Nearly as much as any other person, and more than any other judge, retired judge Dana Leigh Marks is responsible for how immigration law works in the U.S. In 1987, as a 32-year-old lawyer, she argued and won a seminal case before the Supreme Court, INS v. Cardoza-Fonseca, which made it easier to qualify for asylum and helped hundreds of thousands stay in the country.
She soon became one of the first lawyers tapped from private practice to become an immigration judge. Marks made it her mission to convince a generation of immigration lawyers to become judges themselves.
I met Marks 10 years ago, when she was in the middle of a 14-year run as the head of the National Association of Immigration Judges. Back then, the Obama administration was pushing immigration courts to speed up deportation of unaccompanied minors. Marks told me that the only way to ensure the independence of immigration judges was to move their courts out of the executive branch of government, insulating them from political pressure by the president.
ADVERTISEMENT
Today, Marks’ worst nightmares of what could happen to an immigration court lacking independence are coming true. San Francisco Immigration Court is a shell of what it was when she retired in 2021. On Tuesday, the Trump administration fired yet another San Francisco immigration judge. That brings the total to seven — a third of the bench gone since the beginning of the year.
When I asked Marks how she was feeling, she wrote back: “No fun watching your professional life’s work of 45+ years being destroyed in six months.”
The following interview, conducted over two sessions July 29 and Sept. 9, has been condensed and edited for length and clarity.
San Francisco Immigration Court is in the news all the time because of Immigration and Customs Enforcement presence there, cuffing and taking away asylum seekers who show up for their court dates. What do you think about what’s happening at your old workplace?
What is happening is that established law is being disregarded, if not outright violated at an astonishing pace.
[During my tenure], ICE was extremely rarely allowed to make arrests in the courthouse because of the chilling effect it would have on people appearing in court. Or the chilling effect it would have on their ability to obtain witnesses that they might need and have their witnesses come forward and testify.
What about this tactic employed by the Department of Homeland Security in which it requests the dismissal of a case, then ICE immediately detains that person? Seems counterintuitive.
In the old days, if DHS wanted the case dismissed, it was on the assumption that you were not an enforcement priority, and you would be fine. Now, they’re taking people into custody immediately, because they no longer have the protection that has traditionally been afforded to people who had ongoing proceedings before the court.
[The government] is trying to bypass the immigration court system and make it irrelevant by going through a process called expedited removal, which is conducted by DHS officials, not by immigration court judges.
For years, expedited removal proceedings only occurred when someone had been present in the United States for less than two years and was within 100 miles of the border. Now they’ve said it applies nationwide, and they’re putting the burden of showing you’ve been here for more than two years on applicants. Do you walk around with rental receipts for two years in your pocket in case you bump into ICE? No.
Having worked under the full Trump administration before, there were management decisions that I didn’t agree with, but I did not feel there was such a blatant disregard of the substantive law. Now I feel like there's no consideration given to the substantive law. At most, there’s very superficial lip service.
I imagine you’ve got strong feelings about the judge firings. You were head of the National Association of Immigration Judges union for 14 years. The DOJ has terminated a third of the judges at San Francisco Immigration Court – a lot of them were people you worked alongside. And across the country, dozens more have been fired. Many wonder how these firings can be legal.
It is a violation of law in most of the cases.
There’s a difference between [a judge] who is on probation — that means during their first two years. If you’re on probation, you are an at-will employee, so they can let you go because they don’t like the color of your tie that day.
But everyone else is supposed to be protected under the civil service laws and have an opportunity to go to the Merit Systems Protections Board and be fired only for cause.
[Many of the people] that are being fired are not on probation. They are not being afforded the traditional civil service protections, because the administration is taking the legal position that the president has sole unfettered authority over anyone employed in the executive branch.
This is unheard of in the 45 years that I’ve been an immigration attorney.
What I really don’t get is why the Trump administration is getting rid of judges when there’s a long backlog of cases. People are waiting years for their chance to see a judge and plead their case.
The reason the courts are so backlogged is because Congress and the Department of Justice ignored the need to hire more immigration judges for the past decade or more. For years they added money for enforcement and ignored the immigration courts.
That clogged the system, because we didn’t have enough judges — when it was obvious that the simple solution to the backlog is hiring enough people to decide those cases.
The Trump administration is reportedly planning to appoint hundreds of military lawyers as temporary immigration judges. What do you think of that plan? What’s the transition going to be like for those new judges?
It's very demeaning to the expertise of the current immigration judge corps. Immigration law is recognized as being the second-most-complex area of law in the country, second maybe to tax law.
So they’re proposing to take on judges who have absolutely no background in immigration law. They say they’re going to train them, but their term is only six months. Currently immigration judges are trained and mentored for a full year. So they’re not even going to be there long enough to have the normal immigration judge training applied to them.
Why should someone in this country who doesn’t have an immigrant in their life with an open asylum case care about what’s happening in immigration courts?
Number one, any time due process is diminished for anyone, that creates a risk for everyone. It starts setting a precedent where, as U.S. citizens, you would be the next step with having your due process rights encroached upon.
Number two, the immigration courts are the only face of the American justice system that most noncitizens face, because the majority are not criminals. So if they have to leave and go back to their home country, I want them to respect the American justice system and feel like they were treated fairly and not go back bitter and hating America, because who knows what will happen next if that’s the case? Are those people ripe to be radicalized as anti-Americans?
But there are very few American citizens who are not touched by this fairly directly. The only good thing about the harshness of what the Trump administration is doing is that people who otherwise had no reason to know anything about immigration laws are being outraged, as they have people in their orbit — be it coworkers or members of their church congregations or people who have helped them in constructing their garage or in weeding their garden. These normal people that they never bothered to find out about — those are the people who have no legal way to regularize their status. It’s heartbreaking.
Up until recently, it didn’t touch [the lives of citizens] directly, but Trump is making sure it affects everybody.