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Matt Katz: I'm Matt Katz in for Tanzina Vega, and you're listening to The Takeaway. We begin today with a look at immigration policy in the courts. Under the Trump Administration, the Department of Justice and the Department of Homeland Security put in place policy after policy, more than any prior administration that affected migrants and asylum-seekers in monumental ways. Those responsible for following these policies are immigration judges. They decide whether or not an immigrant should be deported, or an asylum-seeker should be allowed to stay in the US.

Although President Biden and his administration have vowed to change the way the US carries out immigration policy, immigration advocates are frustrated that his approach on the courts is more of the same. Out of 17 immigration judges newly hired by the Biden administration, four of them had been chosen by the Trump administration. The majority have law enforcement backgrounds, but little to no experience with migrants or asylum-seekers. Further complicating things is the peculiar way immigration courts function in the US.

Tal Kopan: It never fails to hit me how much the American public doesn't understand the way that these courts are different from what we typically think of like law and order, whatever pop culture imagination of the courts there might be.

Matt Katz: That's Tal Kopan, Washington Correspondent for the San Francisco Chronicle. We sat down to talk about how unusual this system is.

Tal Kopan: These courts, although they use all this sort of language, of course, they're run by the Department of Justice and the Attorney General of the United States, who is the nation's top prosecutor. The judges in this system of the immigration courts are actually employees of the Department of Justice, who are hired and could be fired, ultimately, by the Attorney General. There are many other ways in which, structurally, the Attorney General and the Justice Department have a lot of control and influence over this court system.

Although, as conceived, it is set up to be a form of due process and justice, the very structure of it, some would say undermines the notion that it could ever be this typical court system we think of when we imagine the word court.

Matt Katz: There were many immigration policy changes as we know made during the Trump administration, and then immigration judges ultimately had to rule on them specifically in deciding what applicant qualifies for asylum. Do those decisions continue to have precedent today?

Tal Kopan: Some of them do, is the simple answer. Again, getting into the structure, the immigration courts are set up with immigration judges. There are nearly 70 courts across the country, hundreds of immigration judges. Those, let's think of as a District Court level. Those are the first level of court. Then there's what's called the Board of Immigration Appeals. Once again, those are employees of the Justice Department. Again, to use a layman term, appellate judges of the system. The Board of Immigration Appeals is the next stop. If an immigrant wants to appeal their case, it goes there.

The Board of Immigration Appeals sometimes just makes individual rulings. It does have the ability to set precedent. It's called a published opinion. That's when the BIA, as it's called, sets a precedent across the immigration court systems. In this system, the Supreme Court of the immigration courts, so to speak, is the Attorney General. The Attorney General may refer to him or herself a decision from the Board of Immigration Appeals and make a ruling.

What under the Trump administration happened, was starting with Jeff Sessions and carried on by William Barr. They handpicked areas of case law that they wanted to essentially change and referred it to themselves, and then made a ruling. There are other less well-known things that happened through this process that limited a judge's ability to administratively close a case because they just have discretion to say, "You know what? It's not in the United States' interest to use up all our resources to go after this immigrant. I'm just going to close this case and let it go." To postpone cases, so there are all kinds of things that tie judge's hands and that immigration advocates, and in some cases, the union that represents immigration judges themselves, have spoken out against and say, "This stacks the car against immigrants, these changes are not fair." That's the range of ways we're talking about the Trump administration really affected the structure and outcomes of the immigration court.

Matt Katz: The Biden administration confirmed 17 new immigration judges so far. Many were critical of the folks at his administration tab, but mostly about the fact that four of those judges, had first been proposed by the Trump administration. Extensively, these two administrations have very different views on immigration and immigration law. Why did Biden appoint Trump people to the bench?

Tal Kopan: Politics aren't supposed to be part of these courts. The thing is, about these judges being employees of the Justice Department, at the same time that they are structurally answerable to a political appointee, they're actually protected by the same laws that protect other career government employees from politics. Theoretically, politics is not supposed to be a factor in immigration judges' hiring. They're supposed to only be hired on their qualifications.

Some have questioned whether the Trump administration actually followed that, but there's been no inspector general or any other investigation that conclusively proved politically influenced hiring. The Trump administration hired judges that had been vetted by the Obama administration. This is supposed to be normal. There's plenty of complaints in the advocacy community that immigration judges that are being hired, a lot of them were ICE prosecutors essentially, but that is something that happened well before Trump took office.

That's actually historically something you see in the system. A lot of immigration judges worked for ICE, that's how they know immigration law. A lot of them come from military law backgrounds as well. It's actually really uncommon to have immigration judges hired as private immigration attorneys. Certainly, if Biden says he wants to have a more welcoming, a more fair immigration posture, and so advocates have complained about not necessarily seeing it yet, but in theory, this is the way the system has always worked.

Matt Katz: Tell us about the massive backlog in this system in immigration cases. How bad is it?

Tal Kopan: [chuckles] Bad, Matt. It's bad. This is the one thing, if I had to pick one thing that the fringes of both sides of the immigration debate agree on, is that the backlog is a problem. It's well over a million cases.

Matt Katz: That's nuts.

Tal Kopan: It's nuts. Here's why it's an issue. Let's talk about, for example, the San Francisco courts, which I've covered a lot. Last year during the pandemic, courts were closing, the pandemic would close the hearing. The person involved, the immigrant involved, and it's so important to bring this back to the fact that every single one of these cases involves real human beings. They may have waited years for that hearing.

I spoke with one woman who had waited years, days before her hearing, she didn't know if it would happen because they were closing courts so haphazardly. It ended up being postponed. Court dates for those postponements came back four years later. So that was the next opening on the calendar. What happens is when you're waiting for these, and a judge in that time may leave, a new judge gets the case, they have to review the files, postpones it further. These cases can take years and years and years. In that time, legally, many of these immigrants get work permits, because the law, if you're waiting for your asylum claim to be adjudicated, the law allows you the ability to work. They have kids here, they build lives here.

This is part of what contributes to this very complicated system where many people would agree that someone doesn't necessarily deserve to be deported. Their case is very sympathetic. They've been a contributing member of their community. They have US citizen children, but the law says that they have to be deported nine years after their case first entered the system or something crazy. When we talk about a million case backlog, that's what we're talking about. Is a system that very few people think is actually serving anyone who is part of the system.

Matt Katz: You published an investigation into sexual harassment within the immigration courts. Can you tell us about what you found?

Tal Kopan: I spent months digging through documents, talking to people who experienced these incidents. What I found was that these individuals, by and large, most immigration judges are public servants trying to do the best job they can. There are more than just one-off isolated incidents that I uncovered of individuals who, in their day job, are hearing some of the most sensitive, traumatic gender-based violence cases across the world, who themselves have engaged in harassment or sexually inappropriate behavior sometimes from the bench. There are a number of examples in the piece, many with names attached. Actually, two of the people named in the piece serve on the Board of Immigration Appeals. One has been banned from the building since 2013 after an investigation was opened and found that there was harassment of staff within the Department of Justice office where the BIA sits. He still gets his six-figure government salary. He still decides cases they're just sent to his home most of the time.

Another instance was a judge who was in Atlanta for a really long time, who we have a recording of him making a joke in open court during a proceeding that references male genitalia, among other on the record accounts of his behavior. He was promoted to the Board of Immigration Appeals despite these decades-long in-court behaviors. What we found is that, when there are these individuals who have this problematic behavior, the structure of the courts, there's a lack of oversight, there's a lack of seriousness in terms of the way complaints are handled, a lack of transparency that has really allowed-- Sometimes, when this behavior is actually found, it's a slap on the wrist. People are transferred instead of actually dealt with, and it creates this system where this behavior has been able to flourish.

It speaks to the much larger structural issues with the way these courts are set up and typical independent courts. There's an independent body that would investigate these types of complaints on judicial conduct in the Department of Justice. It's the employees, it's the attorney general who ultimately makes the call and, it very rarely results in meaningful termination or suspension.

Matt Katz: Tal Kopan is the Washington correspondent for the San Francisco Chronicle. Tal, thank you so much for joining us.

Tal Kopan: Thank you for having me.

Matt Katz: This has a long and interesting history, one that our next guest has written a lot about. With us is Alison Peck, Professor of Law and Co-director of the Immigration Law Clinic at West Virginia University, and the author of The Accidental History of the U.S. Immigration Courts: War, Fear, and the Roots of Dysfunction. Hi there, Alison.

Alison Peck: Hi, Matt. How are you

Matt Katz: Doing well, thank you. Hope you're well as well, I'm curious, we just heard from reporter Tal Kopin about the structure of the courts. Can you tell us about your experience as an attorney representing immigrants in immigration court and some of the confusion that can take place?

Alison Peck: Sure, yes. Our clients were experiencing some really disturbing effects because of the structure of the immigration courts, which is what got me interested in writing this book about the history and how it got this way. For example, because, as the reporter mentioned, the attorney general can refer a case to himself at any time, him or herself, that happened with more frequency during the Trump administration than at any time in the past, approximately four times more frequently than even the most active previous administration.

What we were experiencing was, one of our clients, many of our clients being in the immigration court for their removal case, having a defense that we had identified was available to them, and then halfway through their court proceeding, the attorney general coming down with the rule that foreclosed, or at least purported to read the law in a way that foreclosed the relief available to that person, moving the goalpost back halfway through the game essentially, with no public input.

Matt Katz: Did this involve like attorney general intervening in a case that resulted in one of your clients getting deported?

Alison Peck: We have not yet been in a situation where we've exhausted all appeals and the client has been deported. Part of the reason for that is the delays that the reporter, the guest before me was talking about. Most of these things have been continued or they are still pending on appeal, and they do take many years to resolve. We do have clients who have had adverse rulings because of decisions that were handed down by the attorney general during the last administration.

Matt Katz: Okay. You were dealing with this issue and then you wanted to get to the root of why we have this strange system. Let's break down some of the history you write about in your book. First, before immigration courts were part of the Department of Justice, which part of the government handled immigration?

Alison Peck: Before that, they were in the Department of Labor. The reason they were there was really because nobody else wanted them essentially. Until the late 19th Century, we didn't really have restrictive immigration laws. Immigration was encouraged. You didn't need to have a government department that was handling immigration cases. That really started in the late 19th century. At first, it was mostly just a matter of inspecting the ships and making sure that everybody there was fit to come in and collecting a tax on people coming in. Originally, it was in the Department of Treasury, just to collect that tax.

That wasn't working very well. Treasury was really overburdened. It was briefly moved into the Department of Commerce and Labor which existed for a while. Then, we're in the industrial revolution, we're in the progressive era, and labor is not happy about the fact that management of labor in the same department and labor's getting short shrift. The Department of Labor gets created but this is during a time of what lawyers call the Lochner era a time when there wasn't much federal economic regulation because it was perceived by the Supreme court as being a violation of due process. Those kinds of laws were being struck down.

This Department of Labor that was created in order to appease labor, to make them feel that they had a seat in the president's cabinet, really didn't have very much to do. There wasn't really very much legislation for them to implement. Somebody got the idea, "Hey, well, a lot of immigrants become laborers. Let's put immigration in the Department of Labor because we can't figure out where else to put it." That's where it was when the new deal hit, and suddenly federal labor law becomes a real thing.

Matt Katz: Then President Roosevelt is reluctant to move the courts out of labor but then that changed and ultimately, I guess at the onset of World War II, it moved from labor to DOJ. Why did that happen?

Alison Peck: That's something that really intrigued me as I was writing this book. I really think that there's two things that he was dealing with. On the one hand, he had the immigration services in the Department of Labor at a time when he's trying to restructure federal labor law, essentially and the federal role in labor. The secretary of labor under Roosevelt was Francis Perkins, who also, I think not incidentally, was the first female cabinet member in US history. The reason I say that wasn't incidental is because I think, the fact that she was a woman made her a target for a lot of opposition. It was easy to single her out and to say that she was soft on communism, and soft on labor, or soft on immigrants because she was soft on communism.

At a time when there was a real communist scare, there was a lot of suspicion of the Department of Labor. She herself perceived a conflict because the Department of Labor had to deal with immigrants to the extent that they were representing labor in labor unions, but then they also had to enforce the immigration laws. There was an attempt to impeach Secretary Perkins that failed, but it certainly impaired her political credibility.

On the one hand, Roosevelt is dealing with this situation, which with still fragile new deal legislation, and on the other hand, he's also facing this growing Nazi threat, and an isolation that's Congress, that was suspicious of him, suspicious of his concerns. At that time, this is before the creation of the CIA. The United States effectively has no intelligence service. They had different departments of the government jealously guarding different aspects of it. The United States had perceived itself as being immune from a lot of these global political pressures prior to that because of geography, but starting in 1940 as the Nazis invaded Europe, that comfort level went away.

Matt Katz: Alison, we were just talking about how the Department of Justice got the immigration courts under their purview. What were the implications of moving immigration decisions to a law enforcement agency?

Alison Peck: Well, they were pretty serious and the Roosevelt administration knew that from the time that they did it. You mentioned earlier, Roosevelt had resisted doing it. Some members of Congress had asked him to do it for a while and he didn't want to do it. He asked two successive attorneys general, whether he should do it, and the report that came back from the Department of Justice at the time was, the answer was no. They said it's going to cause the public to create immigration with crime, and it's not. It's a civil offense. It's something that can be dealt with just as a civil matter.

Roosevelt was in this position where he was seeing Western Europe fall to the Nazis. There was a fear that there was this, what they call the fifth column, that was causing locals who were actually affiliated with the Germans in some way to get into positions of power, and then call the shots and bring down the government and let the Nazis in. It turned out it wasn't really true. It was Nazi propaganda. There was no fifth column, but Roosevelt was afraid of this. He ignored, ultimately, the warnings of his attorneys general and said, "Well, I've got to put it there, because I don't have any place that's adequate to handle it. During wartime, I want it there so that it can work hand-in-hand with the Department of Justice, work hand-in-hand with the FBI to investigate and get the courts to quickly deport people who might be spies." Really, the design of it was actually to violate the separation of powers. That was the whole point. The problem is that we still have it 80 years later.

Matt Katz: Now is there any movement to make immigration courts independent? I know the immigration judges union has stated that that's something that they would want, right?

Alison Peck: Yes. There has been a movement over the years. In the 1990s, it gained some momentum, but then 9/11 happened and people's attention shifted, and the best that could be done was to keep the immigration courts from being moved into DHS with the prosecutors. At least we have separation into two different agencies at this point, but we haven't had any movement to really create Article 1 immigration courts. We've not seen a bill.

It's Congress that could do this. It's Congress that could simply write legislation saying, "The immigration courts should not be part of a law enforcement apparatus. They should be separate," and we can create a court system like the US tax courts. We have not yet seen a bill that would accomplish that, but you're right that the immigration judges, the American Immigration Lawyers Association, Federal Bar Association, a number of organizations that either involved in immigration law or that are invested in due process in the court systems have advocated that.

Matt Katz: Like the Tax Court, so they'd be like an administrative Court almost, right?

Alison Peck: Essentially, yes.

Matt Katz: Alison Peck, Professor of Law and Co-director of the Immigration Law Clinic at West Virginia University. She is also the author of The Accidental History of the US Immigration Courts: War, Fear, and the Roots of Dysfunction. Alison, thanks so much for taking us down into the history of immigration courts. Really appreciate it.

Alison Peck: Great. Thanks for having me.

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