Recent events have created an urgent need for an independent Immigration Court separate from the Department of Justice.  On October 17, Proskauer hosted a panel discussion in its New York office co-sponsored by Sanctuary for Families, the New York Immigration Coalition, and the Federal Bar Association’s Immigration Law Section entitled, “Lives in the Balance: Eviscerating Asylum Protection for Victims of Gender Violence.”  The speakers included The Hon. Carolyn Maloney, U.S. Representative from New York’s 12th Congressional District, the Hon. Amiena Khan, Executive Vice President, National Association of Immigration Judges, Lori Adams, Director, Immigration Intervention Project at Sanctuary for Families, and Lisa Koenig, a Partner at Fragomen.

The immigration lawyers on the panel provided different perspectives on Matter of A-B, a consequential decision from last summer where the Attorney General purported to overrule Immigration Court precedent, and thereby limit the availability of domestic violence as a basis for asylum.  Aside from placing the law on asylum in flux, the AG’s action raises the important question of how a cabinet-level, executive branch official could claim the authority to reverse a court’s decision.    

The Immigration Court, in fact, defies this nation’s fundamental tradition of separation of powers and checks and balances.  The Court is housed within the Department of Justice, and immigration judges are DOJ employees hired by the Attorney General.  According to federal regulation, the Board of Immigration Appeals “shall refer to the Attorney General for review of its decision all cases . . . the Attorney General directs the Board to refer to him.”  Although the power to certify and review cases has been used sparingly in the past, Attorney General Sessions appears to be using this power with more frequency to implement the administration’s policy objectives.

The lack of adjudicative independence has severely compromised the Immigration Court’s ability to ensure due process.  These judges do not have the power to hold lawyers who appear before them in contempt, and, at the direction of the Attorney General, are restricted in granting continuances, even where parties are in the process of obtaining legal counsel.  Indeed, recently, after granting a continuance, a Philadelphia-based immigration judge was removed from a high profile case and replaced with a Virginia-based supervisor.   In response, the National Association of Immigration Judges, which is the union representing immigration judges, filed a grievance claiming the action “subverted the judicial process.”  The integrity of the Court has been further threatened by the Attorney General’s direction, as reported in the New York Times, that each judge (despite serious resource limitations) must complete 700 cases per year in order to receive a “satisfactory” performance rating.

Why is this issue so important?  The Immigration Court cannot simply serve, in the words of the American Immigration Lawyers Association, as a “cog” in the Administration’s “deportation machine.”  The Supreme Court has made clear that “the Due Process Clause applies to all ‘persons’ within the United States, including aliens, whether their presence is lawful, unlawful, temporary or permanent.”  The only effective means to ensure due process is to restructure the Immigration Court so that – like the Tax Court, for example – it can maintain its independence.  Thus, as recommended by the American Bar Association and others, immigration judges should not be selected by the Attorney General and serve under his direction and control. They should serve on an independent Court and be given adequate resources to decide cases on the merits.  (Currently there is a backlog of approximately 750,000 cases for 350 judges.)  Finally, their decisions should not be reviewed by the Attorney General but instead simply reviewed by an appellate level immigration court followed by the Federal Courts of Appeals.

An independent judiciary — especially as it relates to the life and death decisions of immigration judges — is essential to a free society.  Anything less not only compromises basic fairness in individual cases but undermines public confidence in our institutions and threatens the rule of law.

Email this postTweet this postLike this postShare this post on LinkedIn
Photo of William C. Silverman William C. Silverman

William C. Silverman is a partner responsible for leading Proskauer’s global pro bono efforts, which provide assistance to individual clients and nonprofit organizations in litigation as well as transactional matters. He focuses on identifying and securing pro bono opportunities and partnerships for Proskauer…

William C. Silverman is a partner responsible for leading Proskauer’s global pro bono efforts, which provide assistance to individual clients and nonprofit organizations in litigation as well as transactional matters. He focuses on identifying and securing pro bono opportunities and partnerships for Proskauer lawyers and ensuring widespread participation in these projects.

Bill has robust private and public sector experience and a strong criminal and civil background. He has worked extensively on government investigations and white collar criminal matters, as well as complex civil litigation in federal and state courts. He also served as an assistant U.S. attorney in the Southern District of New York, where he led criminal investigations, conducted trials and handled Second Circuit appeals.

Throughout his career, Bill has dedicated himself to the promotion of equal access to justice through pro bono service, particularly in the area of family court, anti-trafficking, and immigration.

Bill spearheaded a partnership among several law firms, corporations and the New York City Family Court to provide free legal advice to pro se litigants. The New York City Family Court Volunteer Attorney Program now has more than 400 volunteer attorneys from 40 major firms and corporations. Bill also helped build a coalition of organizations in a successful effort to secure additional Family Court judges in New York. He is now part of an effort spearheaded by Chief Judge Janet DiFiore to simplify the New York Court System from 11 trial courts to three.

Bill serves as counsel to the New York State Anti-Trafficking Coalition. In that capacity he has been a strong advocate for changes in the law and public policy to protect victims of human trafficking and bring perpetrators to justice. He also represents individual clients in this area, including a successful federal lawsuit brought on behalf of a trafficking victim against her traffickers. For his work, he was named by domestic violence nonprofit Sanctuary For Families as one of “New York’s New Abolitionists.”

Bill has spoken at numerous conferences and events, including New York Chief Judge Jonathan Lippman’s Hearings on Civil Legal Services and the American Bar Association’s Equal Justice Conference. In 2014, he attended a meeting at the White House with Vice President Joe Biden and other policymakers on the need for access to legal services in immigration proceedings.

Bill has been recognized for his public service with the Abely Pro Bono Leadership Award from Sanctuary For Families and Columbia Law School (2019); the Special Leadership Award for All-Around Excellence in Corporate Social Responsibility & the Law from City & State Reports (2015); the Commitment to Justice Award for Outstanding Partner from inMotion (2008); and the Matthew G. Leonard Award for Outstanding Pro Bono Achievement from MFY Legal Services (2007).

Outside of his work at the firm, Bill serves on various committees and non-profit boards. Bill is currently chairman of the Fund for Modern Courts, a non-partisan citizen organization devoted to improving New York State courts, and is formerly chairman of Legal Information For Families Today (LIFT), an organization devoted to unrepresented litigants in Family Court.