By Josh Gerstein
February 17, 2016
A federal appeals court is wrestling with the question of whether the government should be forced to make public the names of immigration judges accused of misconduct either on or off the job.
A three-judge panel of the D.C. Circuit heard arguments for nearly an hour Tuesday over a Freedom of Information Act request the American Immigration Lawyers Association filed for all records related to the discipline process for immigration judges.
The Justice Department released portions of those files, but redacted the names of the judges and replaced them with codes.
Justice Department lawyer Javier Guzman argued that the judges are low-level employees, similar to FBI agents, Drug Enforcement Agency agents or so-called "line" Assistant U.S. Attorneys. A lower court judge accepted that comparison.
However, a lawyer for the immigration lawyers' group said the immigration judges exercise more independent authority than any of those personnel and that the law delegates that authority directly to the judges.
"Immigration judges are making life or death decisions and they're required by law to use their independent judgment," said Julie Murray of Public Citizen Immigration Group. "In many cases, the buck stops with them."
Immigration judges are employees of the executive branch of government who work for an agency within the Justice Department. Their decisions can be appealed within the Justice Department and then to a federal appeals court.
Murray said it was particularly important that the public be able to obtain the names of judges who have been repeatedly accused of misconduct but not disciplined.
"The public has an interest in going to the courtroom of a judge who's been subject to 20 complaints" but not punished," she said. "That can't be done here."
Guzman defended the government decision to excise all the names of judges from the released records.
"It is appropriately dealt with categorically," he said. "They do have the job title of judge but ultimately they are career attorneys within the department."
Two of the three judges on the panel, Patricia Millett and Sri Srinivasan—both of whom are the subject of speculation as possible replacements for Justice Antonin Scalia on the Supreme Court—appeared to have some sympathies with the immigration lawyers' group position.
Millett seemed to reject the government's position that immigration judges were similar to other highly-skilled but low-level employees. "It's not just the job title of judge—they really do judging," she said. "A good percentage of the day they really are exercising enormous amounts of discretion that are incredibly consequential in a way that seems somewhat different from somebody who's a computer processor inside the Justice Department."
Millett appeared to be eager to differentiate immigration judges' alleged misconduct on the bench or in rulings from their misdeeds in the office or in their private lives. She repeatedly suggested the parallel there to junior government employees was more apt.
For his part, Srinivasan seemed focused on differentiating what he called "one off" unsubstantiated complaints from instances where judges were the subject of numerous complaints from their colleagues or the public.
Srinivasan also dwelled at some length on another aspect of the case: the Justice Department's decision to delete information it deemed "non-responsive" from email chains discussing immigration judge discipline issues.
The immigration lawyers' group objected to that move, saying it unfairly narrowed their FOIA request. But Srinivasan said the meaning of an individual record was less clear in the case of an electronic system like email than when letters or memos are involved.
Millett took a different tack, arguing that the comments in an email chain adjacent to discussion of a complaint could show that the agency wasn't taking it seriously, if talk abruptly turned to a vacation or a trivial matter. "How do you know it's not part of the story?" she asked.
Murray noted that in at least one instance an email chain about the department's response to a complaint of anti-Muslim bias contained a joke that was deleted from the records made public under FOIA.
While Srinivasan and Millett seemed open to ruling against the categorical withholding of immigration judges' names, the third judge on the panel, Karen Henderson, asked fewer questions. That left her views harder to read.
Srinivasan and Millett are appointees of President Barack Obama. Henderson was appointed by President George H.W. Bush.
For more information, go to: www.beverlyhillsimmigrationlaw.com