Checks and balances, maybe
View from the 27th floor
I was travelling over the last week, so I did not have much time to dwell on the Supreme Court decisions that came down. While I celebrated along with everyone else at the Court’s decision to uphold birthright citizenship, the tally over the last couple weeks has been pretty awful for immigrants. There have been decisions allowing the administration to end Temporary Protected Status (TPS), block asylum-seekers at the border, and exercise greater discretion at the border when green card holders return from abroad.
The judicial branch offers one of the critical “checks” on judicial and legislative power. But seeing it in action is bizarre, to say the least. Like every other branch of government, it’s subject to the political leanings of those within. It’s far from the neutral arbiter we learn about in high school government class.
Before ending up at the Supreme Court, most cases are decided by a Federal Circuit Court of Appeals. Cases are more likely to end up before the Supremes when several Federal Circuits have “split” on the same issue.
I have traditionally limited my practice of immigration law to the immigration courts and the Board of Immigration Appeals. But last spring, I filed my first “petition for review” before the Eighth Circuit Court of Appeals. That case finally came up for oral argument last month.
I showed up to court in a teal dress suit and navy blue jacket. I regretted my fashion choice almost immediately. The entire court room was filled with black suits and white button down shirts. I’ve previously heard people joke about how only new attorneys wear their “funeral clothes” to court. But perhaps circuit court is always a funeral.
My fashion faux pas did not affect my client’s case, since I had one of the best and brightest arguing on her behalf, a colleague from Kansas City. (And he knew the dress code!) I briefed the case extensively over the last year or so, but the arguments themselves focused on an obscure procedural issue. As I’ve written before, it’s mind boggling that my client’s future paths will be circumscribed by a decision on such minute puzzle pieces of legalese (specifically, whether equitable tolling is permissible or or not given the procedural posture of her case).
Circuit court was a culture shock. In addition to my ill-chosen clothing, my gender was off. Out of about thirty people in the courtroom, I was one of six women. One was the clerk, one argued a case, and three appeared to be college students there to observe. All three judges were old white men.
While these dynamics were surprising to me, I knew the federal level differed substantially from immigration court. As one immigration judge said, immigration court deals with “death penalty cases in a traffic court setting.” (Judge Dana Leigh Marks) The Eighth Circuit, on the other hand, gave two litigators 20 minutes each to argue about whether the color chartreuse was a functional feature of a water hose for trademark purposes. Some asylum cases aren’t even given 40 minutes.
In immigration court, procedures vary based on who is president. When my grandmother died several years ago, both the government attorney (prosecutor) and the judge offered to reset not just one, but both of my hearings that week. But earlier this year, a judge denied a continuance on a colleague’s case where the client had just given birth via c-section and was still on heavy-duty painkillers. He then found her not credible based on her difficulty testifying.
In “real” court, if a client doesn’t show up, a warrant might be issued for their arrest. In immigration court, if you are absent, you are ordered deported. In “real” court, the federal rules of evidence are strictly applied. In immigration court, evidence is admissible if it is relevant, and the judge can simply give it the weight it deserves - less or more depending on their inclination.
I’m not assigning the label of “real” just to be snarky. Immigration courts are administrative bodies under the US Department of Justice, not independent Article III courts. Article III judges receive lifetime appointments and salary protections under the Constitution. Immigration judges are employees of the executive branch and lack true judicial independence. Trump has fired more than 100 judges since January 2025. The rest are afraid to approve cases, because then they won’t have job security.
Women are overrepresented in immigration law. In all practice areas, women made up 38% of lawyers in the United States in 2022. That same year, AILA - the largest professional organization of immigration lawyers in the US - estimated that their membership was 63% non-male (women or “other”). This could launch a completely different analysis, because the factors driving female membership of the immigration bar are in fact the same factors influencing the makeup the legal profession as a whole.
I’m still waiting to hear what the Eighth Circuit will decide in my case. I am told that I had one of the best possible “panels” (the group of 3 judges hearing the case). I’m preparing to file another case with the Eighth, and next time I’ll know the dress code. There’s much more to say about the legitimacy of this system, but I’ll end this meandering post and save that for another time.