOIR hearing process is a waste of tax money!

While there has been a lot of talk lately about using 9/11/01 as a "pretext" to serve one's own ends, the immigration judges' "independence" plan is one of the more blatant examples. For the good of the country, the EOIR and its bureaucratic busy-work system of hearings and appeals should be abolished rather than exalted. The country would be much better off for it, if only as a first step on the road toward finally getting America's illegal immigration and criminal alien problem under control. EOIR "independence" is just another sorry example of federal government employees on a quest for power.

The immigration judges' labor union paints a false picture of the power relationship between the INS and their beloved EOIR. The truth is that the EOIR is advancing in power with the same intensity that the INS is giving its power away! The INS already is in retreat from the EOIR by not using all of its statutory authority to deport aliens to the fullest extent (i.e. "administrative removals" and Section 235(b) removals). Alien deportation hearings need to be streamlined, with as many cases as possible kept away from the redundancy and formalism of the Immigration Court bureaucracy. The EOIR's rush to formalism in the hearing process is already out of control, creating a bureaucretic morass where alien cases are held in orbit indefinitely through an endless appellate process. And with all of the relief from removal available for aliens in Immigration Court, the "removal proceedings" have become "get to stay" proceedings.

The immigration judges and their labor union would have you believe that the poor little EOIR is the victim of "undue influence" by the INS. They use the example of a defeat of the EOIR's proposed plan to put an extensive sanctions power in the hands of all of its immigration judges, to be wielded against the private immigration bar as well as the Department of Justice attorneys who represent the INS in Immigration Court. Fortunately, the plan was defeated.

The sanctions proposal that former INS General Counsel David Martin (and others) took a stand against was extremely draconian, with sanctions powers far beyond that of the real federal courts. The plan would have absolutely crushed the will of the already demoralized corps of INS attorneys who have to appear daily before the mini-potentates of the EOIR. The EOIR sanctions plan would have Justice Department government lawyers in robes sanctioning other Justice Department government lawyers with monetary damages for vague and undefined offenses. Nevertheless, both the immigration judges and the INS attorneys already are supervised by the Attorney General. They both have to answer to all Justice Department ethics rules as well as to the Office of Professional Responsibility. Thankfully someone in the administration also recognized the EOIR "attorney sanctions" push as a shamless quest for power.

Stopping the draconian sanctions plan was the only time the INS has taken a stand against the constant advance of the arrogant EOIR. This stand was unique, given a look at who the players were in the battle. The INS Office of the General Counsel is heavily populated at its management levels with government lawyers yearning for greener pastures at the EOIR and the BIA. Many plan their escape to the ascendant EOIR to join their former INS colleagues. INS lawyers working in downtown Washington, D.C., can't wait to get a high-paying job as an immigration judge in sunny California or with the BIA in Falls Church, Viginia. A job with the EOIR may be their only escape from the poorly-managed INS. The EOIR has little to fear from the Office of the INS General Counsel or INS management, since they are the EOIR's main applicant pool!

Unfortunately, few people within the government are willing to speak the truth about the crushing bureaucracy of the EOIR. Hopefully INS attorneys, INS officers and others familiar with the Immigration Court system will stand up and be counted. The American people deserve to know what is going on in their government, so that the perception of the EOIR and the Immigration Court system is not unduly influenced by self-serving immigration judges, their labor union, the private immigration bar and their many lobbyists.

Juan Mann is the proprietor of DeportAliens.com, the only immigration reform web site that exposes the bureaucracy of the EOIR. He dedicates his work to the principle that one man's opinion can make a difference.