The Case Against Absolute Judicial Immunity for Immigration Judges

A federal regulation states that immigration hearings shall be open to the public. Courts and scholars also have located a right to observe these proceedings in the First Amendment. And yet immigration judges (IJ) have excluded members of the press and other observers from hearings for no stated legal reasons, thus effectively eliminating public scrutiny of proceedings that affect millions of citizens and non-citizens in the United States. In response to a lawsuit pursuing monetary, injunctive, and declaratory relief after an IJ ordered guards to remove a reporter from a federal building, an Eleventh Circuit panel held IJs have absolute judicial immunity against litigation brought by observers.

This Article highlights legal errors in the Panel holding of this case of first impression. The Article analyzes the legislative history of policies on contempt powers and Congress’s limits on IJ powers, as well as offers quantitative and qualitative findings on the efficacy of internal agency misconduct complaint investigations. The statutory nature of IJ powers and the absence of any remedy for damages caused by conduct in excess of legal functions suggest a policy and legal case against absolute judicial immunity for IJs.