Protesting Immigration Judges Have It All Wrong



According to the Los Angeles Times, Immigration Judge (IJ) Charles Honeyman recently retired after 24 years on the bench because he didn’t like the Trump administration’s directives on how immigration law should be applied in court. In fact, the Times claims, “He continued to grant asylum to victims of domestic violence even after the Justice Department said that was not a valid reason to.” And it says that, “Dozens of other judges concerned about their independence have done the same, according to the union that represents them and interviews with several who left.” But the group of IJs being portrayed as heroes for standing up to a xenophobic president are rebels without a clue, not champions of the underdog.

To begin with, both the Times and the IJs who have resigned or retired because they disagree with President Trump are grossly mischaracterizing the nature of “judicial independence.” We have judges because it’s impossible to write laws that will cover every permutation of a particular circumstance that life can throw at us. If we attempted to rewrite our laws every time an unforeseen variation of a common event cropped up, transgressors would go unpunished and the vulnerable would go unprotected. Instead, we employ learned men and women, familiar with the law, to apply it in a consistent and rational fashion.

Because we expect them to be discerning individuals who exercise judgment (hence the reason why we call them “judges”), the men and women we entrust with the interpretation of our statutes are free to make reasoned decisions within the ambit of the rules they are responsible for applying. They are not, however, free to decide any and all disputes that come before them according to the dictates of their own consciences. Contrary to popular opinion, judges aren’t all-purpose referees, responsible for resolving all of society’s disputes in Solomonic fashion. Rather, they are charged with applying the laws drafted by Congress, as written, and in accord with Congress’ intent.

The IJs currently protesting about the nature of their work under the Trump administration are the exception that proves the rule. Rather than applying the Immigration and Nationality Act in a fashion consistent with Congress’ stated reasons for passing it, these judges attempted to apply immigration law in a manner harmonious with their personal migration policy goals. (A tendency that has also recently afflicted Asylum Officers at U.S. Citizenship and Immigration Services.)

The Department of Justice directed the Immigration Court to stop granting political asylum to victims of domestic violence because nowhere in the relevant statutes does it say that victims of common crime are eligible for political asylum. Congress made asylum and refugee protections available solely to people suffering political persecution, at the hands of their government, on the basis of race, religion, nationality or membership in a particular social group. In reality, it was IJs who – grossly exceeding their authority – started handing out asylum protections to people who had been victimized by criminals but hadn’t suffered any type of political persecution. So, when IJs continue to apply the law improperly, they aren’t standing up for immigrants. They are simply failing to do their jobs correctly.

In effect, the LA Times is criticizing the Trump administration for applying the law the way Congress wrote it – which is by any objective legal and moral standard the right thing to do. Meanwhile, IJs who have substituted their subjective opinions for the law – which is a gross violation of judicial ethics – are being praised as legal folk heroes. What’s even worse is that the LA Times is so overtly anti-Trump it can’t even see obvious flaws in its tortured logic.

About Author

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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.

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