Politically Connected Immigration Judges Unlikely to Face Consequences
DOJ Officials May Have Committed a Crime in Appointing Them
By EMMA SCHWARTZ
July 30, 2008—
Justice Department officials likely broke the law in getting Francis Cramer his job. But that doesn't mean he's going to have to give it up any time soon.
Bush appointees gave Cramer, a longtime friend of Karl Rove, a coveted seat as a federal immigration judge in 2004. He was one of several dozen judges who got their jobs on the immigration bench in a system that based appointments on political connections, beliefs and loyalty to President Bush and the Republican party, an internal Justice Department investigation found this week.
Taking political persuasion into account in these positions is against the law because immigration judges are considered career civil service jobs not political ones. Once these judges are in, they are almost certainly in for good, experts say. And many fear their appointment will have serious consequences for the way immigrants' cases will be judged.
"There is no accountability," says Nancy Morawetz, an immigration law professor at New York University Law School. "The net effect is that the people still on the bench are people appointed through an improper process."
There was little in Cramer's background as a New Hampshire-based commercial and personal injury lawyer that exposed him to immigration law. But Cramer had something better: political connections. He'd worked for Republican Sen. Judd Gregg and most importantly, the report found, he was childhood friends with Rove, one of President Bush's closest advisors.
Cramer's connections helped him win a nomination to the U.S Tax court, the IG found, but his nomination stalled after the American Bar Association raised questions about his qualifications. So in 2004, D. Kyle Sampson, then counselor to Attorney General John Ashcroft, who knew Cramer was a Rove loyalist, helped Cramer land a job as an immigration judge in Boston in 2004, according to the inspector general report.
Cramer's situation was hardly an anomaly. Beginning late in Attorney General John Ashcroft's tenure and under Gonzales, political appointees at the Justice Department took over the hiring of immigration judges from career staff, routinely taking names from the White House, Republican senators and other party loyalist, the inspector general report found.
Another example was the case of Garry Malphrus, who had worked with Sampson on the Senate Judiciary Committee and later served as an associate director on the Domestic Policy Council in the Bush White House. When Malphrus contacted Sampson in November 2004, asking about an immigration judge post, it didn't take long for Malphrus to get a spot in Arlington, Va., without ever submitting an application or having an interview, as applicants historically have, according to the report.
And after his appointment, Malphrus, and another Bush administration appointed immigration judge Mark Metcalf in Florida, continued to help Justice Department officials with recommendations of candidates, the report said. Among Malphrus' criteria for recommendations was loyalty, which he told inspector general investigators meant "loyalty to the Bush Administration."
"If you're picking judges based on political affiliation, Democrat, Republican or whatever, rather than on their experience and knowledge, then you are going to have a decision making process that's not as good," says Bo Cooper, a former general counsel of the Immigration and Naturalization Service now in private practice. "The chances are very high of long term negative implications for the immigration court system."
Indeed, when Justice Department Inspector General Glenn Fine was asked about this today he replied: "Can I guarantee that all are qualified immigration judges? No, I can't."
He continued: "I think it is a concern. That's the harm of this process because they weren't required to compete against all the other qualified candidates who didn't get an opportunity to do it."
The implications on particular immigration cases will depend on the individual judge, but many immigration attorneys worry that unqualified appointments could have particularly dire consequences on those cases because of the central role judges play in the process.
Unlike in state or federal courts, immigration courts don't guarantee individuals a government-appointed attorney so most appear before a judge without representation. What's more, because of the huge backlog in immigration cases appeals are very limited, making the efforts of the initial judge all the more critical, say immigration attorneys.
In his testimony, Fine emphasized, the number of people appointed under this flawed process was small, between 20 and 40 out of 230 judges, and some did not make it past the probationary period.
And, he added, the best way to handle the situation was to ask officials at the Executive Office for Immigration Review to manage the program carefully "and if they're not and are not able to be immigration judges, they ought to take action."
The inspector general's report found that key Justice Department officials, including former White House liaison Monica Goodling and Sampson, "violated federal law and Department policy" when they "inappropriately considered political or ideological affiliations in evaluating and selecting candidates" for career positions. This flawed process only came to a halt in 2007 after a civil lawsuit challenged the newly designed appointment system, the report found.
Of course, political connections alone don't determine how a judge will rule. And immigration attorneys say not all of them have been bad. Harvey Kaplan, an immigration attorney in Boston, says he's worried about how some judges have treated his clients. But others, like Cramer, have "turned out to be a good judge," he says.