Whining About Not Winning

According to Fox News, the American Immigration Lawyers Association (AILA) and the American Immigration Council (AIC) have filed a complaint against the Executive Office for Immigration Review, the Department of Justice sub-agency that runs the U.S. Immigration Court. The 30-page complaint alleges that the Immigration Court in El Paso, Texas, is biased against aliens and that, “noncitizens appearing in the El Paso [detention center]Court face some of the highest obstacles in the nation to due process and fair adjudication of claims for relief.”

That sounds fairly ominous. However, even a casual reading of the complaint reveals what appears to be a lot of whining by pro-illegal alien, open borders advocates. In essence, the major grievances are as follows:

  • AILA and AIC think that the El Paso Immigration Court hasn’t approved enough asylum cases.
  • Immigration Judges have interpreted evidence differently than AILA and AIC would have.
  • The Immigration Court in El Paso hasn’t allowed attorneys to appear via telephone at preliminary hearings.

Let’s take examine each of these allegations individually:

It’s not surprising that AILA and AIC think the El Paso Immigration Court should approve more asylum claims. AILA is the national trade association for immigration defense lawyers. AIC is an AILA-funded advocacy group whose main role is to sue the U.S. government in furtherance of AILA’s interests. Both organizations have a distinctly anti-immigration-enforcement agenda. Both also have habit of grossly overstating the due process obligations owed to immigration violators.

There’s also a completely valid reason why immigration judges may have denied asylum claims and interpreted evidence differently than the attorneys representing aliens – the asylum claims weren’t valid and the evidence offered in support of them wasn’t persuasive. The American public pays immigration judges to apply the law to the facts in complex cases and exercise their legal judgment – that’s why we call them judges. The mere fact that the judges disagree with lawyers for the immigration lawbreakers appearing in front of them doesn’t mean that their judicial decisions are invalid.

Immigration judges may permit preliminary hearings to be conducted by video or telephone. But they are not obligated to do so. Because telephone hearings can create grounds for the reversal of decisions (e.g., the alien wasn’t able to communicate privately with counsel, the telephone transmission wasn’t clear, the lawyer misunderstood the judge, etc.) many immigration judges find them counterproductive and require litigants to appear in person.

Aliens in deportation proceedings should be given whatever process they are due under the law. But AILA, AIC, the American Civil Liberties Union and other similarly-minded organizations have been pushing the narrative that immigration violators are constantly being denied due process because they don’t get a jury trial in front of a judicial court. But that’s nonsense.

The Supreme Court has already said that aliens in removal proceedings aren’t entitled to a full blown trial. As it stated in Fong Yue Ting v. United States, a deportation hearing “is in no proper sense a trial and sentence for a crime or offense.” Rather, “it is simply the ascertainment, by appropriate and lawful means” of whether a particular alien should be allowed to remain in the United States.

The Department of Justice has an obligation to take legitimate complaints about the operation of the Immigration Court seriously. However, it is under no obligation to cater to the whims of groups that advocate on behalf of lawbreakers in the midst of the biggest border crisis since the Mariel Boatlift.

About Author


Matthew J. O’Brien joined the Federation for American Immigration Reform (FAIR) in 2016. Matt is responsible for managing FAIR’s research activities. He also writes content for FAIR’s website and publications. Over the past twenty years he has held a wide variety of positions focusing on immigration issues, both in government and in the private sector. Immediately prior to joining FAIR Matt served as the Chief of the National Security Division (NSD) within the Fraud Detection and National Security Directorate (FDNS) at U.S. Citizenship and Immigration Services (USCIS), where he was responsible for formulating and implementing procedures to protect the legal immigration system from terrorists, foreign intelligence operatives, and other national security threats. He has also held positions as the Chief of the FDNS Policy and Program Development Unit, as the Chief of the FDNS EB-5 Division, as Assistant Chief Counsel with U.S. Immigration & Customs Enforcement, as a Senior Advisor to the Citizenship and Immigration Services Ombudsman, and as a District Adjudications Officer with the legacy Immigration & Naturalization Service. In addition, Matt has extensive experience as a private bar attorney. He holds a Bachelor of Arts in French from the Johns Hopkins University and a Juris Doctor from the University of Maine School of Law.


  1. avatar

    I Haven’t Seen the Numbers Compared to Farm Trade

    But I’d assume that Toyotas, Fords, etc…assembled in Mexico with “Looming” Trump Tarriffs Makes Closing the Border Over Farm Trade Look Like a Joke in Comparison….also, if Mexico stops the flow of illegal aliens will stop the Tariffs…no one year delay?

    The news changes daily on this topic, it hinges on stopping the IA flow…we’ll know more tonight. Also, when are the Open Border Party (OBP) going to do something about the immigration crisis? Blame Trump, but the OBP peddles heroine in comparison…

    Leland, Trump is not perfect, but anyone besides Trump will be FAR worse because they aren’t a billionaire who doesn’t fear harassment legal litigations/investigations witch hunts and such ruining their lives….the others become NWO puppets… remember Bush?

    • avatar

      Whatever he’s doing he’s at a minimum sending a very mixed message. Telling someone their behavior needs to change in a year means another year of them doing the same thing. When playing poker you don’t tell the other guy what you have in your hand. If he does what he promises then great but this is not the way to handle the problem. For sure the headlines in Central America are saying Trump not closing border. A lot of things are not his fault and beyond his control, like the courts, but this one is not.

      • avatar

        He’s No Village Idiot Immigration/Politician Attorney Leland, He’s a Savvy Businessman

        And he doesn’t play poker by rigged “pre-assigned” rules.

        I wouldn’t want to play chess against his higher IQ and I’m a nuclear engineer with a high IQ too…

        • avatar

          He’s a hundred times better than Hillary or any Democrat on immigration, but he doesn’t get a blank check. It’s not good strategy to let the other side think they can continue as usual for a year.

  2. avatar

    Trump now saying that he will put tariffs on imports of cars from Mexico if they don’t crack down on cross border drug trafficking “within a year”. Gee, why not just threaten to hit them with a wet noodle. A year? They could stop it in a week but the country is run by the cartels. It’s understandable that he had to give in on the budget standoff in the end , but he has real authority to declare an emergency and seal the border. It’s either listen to his base that put him in office or keep listening to the corporate flacks who don’t want a shutdown because it may cost them some dollars. The same old same old, business runs our immigration policy. Maybe it’s time to start thinking about a candidate like House representative Jim Jordan in 2020. Loyalty has to be a two way street.

  3. avatar

    The 30-page complaint alleges that the Immigration Court in El Paso, Texas, is biased against aliens and that, “noncitizens appearing in the El Paso [detention center]Court face some of the highest obstacles in the nation to due process and fair adjudication of claims for relief.”

    Are you kidding?