Are immigration judges cooperating with ICE to ramp up deportations? What to know
ICE officers have been staking out immigration courts in Phoenix and other cities and arresting dozens of immigrants, some accompanied by children, and then hauling them away in unmarked white vans.
The unprecedented arrests, which began in May, have raised concerns that immigration judges are improperly cooperating with ICE to arrest immigrants as part of a mass deportation agenda that includes asylum-seekers who arrived during the previous Biden administration.
"We are hearing reports of a disturbing number of judges that are cooperating with ICE instead of doing their job to be independent adjudicators," said Ben Johnson, executive director of the American Immigration Lawyers Association. The advocacy group is made up of 16,000 immigration lawyers and law professors.
Immigration and Customs Enforcement has been arresting asylum-seekers as they leave immigration courts. The Trump administration says it is trying to deport some of the millions of people who should not have been allowed into the country under the Biden administration and qualify for swift deportations.
The arrests often happen moments after immigration judges dismiss deportation cases at the request of Department of Homeland Security attorneys.
Some judges appear to have received information from DHS lawyers beforehand listing which deportation cases they plan to ask be dismissed, Johnson said. The information is ex parte, meaning the same information is not shared as legally required with immigration lawyers or with immigrants who don't have lawyers, Johnson said.
"If the judge knows what's going to happen in the case and the other attorney doesn't, then it's not an equal playing field," Johnson said.
Immigration judges are not wholly independent, Johnson pointed out. They work for the Executive Office for Immigration Review, part of the Department of Justice. The Department of Justice and the Department of Homeland Security are both part of the executive branch.
Many immigration judges are relatively new to the bench and have little experience. Still, one long-serving retired immigration judge who spoke to The Arizona Republic disputed any allegations or suggestions of collusion between the judges and ICE.
A request by DHS lawyers to dismiss a case is usually "good news" for the immigrant, Johnson said. It means DHS has decided not to pursue deportation because the case is a low priority, Johnson said.
But as the Trump administration has been attempting to ramp up mass deportations, DHS lawyers have been asking immigration judges to dismiss cases so that immigrants can be arrested as they leave the courtroom so they can be rapidly deported through a truncated process called expedited removal. Expedited removal strips access to due process and hearings in front of an immigration judge.
The Trump administration expanded the use of expedited removal to swiftly deport not just undocumented immigrants who recently crossed the border but to anyone in the country who entered within the past two years.
Some immigration judges are pushing back when DHS lawyers request a case be dismissed.
An immigration judge in Tucson, for example, refused to dismiss a case after a DHS attorney asked the case be tossed out because "circumstances have changed," said Mo Goldman, an immigration lawyer who handed the case.
"The judge said, 'Nope. Not a sufficient enough answer' and kept the case in court," Goldman said.
But others are dismissing cases after oral requests from DHS lawyers without the kind of normal scrutiny seen in the past, such as asking DHS lawyers to articulate in writing a legal reason, Johnson said.
When prompted by immigration lawyers to provide a reason, DHS lawyers have simply stated "circumstances have changed," Johnson said. Some immigration judges accept that statement without asking DHS lawyers to explain specifically what circumstances have changed, Johnson said.
"My view is that judges who are willing to change normal procedures in order to achieve an objective by ICE, who are not willing to challenge the assertions of the attorneys or require evidence to support those assertions, that is not an impartial judge," Johnson said.
Immigration judges are facing pressure by the Trump administration to cooperate with ICE out of fear of losing their jobs, Johnson said.
In February, U.S. Attorney General Pam Bondi fired without explanation about two dozen immigration judges and new hires amid a skyrocketing backlog of 4 million cases in immigration courts, Johnson pointed out.
"Good judges trying to do the right thing are threatened with termination," Johnson said. "Judges are afraid for their job and I think that causes some of them to do do the wrong thing and to not be impartial."
Arizona Republic reporters have sat through multiple immigration court hearings after the ICE arrests started.
Some asylum-seekers appear in court represented by immigration lawyers, who have been asking DHS lawyers to submit an explanation in writing when they ask for a case to be dismissed.
Other immigrants show up in court without legal representation, because immigrants are not entitled to a court-appointed lawyer if they can't afford one.
On one day, an immigration judge dismissed multiple cases involving asylum-seekers who showed up without lawyers. The asylum-seekers stated they had a fear of returning to their home country. Nevertheless, the immigration judges dismissed the cases, while informing the asylum-seekers they would have the opportunity to express fear of returning if the government sought to deport them later.
Several of the asylum-seekers, however, did not seem to fully grasp what was happening. They appeared to agree to have their cases dismissed without realizing that under the Trump administration's new policy, ICE might now try to deport them through expedited removal, possibly as soon as they leave the courtroom.
A judge on June 11 agreed not to dismiss a case against an asylum-seeker from the Democratic Republic of Congo, a civil-war torn country in Central Africa. The man is represented by Clifford Levenson, a Phoenix immigration lawyer.
A different judge, meanwhile, dismissed a case against a woman from Rwanda whom Levenson also represents. Now that woman, who is afraid to return to the civil-war torn country in East Africa, is at risk of being arrested by ICE and quickly deported through expedited removal, Levenson said.
"She is terrified," Levenson said.
The two different decisions in identical cases shows how some immigration judges appear to be more on board with the Trump administration's new dismiss and deport policy than others.
"I have not seen evidence of actual collusion between ICE and judges," Levenson said. "But that doesn't mean the judges aren't making decisions aligned with" the Trump administration's new policy to ramp up ICE arrests and deportations through expedited removal.
DHS: 'ICE is now following the law' with regard to expedited removals of immigrants
The Executive Office for Immigration Review declined to comment, said Kathryn Mattingly, a spokesperson.
The Department of Homeland Security responded to a request for comment with a written statement that did not directly address questions of whether DHS lawyers are sharing information about dismissal cases with immigration judges.
“Secretary (Kristi) Noem is reversing Biden's catch and release policy that allowed millions of unvetted illegal aliens to be let loose on American streets. This Administration is once again implementing the rule of law," the statement said.
"Most aliens who illegally entered the United States within the past two years are subject to expedited removals. Biden ignored this legal fact and chose to release millions of illegal aliens, including violent criminals, into the country with a notice to appear before an immigration judge. ICE is now following the law and placing these illegal aliens in expedited removal, as they always should have been," the statement continued.
"If they have a valid credible fear claim, they will continue in immigration proceedings, but if no valid claim is found, aliens will be subject to a swift deportation," the statement said.
'You can't blame judges for what ICE does,' retired jurist says
Immigration judges are being unfairly accused of cooperating with ICE, said John Richardson, who retired in 2018 after serving nearly 30 years as an immigration judge in Phoenix.
During his tenure, immigration judges as a whole worked hard to remain independent and impartial, Richardson said.
Richardson agreed that the ICE arrests happening outside immigration courts could fuel the perception that immigration judges are playing a role.
But he has seen no facts that immigration judges are cooperating with ICE or acting improperly and not impartially.
"You can't blame judges for what ICE does," Richardson said.
It is not unusual or improper for immigration judges to accept oral motions for cases to be dismissed especially during initial hearings when there has not been substantial investment in the case, Richardson said.
Prosecutorial discretion is very broad, Richardson said, "and almost absolutely the prerogative of a prosecutor, in this case ICE or Homeland Security."
Initial hearings taking place in immigration courtrooms are open to the public, so immigration judges can't tell ICE officers to leave, Richardson said. Immigration judges also can't provide legal advice, Richardson said. So warning immigrants that ICE officers are waiting outside might be crossing the line, he said.
Richardson said he agrees the ICE arrests outside immigration courts are "distasteful, it's not very kind, it is not very neighborly, it's not necessarily what Americans expect in regard to respecting other people."
"But we're in a new era," Richardson said.
Hundreds of thousands of people have come into the United States unvetted, Richardson said, and some have committed crimes. "So yes, the current administration, as I see it, is taking drastic steps" to deal with a longstanding problem. "The administration apparently has decided to confront that problem as best they can.," Richardson said.
'Distrust is built into the system,' immigration scholar says
Millions of undocumented immigrants arrived at the southern border during the Biden administration. Millions were paroled into the country after surrendering to border officials and asking for asylum. They were given notices to appear in immigration courts, where ICE has now been arresting some and placing them into expedited removal for swift deportation.
Some show up with young children. Scenes of fidgety children and mothers consoling crying babies have made immigration courts at times resemble nurseries. A box full of children's books helps keep kids occupied while parents wait for their cases to be called.
At the same time, ICE officers in plain clothes have been seen sitting in courtrooms when cases are dismissed. Others have been waiting outside the courtroom to arrest immigrants after they leave, said Rekha Nair, executive director of Phoenix Legal Action Network and an immigration attorney who has sat through hearings at Phoenix immigration courts.
"I've never seen anything like that before," Nair said.
"As soon as a case got dismissed in court, (people inside the courtroom) would somehow inform the people in the lobby or in the hallway and as the person exited, people in the lobby and people outside would kind of converge around them to detain them. And they knew exactly who to detain," Nair said.
Nair said during one recent immigration court session in Phoenix "it seemed obvious" the immigration judge knew beforehand which cases the DHS attorney was going to request be dismissed based on questions the judge asked. It was a day when ICE officers were present outside.
"This is very troubling, because the judge is supposed to be independent," Nair said.
Immigration judges can't provide legal advice, Nair said. But when immigrants ask what could happen if their cases are dismissed, immigration judges could let them know ICE officers might arrest them when they leave, Nair said.
Immigration judges are expected to be impartial. But for years, critics have raised concerns that they are susceptible to bias and political influence, said Evelyn Cruz, director of the immigration clinic at Arizona State University's Sandra Day O'Connor College of Law.
Immigration judges work for the U.S. attorney general, not the judicial branch, they have limited powers, and are at risk of being fired if they don't fall in line, Cruz said. Immigration courts also are stacked with judges who are former DHS attorneys, Cruz said.
The ICE arrests outside immigration courts could fuel a perception that they are cooperating with ICE, especially given that immigration judges and DHS, which includes ICE, are both part of the executive branch, Cruz said.
"Whether it is (happening) or it isn't, the implication in itself is problematic," Cruz said. "It creates distrust, and that distrust is built into the system."
Immigration judges 'really in a tough place,' policy expert says
The ICE arrests have been happening during a time when immigration judges are "really in a tough place," said Kathleen Bush-Joseph, a policy analyst at the Migration Policy Analyst.
They are under tremendous pressure because of a huge backlog of millions of cases, she said. On top of that, immigration cases can be highly complex and court rulings interpreting immigration laws are constantly changing, she said.
The Trump administration also has issued many memoranda, changing court policies and practices, including rescinding many of the policies put in place under the Biden administration, Bush-Joseph said.
News alerts in your inbox: Don't miss the important news of the day. Sign up for azcentral newsletter alerts to be in the know.
Many of the approximately 700 immigration judges were only hired recently to help plow through the backlog of cases, and therefore don't have a lot of experience, Bush-Joseph said.
At the same time, they are making decisions that can result in life or death, she said.
"People in immigration court are making claims about potentially being returned to places where they would face persecution or torture. So the stakes are incredibly high," Bush-Joseph said.