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Judge Vetting Still Stings Migrants

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The New York Times

Published: August 24, 2008

WASHINGTON - Immigrants seeking asylum in the United States have been disproportionately rejected by judges whom the Bush administration chose using a conservative political litmus test, according to an analysis of Justice Department data.

The analysis suggests that the effects of a patronage-style selection process for immigration judges - used for three years before it was abandoned as illegal - are still being felt by scores of immigrants whose fates are determined by the judges installed in that period.

The study focuses on 16 judges who were vetted for political affiliation before being hired and have since ruled on at least 100 cases each.

Comparison of their records to others in the same cities shows that as a group they ruled against asylum-seekers significantly more often than colleagues who were appointed, as the law requires, under politically neutral rules.

Critics of the politicization of the immigration bench say it is not enough that in 2007 the department stopped using illegal hiring procedures. The fact that many of the politically selected judges remain in power, they say, continues to undermine the perceived fairness of hearings for immigrants fighting deportation.

The immigration court "is now the seat of individuals who were appointed illegally, and that means that in the minds of many people the court symbolizes illegality," said Bruce Einhorn, a Pepperdine University law professor who was an immigration judge from 1990 until he retired last year.

Peter A. Carr, a Justice Department spokesman, wrote in an e-mailed response to questions, "The fact that the process was flawed does not mean that the immigration judges selected through that process are unfit to serve."

The Bush administration has been accused by Democrats and other critics of improperly bringing politics into the business of federal agencies, such as the Environmental Protection Agency, the General Services Administration and, most notably, the Justice Department, which has been reeling under accusations that officials sought to politicize the apparatus of law enforcement.

This summer, the department's inspector general released two reports confirming that for several years administration officials illegally took political affiliation into account when hiring recent law school graduates, summer associates, some assistant prosecutors and immigration judges.

The report covering the selection of immigration judges primarily blamed Kyle Sampson, a former top aide to the attorney general, and two former White House liaisons to the department, Monica M. Goodling and Jan Williams, for the practice.

The Justice Department employs more than 200 immigration judges in more than 50 courts across the country. They conduct hearings for noncitizens asking not to be deported, including asylum-seekers who say they fear religious or political persecution.

Although called "judges," the hearing examiners are not confirmed by the Senate for life. They are covered by federal civil-service laws, which stipulate that they must be hired on the basis of merit under politically neutral criteria. But in early 2004, political appointees took control of hiring the judges away from career professionals and essentially began treating the positions - which carry salaries of $104,300 to $158,500 - as patronage jobs.

CHANGES PROPOSED

The Bush administration has quietly proposed an overhaul of the discipline process that aims to crack down on abusive and incompetent lawyers practicing before the nation's immigration courts.

The proposed changes would set new minimum standards of conduct for the attorneys and give greater power to judges to punish wrongdoers. The changes are part of a broader overhaul of the immigration court system being sought by the Justice Department that until now has focused principally on judges.

The rules would replace a system that has long deferred to state bar regulators in setting professional discipline. The immigration review office has taken action against nearly 400 immigration lawyers since 2000, but most of those actions piggybacked on moves by state regulators. Critics say the process has been time-consuming and has failed to protect clients from abuses.

Los Angeles Times

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