Op-Ed: Another Second-Class Citizen

You wouldn’t know it from most press accounts, but by far the longest section of the Justice Department’s July 28 inspector general report details misconduct in the hiring of immigration judges. News coverage has focused on crass political distortions in the hiring of prosecutors at Main Justice, while rushing by an equally important story: how Justice has degraded the system for deciding immigration cases.

Monica Goodling’s partisan violations were not the first means to this baleful end. The degradation of immigration adjudication actually started earlier, through a wholly different mechanism, in 2002.

To be sure, debasing the process was never the primary intent, but it was a highly predictable, and therefore blameworthy, outcome. Under two attorneys general, John Ashcroft and Alberto Gonzales, the harm derived from assigning serious business to eager amateurs focused on politics who either did not understand or did not value the mission of the Executive Office for Immigration Review.

The EOIR, a unit within Justice, includes both the trial-level immigration judges and the Board of Immigration Appeals. By law, all immigration judges and BIA members hold career positions for which political affiliation is not to be taken into account in hiring or other personnel actions.

Nonetheless, from late 2003 until 2007, in a process driven by D. Kyle Sampson—first as counselor to Ashcroft and later as chief of staff to Gonzales—immigration judge slots were reserved for people deemed good Republicans. These individuals were usually referred to Justice by the White House or members of Congress.

Was this an effort to dictate a particular outcome in immigration cases? Maybe to pack the court with judges who would always give the government’s deportation arguments every benefit of the doubt?

ASHCROFT’S BIG IDEA

You could forgive the immigration bar if it made such an assumption, given what Ashcroft had done to the BIA in 2002 and 2003, through a series of regulations and personnel moves widely criticized for undercutting the board’s independence. (This episode may even merit its own inspector general investigation but, to my knowledge, none has been requested.)
Read on.