Due Process Gone Wild Yet Again: The Immigration Courts

Attorney General Jeff Sessions has recently come under criticism for attempting to exercise what has been characterized as too much influence over the U.S. Immigration Court. A recent piece on CNN’s website describes Sessions as exerting a “unique authority over the immigration courts” and implies that actions he has taken to streamline immigration proceedings and ensure consistency in the decisions of the Immigration Court are somehow undermining due process for aliens. However, that is far from the case, and the bulk of the criticism leveled against the AG seems to be based on a misunderstanding of the role of immigration judges and how the immigration courts are supposed to work.

The U.S. Immigration Court isn’t a judicial court under Article III of the Constitution. It’s an administrative court. Administrative courts function as a check on actions by administrative agencies. They do so by providing a court-like environment where the parties affected by a government decision can present evidence of their claims to an administrative judge who is supposed to be an expert in the law and policies of the agency by whom he/she is employed. This ensures that executive branch decisions are correct and consistent and helps narrow any legal issues that might later need to be reviewed by a judicial court.

The function and powers of administrative judges differ significantly from those of their judicial branch counterparts. Administrative judges interpret and apply a specific set of laws but they don’t have the authority to declare those laws unconstitutional.  And their decisions are subject to review and confirmation by other executive branch officials within the agency that employs them. In addition, once their decisions have been reviewed internally, they’re subject to review by Article III judicial courts. This has always been the case. If anything, prior administrations have allowed the immigration courts too much free rein, enabling immigration judges to engage in judicial activism.

Accordingly, the mainstream media’s characterization of the Trump administration’s efforts to restore a measure of order to the troubled operations of the immigration courts are both misleading and inaccurate. Deportation hearings were never intended to be long, drawn-out affairs. They are a limited-purpose enquiry, designed to ensure that an alien receives basic, procedural due process before his removal, nothing more.

In a properly conducted proceeding, the government establishes alienage and removability, the alien is given an opportunity to try and demonstrate that he/she has some legitimate claim to remain in the U.S., and that’s all. There’s no need for anything resembling the Scopes Monkey Trial. And claims that the current administration’s desire to see immigration proceedings conducted in a manner consistent with the interests of the American people is somehow resulting in a “degradation of due process” are simply false.