Prosecutors and Judges Work Together to Undermine the Rule of Law
The judiciary’s separation from other branches of government is a bedrock principle of the U.S. Constitution. When that independence is threatened, the rule of law suffers.
Take immigration law, my primary legal practice. Immigration judges are not in the impartial judicial branch, where they belong. They are part of the Department of Justice, within the executive branch, currently run by President Donald Trump who, in June, called for deportation of foreign entrants “immediately, with no Judges or Court Cases.”
Two months later, the appellate panel for Trump’s immigration courts — the Board of Immigration Appeals (BIA) — toed the line by issuing a decision that violates immigrants’ rights, accepts Trump administration arguments wholesale, ignores a recent Supreme Court decision, and bends congressional legislation beyond recognition. It is a case study of the partisanship inherent in non-independent courts.
On August 31, the BIA issued its decision in Matter of German Bermudez-Cota. Bermudez-Cota, an immigrant from Mexico, was asked to throw out his entire case because his notice to appear (NTA) was missing information. NTAs are documents issued to anyone suspected of unlawful presence in the United States. They’re supposed to start deportation proceedings by letting immigrants know about an upcoming court hearing.
In Bermudez-Cota’s case, his NTA did not include the time or date of the proceeding. On June 21, the Supreme Court acknowledged, in Sessions v. Pereira, that nearly all NTAs over the past three years “omit the time and date of the proceeding.” Despite the possibility that invalidating so many NTAs might cause the government hardship, the high court ruled such NTAs were legally defective, because congressional legislation unmistakably requires that NTAs include “the time and place at which the proceedings will be held.”
Although this should have been fatal to the government’s case against Bermudez-Cota, the BIA ruled the NTA was valid. Pereira, as the BIA chose to understand it, was only about NTAs in the very specific context of “cancellation of removal,” which is a form of relief from a deportation order. To receive cancellation of removal, you have to show, among other things, that you’ve been in the United States for 10 years before receiving an NTA.
In arguments before the Supreme Court, the Department of Homeland Security maintained that Wescley Fonseca Pereira received an NTA before he spent 10 years in the country. Legally, this means he was not eligible for cancellation of removal. But the Supreme Court agreed with Pereira that his NTA was defective because it lacked the congressionally mandated time stamp. “Thus, based on the plain text of the statute,” Pereira’s 10-year clock did not stop when he received the defective NTA, and he was still therefore potentially eligible for cancellation of removal.
In short, the Supreme Court in Pereira held that NTAs without time stamps were defective. Pereira’s cancellation of removal case was therefore affected by a defective NTA.
The BIA in Bermudez-Cota twisted this holding to mean that NTAs without timestamps were defective only in the context of cancellation of removal. Since Bermudez-Cota’s case didn’t involve cancellation of removal, the BIA couldn’t terminate his case because of his faulty NTA.
But the Pereira opinion was clear that the specific ruling involving cancellation of removal depended on the general holding about defective NTAs, which should favor Bermudez-Cota. Nothing in the opinion instructed narrowing the holding only to cancellation of removal cases.
To support its weak position, the BIA bowed to the authority of federal regulations and lower court decisions. But federal regulations can’t supersede congressional legislation, and recent Supreme Court opinions always overrule contrary lower courts.
The BIA’s judges are knowledgeable, sharp, and experienced veterans of the law. They know better than to adopt this stance. Their decision in Bermudez-Cota reads like the coerced confession of a prisoner.
But, in a sense, they have no choice but to execute the policies of their political bosses. Just this week, Attorney General Jeff Sessions instructed his immigration judges that their job was to “reject unjustified and sometimes fake claims” of immigrants’ lawyers. Notably, he did not suggest that they reject frivolous arguments advanced by Department of Homeland Security attorneys on the other side of the case.
It was no surprise, then, to see the BIA in Bermudez-Cota lift directly from DHS attorneys’ weak, boilerplate arguments against many thousands of Pereira-based motions to terminate cases on the basis of faulty NTAs. Immigration attorneys saw this coming as soon as cases started being terminated after Pereira. The executive branch had to stop the bleeding, and the BIA has finally executed its policy. Now, no lower-level immigration judge can rule against DHS on Pereira motions, despite clear Supreme Court precedent.
When judges and prosecutors work together within the same branch of government, the rule of law suffers. The executive branch does not have the power to “say what the law is” — the judicial branch does. To reclaim the integrity of the judiciary, jurists must remind the BIA that immigration law is not whatever DHS attorneys decide it ought to be.
Michael Zigismund is an immigration attorney and a Young Voices writer.