DAG Rosenstein Addresses New Immigration Judges

On March 15, 2019, Deputy Attorney General Rod Rosenstein delivered remarks at the investiture ceremony for 31 new immigration judges [PDF version].

The Deputy Attorney General's (DAG) remarks focused on the enforcement of immigration laws and the asylum backlog.

Overview of the Speech

DAG Rosenstein noted that there may be more than 44 million people who were not citizens at birth in the United States today, “the largest share in more than a century.” He added that, on an annual basis, “we generously extend lawful permanent resident status to more than one million people, and we allot hundreds of thousands of student visas and temporary work visas.” The DAG said that it was no surprise that so many people want to immigrate to the United States, but that “[w]e cannot take them all.”

In light of the fact that the United States must regulate immigration, the DAG stated that “[f]or our system to be fair, it must be carried out faithfully and equitably.”

Then, the DAG addressed the new immigration judges directly. He told them that they were “not only judges,” but “also employees of the United States Department of Justice.” The DAG then elaborated on the meaning of the fact that immigration judges are employees of the Department of Justice rather than members of the judiciary branch: “in addition to your adjudicative function — finding facts and applying laws — you are a member of the executive branch.” The effect of this, explained the DAG to the new immigration judges, was that they must “follow lawful instructions from the Attorney General, and … share a duty to enforce the law.”

DAG Rosenstein then moved to criticize aliens who violate the immigration laws. He noted that the Department of Homeland Security (DHS) apprehended 66,000 aliens who had illegally crossed the border in February. He added that DHS is apprehending about 3,000 aliens at the border every day, and “[m]ost of them cross the border unlawfully, between ports of entry.” The DAG stated that it was a choice, not a necessity, to violate the immigration laws, and that aliens who illegally cross the border “expose themselves and their children to abuse,” often by “pay[ing] criminal smugglers.” He noted that notwithstanding this willful lawbreaking, “our legal system protects them.”

However, the DAG took the position that our legal system's protections for aliens who cross the border illegally “creates a staggering volume of immigration cases that require resolution.” He attributed the increasing size of the backlog primarily to “the significant increase of asylum applications.” To this effect, the DAG stated that “[a]sylum applications have more than tripled in less than five years.” The DAG emphasized for the new immigration judges that “[t]he law authorizes asylum only for victims who suffered persecution or have a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or because of their political opinion.”

Having criticized those who violate the immigration laws, DAG Rosenstein stated: “Other reasons for seeking to immigrate may be rational and even laudable. We certainly understand why foreigners wish to come to America in search of better opportunities for themselves and their children. America is a great nation that does not need walls to keep its citizens from leaving, like the Soviet Union. We build walls only to protect ourselves and enforce our rules.”

The DAG reminded immigration judges that it is their duty “to honestly find the facts and faithfully apply the laws, so that people obtain asylum only if they qualify for it under the statute.”

Regarding the backlog of cases, the DAG stated that the Department of Justice was taking steps to resolve it. He stated that “[s]ince President Trump's inauguration, the Department of Justice has hired more immigration judges than in the previous seven years combined. We now employ the largest number of immigration judges in history. There are now 48 percent more immigration judges than three years ago, and 71 percent more than five years ago.”

In addition to adding more immigration judges, the DAG touted improved efficiency at the Executive Office for Immigration Review (EOIR). He stated that they have had “great success using video teleconference technology” [see blog]. Addressing the immigration judges, he stated that “ultimately we are depending on you, both to perform your duties expeditiously, and to let us know when you identify opportunities for improvement.” He told them that “[w]hether the immigration backlog continues to grow depends in large part on how immigration judges discharge their duties.” He concluded by expressing confidence in the new immigration judges, stating that they were chosen for their “qualifications, [] legal skills, and [] personal integrity.”

Take-Away

DAG Rosenstein emphasized some of the same points that were points of emphasis for former Attorney General Jeff Sessions. First, he blamed the growing backlog of cases winding through immigration courts primarily on the influx of asylum cases coming from border crossers, both legal and illegal. Second, he implicitly suggested that, in addition to the influx of asylum cases, the backlog has increased because of an over-broad application of the asylum rules. Third, DAG Rosenstein took a very narrow view of the independence of immigration judges, emphasizing that they are employees of the Department of Justice with an obligation to follow lawful orders from the Attorney General. In light of several recent Attorney General precedent decisions on issues such as administrative closure [see article] and continuances [see article], the DAG's highlighting of this point sends a clear signal that the new immigration judges are expected to faithfully follow the Attorney General precedents and policies.

In short, the DAG's remarks evince that the Department of Justice expects immigration judges to complete cases expeditiously and in line with Department policies. In general, the recent policy changes have been vastly more favorable to the Government than to aliens in immigration proceedings. The DAG's remarks suggest that even with changes in the leadership of the Department of Justice [see article] — including the DAG himself in the near future — we should not expect any significant shifts in DOJ policy.