A few days ago, CNN Politics published a piece, "Immigration judges quit in response to administration policies", citing a number of immigration judges (IJs) who have either retired or resigned recently and went on the record to discuss their reasons for doing so.
I found the article interesting not least because I know and worked with a few of the individuals quoted.
The tenor of the article (not a surprise, being a CNN product) is to suggest that all of the resignations/retirements may be laid at the doorstop of the Trump administration and its attorneys general (AGs), primarily Jeff Sessions and William Barr, for "politicizing" the job of IJs and rendering their professional lives too stressful to be worth maintaining.
There is also reference to unacknowledged litmus tests in the hiring of IJs; to new policies governing how IJs go about handling their caseloads to ensure a modicum of productivity; and to cases that these AGs have certified to themselves that now bind how the IJs render decisions in response to certain circumstances and conditions, such as rejecting domestic violence as a predicate for claiming asylum.
The problem, of course, is that reality is much more nuanced than the depiction that the journalist wishes to leave us with.
Being an IJ has always been a high-pressure job. Deciding the lives of individuals in the context of removal and asylum cases on a day-in, day-out basis can wear on the soul over the long term. That's why there has always been notable turnover in the ranks of the IJ corps, but this has become even more true with the staggering caseloads that have developed (well over a million cases are backlogged in the immigration courts right now).
Yet the size of the backlog can hardly be attributed to Trump, Sessions, Barr, or indeed any official of this administration. They didn't instigate the mad rush for the border by "unaccompanied" minors — many of whom were, and are, smuggled at the behest of parents already in the United States illegally, and many of whom were in their late teens, not the infants the American public was encouraged to mentally envision.
Nor were they responsible for the similar surge of the hundreds of thousands of partial family units that marched northward from Central America, sometimes in caravans of thousands, which began in or around 2014 and escalated to become a tidal wave. The phenomenon can be laid directly at the doorstep of the lax policies of the Obama administration, which did little or nothing even as the size swelled. Indeed it seems clear that many of the Trump administration's policies have been reactive in nature, developed in a desperate effort to finally try to stem the massive influx.
Touching on another accusation: One has to be deeply amused at the implication that there is something untoward about unofficial litmus tests being applied to IJ applicants. Of course there are, and have always been. Does anyone really think that the Obama administration — whose chief immigration architect was Cecilia Muñoz, domestic policy advisor to the president and former senior official of La Raza, an open-borders advocacy group (see here and here ) — did not put its thumb on the scales where selection of IJs (and, for that matter, asylum corps officers) was concerned? If you believe such a thing, then you, sir or madam, are a hopeless naïf.
Nor, in fairness, was the Obama White House the first to go down that path. It was an unspoken given during the Clinton and Bush administrations as well. One of the prerogatives of winning an election is the right to select personnel, both political appointees and permanent civil servants, whose views are consistent with your own. The most clever administrations, and I certainly count the Obama White House among them, actually focus on leaving behind a cadre of permanent staff because they know that political appointees come and go, but changing the bureaucracy in a way that outlasts your term of office means carefully choosing the bureaucrats, IJs among them, to ensure a philosophical affinity toward your own views.
I will not go into depth about my views on the propriety, indeed the necessity, of reforming the IJ corps because I've already made known my affinity for those steps (see here and here), as has my colleague former immigration judge Art Arthur. I will simply note that it does not seem to me that the core adjudicatory function of IJs, as a group, is in any way impinged by introducing ways to ensure efficiency and accountability, including measures to determine whether individual judges are profligate in granting multiple continuances or adjournments. As a taxpayer, I fervently hope such measures are in place.
Nor will I dig too deeply into the question of whether an attorney general invoking his certification power to review IJ decisions is somehow abusive to the "judicial independence" of the immigration judge corps. Insofar as the attorney general is ultimately responsible for decisions made in his name by IJs — since they function under his delegated authority — he would be remiss if he did not from time to time exercise his oversight powers to redirect decisions when he has a basis to believe that they've deviated from an appropriate standard in applying the immigration laws.
In sum, it should not be a surprise that with such an increased emphasis on enforcement and a tightening of policies, decision-making, and oversight, that some number of IJs whose philosophical affinities are at sharp variance with the Trump administration's would opt to go back into private practice, rejoin the migrant advocacy groups that they came from, or find some other form of employment. I dare say, in fact, that this is also a likelihood among certain members of the asylum corps as well. The job they are now asked to do is different from the one that they signed up for in prior, much more liberal, presidential administrations, both Democratic and Republican, and they are being supervised much more carefully.
For a journalist to find disaffected IJs, as CNN did, and interview them in order to arrive at a conclusion that the author almost certainly began with, i.e. that something is amiss, would never be difficult under such circumstances. It would inevitably be more like the proverbial "catching fish in a barrel" exercise, and so in the end it proves nothing.