The Washington Times hyped a claim from a recently fired immigration judge who had a clear bias against immigrants that the Biden administration is engaged in “court packing on steroids” with its appointment of immigration judges. However, the Times failed to provide convincing evidence of such an effort. It also downplayed the multiple ways in which the Trump administration actually did politicize immigration courts, ignoring its record number of immigration judge appointments — and their unusually high level of deportations — and failing to mention that at least some of the initial batch of immigration judges hired by the Biden administration was approved under President Donald Trump.
The Times article, originally titled “EXCLUSIVE: DOJ engaged in ‘court packing on steroids’ with immigration judges,” centered on Matthew J. O’Brien, who was recently fired from the immigration judge position that he was hired for during the Trump administration. The article cited “at least a half-dozen judges hired during the Trump years” who were fired — six judges out of the more than 200 hired during the Trump administration — to support O’Brien’s claim that “it’s court packing on steroids. It’s court packing by deletion and then addition, because they’re getting rid of judges and they’re replacing them with people who meet their ideological framework.”
The Times article reported that “Mr. O’Brien was coming up on the end of his two-year probationary period, and the Justice Department, which runs EOIR, declined to convert his post to a permanent judgeship.” Yet the Times repeated O’Brien’s insistence that the firing “was political,” blaming the American Immigration Lawyers Association, which O’Brien claimed “calls the tune” in the department.
The Times article also dismissed the idea that the Trump administration had politicized immigration courts, only referencing a claim investigated and reportedly cleared by the inspector general that “the Trump administration had delayed or revoked hiring offers made during the Obama years.”
But the facts show that the Trump administration worked hard to shape immigration courts that would help realize its political agenda of reducing immigration. Besides Trump’s infamous profane comments about immigrants, Reuters reported that then-Attorney General Jeff Sessions addressed a large class of newly hired immigration judges by telling them that “the vast majority of asylum claims are not valid” and saying that if judges do their job, “the number of illegal aliens and the number of baseless claims will fall.” Reuters also explained that the Trump administration filled a whopping two-thirds of the immigration judge seats and that its judges “have disproportionately ordered deportation”:
The administration filled two-thirds of the immigration courts’ 520 lifetime positions with judges who, as a whole, have disproportionately ordered deportation, according to a Reuters analysis of more than 800,000 immigration cases decided over the past 20 years.
Judges hired under Trump ordered immigrants deported in 69% of cases, compared to 58% for judges hired as far back as the administration of President Ronald Reagan. Because hundreds of thousands of immigrants have cases before the court each year, that 11 percentage-point difference translates to tens of thousands more people ordered deported each year. Appeals are rarely successful.
The Trump administration also expanded the Board of Immigration Appeals in order to stack it with more anti-immigration hardliners and force more deportations. As Mother Jones reported in August 2019:
Between 2013 and 2018, the average immigration judge in the country approved about 45 percent of asylum claims. The six judges newly promoted to the board have all approved fewer than 20 percent. Cassidy granted 4.2 percent of asylum claims. Another appointee, Stuart Couch, approved 7.9 percent. For Wilson, the figure was just 1.9 percent.
Paul Schmidt, who chaired the Board of Immigration Appeals from 1995 to 2001, says the administration’s goal is to build a “deportation railway” in which cases move through the system as quickly as possible and then get “rubber-stamped by the Board.”
Until last year, the board had 17 members. The Trump administration expanded the board to 21 members, arguing it was necessary to handle an increase in appeals. That has allowed Attorney General William Barr to fill the panel with immigration hardliners.
By the end of Trump’s term in office, his Department of Justice bragged about its hiring spree that resulted in the “immigration judge corps at [the] highest level in history,” increasing from 306 to 520 judges, “an increase of nearly 70 percent.” Mother Jones also explained other actions from the Trump administration as an “intensifying effort to reshape immigration courts.”
Earlier this month, the Justice Department moved to eliminate the immigration judges’ union, which has been highly critical of the administration’s policies. On Monday, a regulation took effect that gives the head of the immigration courts, a political appointee, the power to decide appeals if judges do not hear them quickly enough. A rule that gives board members more authority to summarily deny appeals without issuing a full opinion takes effect on Tuesday.
The reality is, the Biden administration is taking some corrective action to fix the widespread damage the Trump administration did to America’s immigration courts by weaponizing them in support of its anti-immigration political agenda. Analysis after analysis explains how Trump “broke the immigration courts,” in the end more than doubling the case backlog to 1.3 million.