Johnson Law & Consulting

Last April I had an opportunity to speak with Ali Rogan on the PBS News Hour.

Ali Rogan:

President Trump has pursued an aggressive agenda of deportations and detentions since taking office. How did that political agenda impact the work that you and your colleagues were doing in the courts?

Jeremiah Johnson, Former Immigration Judge:

What you saw were, judges were given little time to make those important decisions. You saw an increase in cases. You saw pressure to decide cases. Dockets ballooned. So it didn’t allow judges the opportunity to take the time to consider the evidence and get everything right.

…

Well, if dockets ballooned in April, today they are about to burst. Mega Masters pump pressure into already overinflated courts, stretching the walls of justice dangerously thin. I remember reading a comment a while back suggesting that this particular commenter, let’s call him Brad Patriot, could singlehandedly reduce the backlog in about a month.

How hard can immigration decision making be? Just ask, “Where were you born?” and “How did you enter the United States?” Done.

Not so fast Brad. Let’s remember there are rules and laws governing decision making. Judges are required to fully develop the administrative record AND ensure due process. This means that judges must adequately explain the hearing procedures to the respondent, including what they must prove to establish a basis for relief. Judges must be engaged. They must ask questions and advise of apparent eligibility. As one court held, judges must “scrupulously and conscientiously probe into, inquire of, and explore for all the relevant facts.” Not just for one case, but for each case. Every case, every day. Due process can impose a demanding frame to what otherwise seems a straightforward inquiry.

But due process can also liberate a judge to do what’s right. In 2017 I returned to San Francisco after attending judge school. I had a week of shadowing more experienced judges. One of the detained judges took me aside for some words of advice.

“Headquarters will hound you about the numbers, be efficient and of course your response is yes – numbers matter, doing my best, being more efficient. But when you are in the court, throw all that out the window. Take as much time as you need to get it right. That does not mean to waste time, rather make sure you get it right. If it takes one hour, take an hour, if it takes five hearings, take five hearings. But get it right.”

To get it right means a full and fair hearing. Tell me your story.

“Have you ever been harmed in the past? “

“Why are you afraid of returning to your country?”

Tell me your story. Tell me.

Again and again judges must ask, and as the law requires, judges must listen. Listen and get it right.